Nakamoto v. Kawauchi.

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Electronically Filed
Supreme Court
SCWC-13-0004947
08-MAY-2018
08:06 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

PATRICIA NAKAMOTO, Petitioner/Plaintiff-Appellant,

vs.

JAMAE KAWAUCHI, in her individual and official capacity
as County Clerk, DOMINIC YAGONG, in his individual and official
capacity as Chairman, Hawai#i County Council, County of Hawai#i,
CORPORATE SPECIALIZED INTELLIGENCE AND INVESTIGATIONS LLC,
Respondents/Defendants-Appellees.
(CIVIL NO. 12-1-0466)

--------------------------------------------------------

SHYLA A. AYAU, Petitioner/Plaintiff-Appellant,

vs.

JAMAE KAWAUCHI, in her individual and official capacity
as County Clerk, DOMINIC YAGONG, in his individual and official
capacity as Chairman, Hawai#i County Council, County of Hawai#i,
CORPORATE SPECIALIZED INTELLIGENCE AND INVESTIGATIONS LLC,
Respondents/Defendants-Appellee.
(CIVIL NO. 12-1-0467)
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SCWC-13-0004947

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-13-0004947)

MAY 8, 2018

RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY RECKTENWALD, C.J.

I. Introduction

This case concerns common law tort claims in the

employment context. Petitioners Patricia Nakamoto and Shyla M.

Ayau (collectively, “Petitioners”) were employees of the County

of Hawai#i (the County), whose employment was terminated

following an investigation into alleged employee misconduct,

including the use of a County Elections Office warehouse for

private business purposes and to hold parties at which alcohol

was consumed. An article was published in a local newspaper

about the terminations, which quoted County officials,

Respondents Jamae Kawauchi (Kawauchi) and Dominic Yagong

(Yagong), as making various statements about the terminations.

Petitioners brought the present action against the

County, Kawauchi and Yagong in both their official and individual

capacities, and Corporate Specialized Investigations and

Intelligence Services, LLC (CSII), a licensed private

investigation company which the County hired to conduct the

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investigation. Petitioners alleged that the defendants had

caused defamatory statements about them to be published in the

local newspaper, and that the investigation had been conducted

negligently.

The circuit court granted the County’s motion to

dismiss, finding that Petitioners’ claims were barred by the

Workers’ Compensation Law (WCL) because Petitioners’ alleged

injury to their reputations arose through the course and scope of

their employment.1 The circuit court also granted summary

judgment in favor of Kawauchi and Yagong, finding that

Petitioners had failed to adduce evidence raising a genuine issue

of material fact that Kawauchi and Yagong had made false

statements about them. Finally, the circuit court granted

summary judgment in favor of CSII, finding that as a third-party

investigator, it had no duty towards Petitioners.

Petitioners appealed to the Intermediate Court of

Appeals (ICA), which affirmed the circuit court in all respects,

except that it held that the circuit court erred in holding that

allegedly defamatory statements made after termination were

barred by the WCL. However, the ICA did not vacate the circuit

court’s grant of the motion to dismiss, because it held as a

matter of law that Kawauchi’s and Yagong’s alleged defamatory

1
The Honorable Elizabeth A. Strance presided.

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statements were true.

On certiorari, Petitioners raise several issues. They

argue that the ICA erred in holding that the WCL exclusivity

provision covers reputational injuries. Petitioners also argue

that the ICA erred in holding that Kawauchi’s and Yagong’s

statements were true as a matter of law. Finally, Petitioners

argue that the ICA erred in holding that CSII did not owe a duty

to Petitioners to conduct an objective investigation.

First, based on the language and purpose of the

statute, we hold that the WCL’s bar on claims for injuries

incurred in the course of employment does not extend to injuries

to a person’s reputation. Accordingly, employees may bring

defamation and false light claims against their employers.

Second, we affirm summary judgment in favor of

Kawauchi, but vacate summary judgment in favor of Yagong in his

individual capacity, because we conclude that whether Yagong’s

allegedly defamatory statements were true involves a disputed

question of material fact. Accordingly, we also vacate the

circuit court’s dismissal of Petitioners’ defamation and false

light claims against the County and Yagong in his official

capacity, as Petitioners can assert those claims based on our

holding that those claims are not barred by the WCL.

Finally, we conclude that CSII owed a legal duty of

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care to Petitioners, because we hold that licensed private

investigators owe a duty of care to the subjects of their

investigations. We vacate and remand for a determination of

whether CSII breached that duty.

II. Background

A. Circuit Court Proceedings

Nakamoto and Ayau filed separate complaints in circuit

court. Both complaints named as defendants Kawauchi and Yagong

in their official and individual capacities, the County, CSII,

and Doe individuals and entities.

1. Allegations in the Complaints

Taken together, the complaints give the following

account of the termination of Petitioners’ employment at the

County. Nakamoto began her employment at the County of Hawai#i

Elections Division in 1982, and her title was Election Programs

Administrator when she was fired. Ayau was hired as a full-time

elections clerk in 2005, and at the time her employment was

terminated, her title was Senior Elections Clerk.

In July 2011, Kawauchi, who was the County Clerk, and

Yagong, who was the County Council Chairman, inspected a

privately-owned warehouse in Hilo that had been leased to the

County to store equipment for the Office of Elections. There

they “observed items that they concluded were violations of

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County policies”; they subsequently “identified and targeted”

Petitioners and other County employees “to be terminated.”

Kawauchi and Yagong hired CSII to investigate the apparent

violations of County policy, and they “pre-determined a

particular course of action” against Petitioners and other County

employees.

CSII conducted its investigation, and in September

2011, it submitted an “Investigative Report,” which Petitioners

attached as an exhibit to their respective complaints. The

report indicated that a County employee, Glen Shikuma, had

operated a private sign-making business from the warehouse. The

report also found that “on more than one occasion alcoholic

beverages have been consumed” by employees at the warehouse, and

that a “‘year-end get-together’ when alcoholic beverages were

being consumed” was held at the warehouse. The report indicated

that Petitioners admitted to attending year-end parties at the

warehouse, but denied knowledge of Shikuma’s unauthorized

business activities.

Kawauchi held pre-termination hearings for both

Petitioners. The complaint alleged that during the hearing,

Nakamoto’s union representative asked Kawauchi for copies of the

County’s policies that Nakamoto had allegedly violated, and

Kawauchi replied that “she did not know what the policies were

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and that she would look them up and send them to” Nakamoto and

her union representative.

On January 9, 2012, Kawauchi sent Ayau a termination

letter which “falsely accused” her of misconduct, including

violating the County alcohol policy. Kawauchi sent Nakamoto a

notice of termination, postmarked January 10, 2012. The notice

accused Nakamoto of violating the County alcohol policy,

conducting personal or other business unrelated to County

business at the elections warehouse, dereliction of duties as the

election program administrator, and storing confidential

elections information unsecuredly.

On January 12, 2012, two to three days after Kawauchi

sent Petitioners their notices of termination, the Hawai#i

Tribune Herald newspaper published an article entitled, “County

elections workers fired,” detailing the termination of

Petitioners and other County employees in connection with the

alleged misconduct at the warehouse. The complaints recounted

the following excerpts from the article:

The infractions dealt with “violations of county
policy,” the Hamakua councilman [Yagong] said
Wednesday.

. . .

The investigation started with Shikuma, who is accused
of running a sign printing business out of the
elections warehouse and also storing alcohol there.

. . .

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One source said he’s seen Shikuma storing alcohol
bottles in the warehouse and also attending a year-end
party, complete with alcohol, held in the parking lot.

Petitioners asserted that Nakamoto received permission

to hold end-of-year potlucks at the elections warehouse. They

excerpted from, and attached to their complaint, written

statements from former Hawai#i County Clerks Kenneth Goodenow and

Casey Leigh. In his statement, Goodenow asserted that he had

authorized the holding of a post-election potluck in 2010, and

that he was not questioned by an investigator about the event or

Petitioners’ terminations. In her statement, Leigh stated that

the post-election potluck was held only in the parking lot of the

elections warehouse, that she did not object to the party, and

that “the private investigator who looked into the allegations of

wrongdoing against election staff members never contacted me,

even though both the County Clerk and Council Chair Yagong were

aware that I had been the Clerk during the period of the

allegations against Ms. Nakamoto.”

Petitioners concluded that Kawauchi, Yagong, and CSII

“leaked false and misleading information to the media concerning

[Petitioners’] termination.”

Nakamoto grieved her dismissal, and on June 21, 2012,

the County rescinded the dismissal and agreed to her

reinstatement subject to a ten-day suspension. Ayau resumed her

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employment on September 4, 2012, and the County agreed to her

transfer to the County of Kaua#i.2

The complaints list five counts against all defendants:

I) defamation per se; II) defamation per quod; III) false light;

IV) negligent investigation; and V) negligent infliction of

emotional distress (NIED).

2. Circuit Court Proceedings

a. The County, and Kawauchi and Yagong in Their
Official Capacities

The County3 filed motions to dismiss both complaints,

arguing that Petitioners’ claims were barred by the WCL’s

exclusivity provision4 because their claims arose through the

course and scope of their employment. The County also argued

2
While Ayau’s complaint does not allege that she grieved her
dismissal, other materials in the record indicate that she grieved her
dismissal.
3
Specifically, the motions were filed on behalf of the County, and
Kawauchi and Yagong in their official capacities. All subsequent submissions
by the County likewise included Kawauchi and Yagong in their official
capacities.
4
HRS § 386-5 (1993) provides:

The rights and remedies herein granted to an employee
or the employee’s dependents on account of a work
injury suffered by the employee shall exclude all
other liability of the employer to the employee, the
employee’s legal representative, spouse, dependents,
next of kin, or anyone else entitled to recover
damages from the employer, at common law or otherwise,
on account of the injury, except for sexual harassment
or sexual assault and infliction of emotional distress
or invasion of privacy related thereto, in which case
a civil action may also be brought.

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that the claims against Kawauchi and Yagong in their official

capacities “are merely duplicative of the claims against the

County and must be dismissed.” The circuit court granted the

County’s motions on all five of Petitioners’ claims, agreeing

with the County that the claims were barred by the WCL’s

exclusivity provision.

b. Kawauchi and Yagong in Their Individual Capacities

Kawauchi and Yagong, in their individual capacities,

filed motions to dismiss Petitioners’ complaints. In their

opposition, Petitioners requested that the court convert the

motions to dismiss into a motion for summary judgment. The

circuit court granted that request, and provided that the parties

could supplement their motion and opposition. The parties

provided supplemental summary judgment briefing.

In their motions, Kawauchi and Yagong argued that

Petitioners’ claims were barred by the WCL because their claims

against Kawauchi and Yagong in their individual capacities were

identical to those in their official capacities, and Petitioners

failed to meet the Iddings v. Mee-Lee, 82 Hawai#i 1, 919 P.2d 263

(1996) pleading standard for willful and wanton conduct under HRS

§ 386-8.5

5
HRS § 386–8 extends immunity from suit to an injured worker’s
co-employees, unless the co-employees’ conduct was willful or wanton.
(continued...)

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Kawauchi and Yagong also argued that Petitioners failed

to allege which statements made by Kawauchi and Yagong were

false. They argued that Nakamoto’s complaint acknowledges that

Nakamoto “was relieved of her duties due to her violation of the

County’s zero tolerance alcohol policy.” Kawauchi and Yagong

argued that the results of CSII’s investigation were undisputed

facts. Kawauchi and Yagong included declarations explaining that

they had relied on information contained in CSII’s investigative

reports in deciding to terminate Petitioners. They argued that

CSII reported that Nakamoto admitted that she was present at an

elections warehouse party, and that Elton Nakagawa stated that he

witnessed Nakamoto drinking alcohol. The CSII reports attached

as exhibits stated that CSII had interviewed Ayau, and that Ayau

admitted that she had consumed alcoholic beverages at the

elections warehouse. CSII’s reports also included transcripts of

employee interviews, including that of Nakamoto, in which she

admitted that she was present at an elections warehouse gathering

5
(...continued)
Iddings, 82 Hawai#i 6, 919 P.2d at 268. This court in Iddings held that
conduct is willful and wanton when it is:

(1) motivated by an actual intent to cause injury; or
(2) committed in circumstances indicating that the
injuring employee (a) has knowledge of the peril to be
apprehended, (b) has knowledge that the injury is a
probable, as opposed to a possible, result of the
danger, and (c) consciously fails to avoid the peril.

Id. at 12, 919 P.2d at 274.

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during which others had consumed alcohol, and that of Nakagawa,

who stated that he saw Nakamoto drinking alcohol.

Kawauchi and Yagong argued that it was an undisputed

fact that they terminated Petitioners in order “to perform their

official duties and enforce County policy,” and that the

terminations were based solely upon “evidence they each observed

and the findings and results contained in the CSII Investigative

Reports.” They argued that it was an undisputed fact that,

“[n]otwithstanding these findings . . . without ever seeking (or

gaining) the approval of either Kawauchi or Yagong,” the County

agreed to reinstate Petitioners’ employment.

Petitioners argued in opposition that Kawauchi and

Yagong made false statements concerning the basis of Nakamoto’s

and Ayau’s terminations. They argued that they did not commit

the underlying violations, as evidenced by the fact that their

terminations were reversed. Petitioners argued that Kawauchi and

Yagong acted against County instructions in terminating

Petitioners. They quoted an excerpt from, and attached as an

exhibit to their opposition, the deposition of the County’s

Director of Human Resources, Ronald Takahashi, who stated that,

in approximately July or September of 2011, before Petitioners

were terminated, he met with Kawauchi and Yagong regarding the

results of CSII’s investigation, and told them that there was not

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enough evidence from CSII’s investigation to terminate Nakamoto.

Petitioners also attached as an exhibit a letter from

Nicholas Hermes, a County Human Resources Manager, to Kawauchi

regarding Petitioners’ grievances. Hermes stated that he was

“tremendously disappointed” with the Office of the County Clerk’s

“inaction toward routine processing” of the grievances and that

it was clear that the grievance delay was due to the Office of

the County Clerk’s “lack of assertiveness and suspected willful

stalling.” Petitioners also argued that, contrary to Kawauchi’s

and Yagong’s assertion, it was a disputed fact that the results

of CSII’s investigation were accurate, contending that defendants

intentionally chose not to interview certain witnesses, including

Kevin Akiyama, owner of the elections warehouse, and former

County Clerks Goodenow and Leigh.

Kawauchi and Yagong argued in reply, inter alia, that

because the County Clerk appoints its staff, the County Clerk was

not under a duty to act based upon Takahashi’s opinion. Kawauchi

and Yagong argued further that Takahashi had admitted publicly

that he had a conflict of interest regarding the investigation of

Shikuma, and attached as support exhibits newspaper articles

discussing that issue.

The court filed an order granting Kawauchi’s and

Yagong’s motion for summary judgment, finding that Petitioners

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had failed to present evidence that Kawauchi and Yagong had

engaged in “willful and wanton” conduct that would put

Petitioners’ claims beyond the scope of the WCL’s exclusivity

provision. The court also found that Petitioners had not

presented evidence of false or defamatory statements attributable

to Yagong and Kawauchi.

The circuit court subsequently sua sponte amended its

order granting summary judgment in favor of Kawauchi and Yagong

individually, stating that its original order “went beyond the

limited scope of its intention and arguably contains findings

which invade the province of a workers compensation hearings

officer.” The court held that while there was conflicting

evidence regarding the manner in which the investigation into

Petitioners’ alleged misconduct was handled, there was an absence

of evidence that Kawauchi and Yagong made false statements about

Petitioners. The court concluded that, as such, Kawauchi and

Yagong had demonstrated that Petitioners would be unable to carry

their burden of proof at trial.

c. CSII

CSII filed a motion for summary judgment, arguing,

inter alia, that “there are no defamatory statements attributable

to CSII” in Petitioners’ complaints, and that CSII did not owe a

duty to Petitioners. CSII argued that there was no special

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relationship between Petitioners and CSII such that a duty would

arise from their relationship. CSII also argued, even if it did

owe a duty, that it did not breach a duty because CSII

interviewed County employees designated by a County Human

Resources manager as employees in the elections division, advised

the employees that they were being interviewed in connection with

activities at the warehouse, and obtained permission from the

employees and their union representative to record the

interviews.

In their opposition, Petitioners argued that CSII owed

a duty of reasonable care to Petitioners to conduct an impartial

investigation, because, as public sector employees, Petitioners

could only be terminated for just cause. They argued that a just

cause termination requires a fair and objective investigation

into the employee’s alleged misconduct. Petitioners also argued

that the owner of CSII, Kevin Antony, is a professional private

detective licensed by the State of Hawai#i and, “[a]s such, CSII

is held to a higher standard of care, and before releasing the

information of its reports to its clients, should have considered

the accuracy of the data collected due to the risk associated

with releasing information that later proves to be unreliable.”

Petitioners argued that CSII’s investigation was

negligent because CSII offered a narrow selection of negative

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evidence procured through a biased process, while suppressing

broad categories of favorable and exculpatory evidence.

Petitioners argued that CSII failed to properly interview or, in

some cases, interview at all, critical witnesses, including

former County clerks, Goodenow and Leigh.

The circuit court filed an order granting CSII’s motion

for summary judgment. As to the defamation and false light

claims, it found that Petitioners “failed to present any

admissible evidence to demonstrate that any defamatory statement

was published by CSII that was unprivileged and concerned

[Petitioners].” As to the negligent investigation claim, the

court held that CSII owed no duty to Petitioners.

On October 3, 2013, the circuit court entered Judgment

in favor of all defendants.

B. ICA Proceedings

Petitioners appealed, challenging the circuit court’s

holdings as to their defamation, false light, and negligent

investigation claims. Regarding their defamation and false light

claims, Petitioners argued that their claims were “not a

‘personal injury’ as defined by HRS [§] 386-3,”6 asserting that

6
HRS § 386-3 (Supp. 1998) provides, in relevant part (emphasis
added):

(a) If an employee suffers personal injury either by
(continued...)

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the majority of jurisdictions recognize that defamation does not

fall within workers’ compensation exclusivity. Petitioners also

contended that their injuries resulting from the alleged post-

termination defamation did not arise out of their employment, and

thus were not covered by the WCL’s exclusivity provision.

As to their negligent investigation claim, Petitioners

argued that CSII was negligent in its investigation, having

“failed or ignored to interview or properly interview critical

witnesses.” Petitioners asserted that CSII “owed a duty of

reasonable care to [Petitioners] to conduct an impartial

investigation,” and that its failure to do so constituted a

“reckless disregard” that caused their injuries.

The ICA affirmed the circuit court’s judgment.

Regarding Petitioners’ defamation and false light claims, the ICA

agreed with the circuit court’s conclusion that such claims are

generally within the WCL’s exclusivity provision. The ICA relied

on its decision in Yang v. Abercrombie & Fitch Stores, 128

Hawai#i 173, 284 P.3d 946(App. 2012), which held that intentional

tort claims, including defamation, were barred by the WCL.

6
(...continued)
accident arising out of and in the course of the
employment or by disease proximately caused by or
resulting from the nature of the employment, the
employee’s employer or the special compensation fund
shall pay compensation to the employee or the
employee’s dependents as provided in this chapter.

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However, the ICA determined that any defamatory statement made

after Petitioners’ termination would not be barred by the WCL, as

the statements would not meet “an essential prerequisite for

coverage under the WCL–-the existence of an employer-employee

relationship.” Accordingly, the ICA concluded that the circuit

court erred in ruling that the WCL bars Petitioners’ defamation

and false light claims to the extent those claims are based on

statements made after the termination of their employment.

As to the grant of summary judgment in favor of

Kawauchi and Yagong, the ICA found that there was no genuine

issue of material fact as to the claims against Kawauchi and

Yagong. The ICA noted that “truth is an absolute defense” to

defamation claims, and that a false light claim arising from the

same statement as a defamation claim must be dismissed if the

defamation claim is dismissed. The ICA determined that Kawauchi

and Yagong had submitted undisputed evidence demonstrating that

the allegedly defamatory statements published in the January 12,

2012 Hawai#i Tribune Herald article were true. Accordingly, the

ICA concluded that the circuit court properly granted summary

judgment in favor of Kawauchi and Yagong as individuals.

Having held that the circuit court properly granted

summary judgment in favor of Kawauchi and Yagong as individuals,

the ICA determined that the law of the case doctrine barred

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Petitioners from reasserting their claims against the County and

against Kawauchi and Yagong in their official capacity. The ICA

explained that Petitioners asserted identical allegations against

Kawauchi and Yagong whether in their individual or official

capacities, and that the claims against the County were for

respondeat superior liability related to Kawauchi’s and Yagong’s

alleged conduct. Accordingly, although the post-termination

claims were not barred by the WCL exclusivity provision, further

litigation was precluded because Kawauchi’s and Yagong’s

statements were true.

Regarding the circuit court’s grant of summary judgment

in favor of CSII, the ICA found that CSII owed no duty to

Petitioners. The ICA reasoned that “[Petitioners] did not submit

any evidence to suggest that CSII realized or should have

realized that its investigation posed an unreasonable risk of

harm to [Petitioners] through the negligent or reckless conduct

of Kawauchi, Yagong, or any other third party.” Accordingly, the

ICA concluded that summary judgment in favor of CSII was properly

granted.

Based on the foregoing, the ICA affirmed the circuit

court’s judgment as to all defendants.

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III. Standards of Review

A. Motion to Dismiss

A trial court’s ruling on a motion to dismiss is
reviewed de novo. The court must accept plaintiff’s
allegations as true and view them in the light most
favorable to the plaintiff; dismissal is proper only
if it appears beyond doubt that the plaintiff can
prove no set of facts in support of his or her claim
that would entitle him or her to relief.

Wong v. Cayetano, 111 Hawai#i 462, 476, 143 P.3d 1, 15 (2006)

(internal quotation marks and citations omitted).

B. Summary Judgment

[An appellate court] reviews the circuit court’s grant
of summary judgment de novo. Price v. AIG Hawai#i
Ins. Co., 107 Hawai#i 106, 110, 111 P.3d 1, 5 (2005).
Summary judgment is appropriate “if the pleadings,
depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to
a judgment as a matter of law.” HRCP Rule 56(c).

Gillan v. Gov’t Emps. Ins. Co., 119 Hawai#i 109, 114, 194 P.3d

1071, 1076 (2008).

C. Statutory Interpretation

Questions of statutory interpretation are questions of
law to be reviewed de novo under the right/wrong
standard.

Our statutory construction is guided by the following
well established principles:

our foremost obligation is to ascertain and give
effect to the intention of the legislature,
which is to be obtained primarily from the
language contained in the statute itself. And
we must read statutory language in the context
of the entire statute and construe it in a
manner consistent with its purpose.

When there is doubt, doubleness of meaning, or
indistinctiveness or uncertainty of an

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expression used in a statute, an ambiguity
exists.

In construing an ambiguous statute, the meaning
of the ambiguous words may be sought by
examining the context, with which the ambiguous
words, phrases, and sentences may be compared,
in order to ascertain their true meaning.
Moreover, the courts may resort to extrinsic
aids in determining legislative intent. One
avenue is the use of legislative history as an
interpretive tool.

The appellate court may also consider the reason
and spirit of the law, and the cause which
induced the legislature to enact it to discover
its true meaning.

Lingle v. Hawai#i Gov’t Emp. Ass’n, AFSCME, Local 152, AFL-CIO,

107 Hawai#i 178, 183, 111 P.3d 587, 592 (2005) (internal

quotation marks, brackets and ellipses omitted) (quoting Guth v.

Freeland, 96 Hawai#i 147, 149-50, 28 P.3d 982, 984-85 (2001)).

IV. Discussion

Petitioners present three questions to this court in

their application for writ of certiorari:
A. Did the ICA commit grave error by extending
workers’ compensation exclusivity to injuries
involving a person’s reputation?

B. Did the ICA commit grave error by determining the
"truth" of disputed facts which was a question for the
jury?

C. Did the ICA commit grave error by holding that no
duty exists to conduct an objective investigation in
support of employee discipline for public sector
employees?

Regarding Petitioners’ first question, we hold that the

WCL’s bar on claims for injuries incurred in the course of

employment does not extend to injuries to a person’s reputation,

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and accordingly, to defamation and false light claims. The

purpose of the WCL is to compensate employees for work-related

physical and mental injuries. The purpose of defamation and

false light actions is to compensate plaintiffs for harm to their

reputation. The WCL does not provide compensation for harm to

reputation. Given the differing purposes, and the lack of a

remedy in the WCL, we hold that employees may bring defamation

claims against their employers. We overrule the ICA’s decision

in Yang v. Abercrombie & Fitch Stores, 128 Hawai#i 173, 284 P.3d

946 (App. 2012), to the extent it held otherwise.

Regarding Petitioners’ second question, we address the

grant of summary judgment in favor of Kawauchi and Yagong in

their individual capacities. We affirm summary judgment in favor

of Kawauchi, but conclude that summary judgment was improperly

granted as to Yagong, as there exists a disputed fact whether

Yagong’s allegedly defamatory statements were true.

Finally, regarding Petitioners’ third question, we hold

that CSII owed a legal duty of care to Petitioners in conducting

its investigation. Kevin Antony is a private investigator

licensed pursuant to statute and regulations. We hold, based on

the statute and regulations, that licensed private investigators

owe a duty of care to the subjects of their investigations.

Because our holding is based on CSII’s role as a licensed private

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investigator, we do not address Petitioners’ argument that they

are owed a duty because they are public sector employees.

A. Claims for Reputational Injuries, and, Accordingly, for
Defamation and False Light, are Beyond the Scope of the
WCL’s Exclusivity Provision.

Whether the WCL’s exclusivity provision bars claims for

defamation and false light is a question of first impression

before this court. When construing a statute, our foremost

obligation is to “give effect to the intention of the

legislature, which is to be obtained primarily from the language

contained in the statute itself. And we must read statutory

language in the context of the entire statute and construe it in

a manner consistent with its purpose.” Morgan v. Planning Dep’t,

Cty. of Kauai, 104 Hawai#i 173, 179, 86 P.3d 982, 988 (2004). As

set forth below, the language and purpose of the WCL lead us to

conclude that the legislature did not intend for the WCL

exclusivity provision to extend to defamation and false light

claims.

In determining whether defamation and false light

claims are barred by the WCL, we start with the statute’s plain

language. See id. The WCL exclusivity provision, HRS § 386-5,

provides:
The rights and remedies herein granted to an employee
or the employee’s dependents on account of a work
injury suffered by the employee shall exclude all
other liability of the employer to the employee . . .

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at common law or otherwise, on account of the injury,
except for sexual harassment or sexual assault and
infliction of emotional distress or invasion of
privacy related thereto, in which case a civil action
may also be brought.

(Emphasis added.)

The WCL defines a “work injury” as “a personal injury

suffered under the conditions specified in section 386-3.” HRS

§ 386-1 (1993). HRS § 386-3, titled “Injuries covered,”

provides, in relevant part:
(a) If an employee suffers personal injury either by
accident arising out of and in the course of the
employment or by disease proximately caused by or
resulting from the nature of the employment, the
employee’s employer or the special compensation fund
shall pay compensation to the employee or the
employee’s dependents as provided in this chapter.

Accident arising out of and in the course of the
employment includes the wilful act of a third person
directed against an employee because of the employee’s
employment.

(Emphasis added.)

Assuming the word “personal” is not superfluous, the

term “personal injury” does not extend to all legally cognizable

injuries that might arise in the course of employment. See

Camara v. Agsalud, 67 Haw. 212, 215, 685 P.2d 794, 797 (1984)

(“It is a cardinal rule of statutory construction that courts are

bound, if rational and practicable, to give effect to all parts

of a statute[.]”). In other words, the WCL does not provide a

remedy for injuries that are not “personal.” By extension, it

does not bar actions in tort that seek to redress non-personal

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injuries. Whether defamation and false light claims are barred

by the WCL thus depends on whether the harm inflicted is a

“personal injury” under the WCL.

The plain language of HRS § 386-3 itself provides

little guidance as to the definition of a personal injury.

However, reading HRS § 386-3 “in the context of the entire

statute and constru[ing] it in a manner consistent with its

purpose” we hold that the harm inflicted by the torts of

defamation and false light is not a “personal injury” under the

WCL. See Morgan, 104 Hawai#i at 179, 86 P.3d at 988.

The purpose of the WCL (codified in HRS Chapter 386),

is to provide compensation to employees for work-related personal

injuries. Iddings, 82 Hawai#i at 8, 919 P.2d at 270. While HRS

Chapter 386 does not define “personal injury,” the chapter

contemplates compensation for physical and mental injuries. The

“underlying premise of the system” is “to enable the injured

worker to receive timely and the most effective medical treatment

and rehabilitation.” H. Stand. Comm. Rep. No. 575, in 1995 House

Journal, at 1242. As the ICA noted in Omori v. Jowa Hawai#i Co.:
[W]orkers’ compensation “is a branch of social
insurance for workers aimed at protection against the
consequences of work injuries.” S. Riesenfeld, Study
of the Workmen’s Compensation Law in Hawaii,
Legislative Reference Bureau, Report No. 1 (1963), iii
(emphasis added). Professor Stefan Riesenfeld, the
architect of the majority of the 1963 revisions to the
Hawai#i Workers’ Compensation Law, see Hse. Stand.
Comm. Rep. No. 889, in 1963 House Journal, at 822;

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Sen. Stand. Comm. Rep. No. 334, in 1963 Senate
Journal, at 788, identified the following three goals
of workers’ compensation:

(1) medical restoration and physiological
rehabilitation [of the worker] as far as
possible; (2) return of the permanently disabled
worker to some gainful employment whenever
possible, even where new skills must be
developed; (3) provision of substantial relief
for the economic and other losses incurred.

91 Hawai#i 157, 160–61, 981 P.2d 714, 717–18 (App. 1999), aff’d

as modified, 91 Hawai#i 146, 981 P.2d 703 (1999).

Consistent with its purpose, the WCL’s compensation

structure provides payment for medical and vocational

rehabilitation benefits, and income and indemnity benefits for

total and partial disability and death caused by work injury.

HRS §§ 386-21 to –57. The WCL provides that “[i]mmediately after

a work injury . . . the employer shall furnish to the employee

all medical care, services, and supplies as the nature of the

injury requires.” HRS § 386-21(a). In the case of certain

injuries, such as the loss of a limb, the disability is deemed

permanent, and the employer is required to pay the employee a

weekly benefit. HRS § 386-31.

In contrast to the type of “personal injury”

contemplated by the WCL, defamation and false light claims

address altogether different types of harm. The tort of

defamation has four elements:
(a) a false and defamatory statement concerning another;

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(b) an unprivileged publication to a third party;

(c) fault amounting at least to negligence on the part
of the publisher [actual malice where the plaintiff is
a public figure]; and

(d) either actionability of the statement irrespective
of special harm or the existence of special harm
caused by the publication.

Beamer v. Nishiki, 66 Haw. 572, 578–79, 670 P.2d 1264, 1271

(1983) (quoting Restatement (Second) of Torts § 588 (1977)).

We address these elements to determine the type of harm

for which the defamation and false light causes of action

compensate.7 As to the first element, “[a] communication is

defamatory when it tends to harm the reputation of another as to

lower him in the estimation of the community[.]” Fernandes v.

Tenbruggencate, 65 Haw. 226, 228, 649 P.2d 1144, 1147 (1982)

7
The tort of false light substantially overlaps with defamation,
and “where a false-light claim is based on the same statements as a defamation
claim, the false-light claim must be dismissed if the defamation claim is
dismissed.” Wilson v. Freitas, 121 Hawai#i 120, 130, 214 P.3d 1110, 1120
(App. 2009) (citing Gold v. Harrison, 88 Hawai#i 94, 103, 962 P.2d 353, 362
(1998)). The false light tort is defined as:

One who gives publicity to a matter concerning another
that places the other before the public in a false
light is subject to liability to the other for
invasion of his privacy, if

(a) the false light in which the other was placed
would be highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter
and the false light in which the other would be
placed.

Wilson, 121 Hawai#i at 130, 214 P.3d at 1120 (quoting Restatement (Second) of
Torts § 652E (1977)).

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(quotation marks and citations omitted). As to the fourth

element, special harm is the loss of something having at least

indirect pecuniary value, such as the loss of society,

companionship and association. Restatement (Second) of Torts

§ 575 (1977). A statement is actionable irrespective of special

harm if the communication is libel. In that case, no further

proof of injury or loss is required to recover general damages.

Id. § 569. General damages includes compensation for “impairment

of reputation and standing in the community,” and “personal

humiliation, and mental anguish and suffering.” Id. § 621.

Thus, the interest protected by defamation actions is

that of reputation. Gonsalves, 100 Hawai#i at 171, 58 P.3d at

1218. “In defamation actions general damages are imposed for the

purpose of compensating the plaintiff for the harm that the

publication has caused to his reputation.” Restatement (Second)

of Torts § 621 (1977).

In comparing the physical and mental injuries clearly

contemplated by the legislature in providing compensation for

“personal injury” in Chapter HRS 386, and the purpose of

compensation in defamation actions–-to compensate for harm to

reputation--we conclude that defamation and false light do not

inflict a “personal injury” under HRS § 386-3. Nowhere in HRS

Chapter 386 is there any provision for compensation for harm to

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reputation. Defining “personal injury” under HRS § 386-3 as

including injury for which HRS Chapter 386 provides no remedy is

inconsistent with the WCL’s purpose to provide compensation for

work-related injuries. See Nassa v. Hook-SupeRx, Inc., 790 A.2d

368, 372 (R.I. 2002) (“the scope of the exclusive-remedy doctrine

as embodied in workers’ compensation law depends upon whether the

alleged work-related injury is one for which the applicable

workers’ compensation statute provides a compensation remedy.”).

Interpreting the WCL to bar claims for defamation would produce

an absurd result because employees would have no way in which to

recover for reputational harm--they would not recover damages in

tort, nor would they receive compensation for the harm to their

reputation from the WCL. Such a result is manifestly

inconsistent with the WCL’s purpose to compensate employees for

work-related injuries.

Based on the foregoing, we hold that harm to reputation

is not a “personal injury” under HRS § 386-3.8 Because the

8
The County argues that this court has previously defined “personal
injury” to include reputational harm in TMJ Hawai#i, Inc. v. Nippon Trust
Bank, 113 Hawai#i 373, 153 P.3d 444 (2007). However, in TMJ Hawai#i, we
defined personal injury in a different context: the assignability of tort
claims. Id. at 374-75, 153 P.3d at 445-46. There, we explained that “tort
claims that are ‘personal’ in nature are not assignable.” Id. at 381, 153
P.3d at 452. We compared malpractice, breach of fiduciary duty, and fraud
claims to “personal” tort claims and held:

These allegations consist of direct and quantifiable
economic injuries to the estate or property of
Ishimura Building, as opposed to physical, mental, or
(continued...)

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purpose of defamation actions is to provide compensation for harm

to reputation, and because a reputational injury is not a

“personal injury,” we hold that the torts of defamation and false

light are beyond the ambit of the WCL’s exclusivity provision.

The fact that damages for mental anguish and suffering

may also be recovered in a defamation action does not change our

conclusion. We are persuaded by the reasoning of the Supreme

Judicial Court of Massachusetts, which, in holding that

defamation claims were not barred by workers’ compensation,

noted:
The [workers’ compensation] act has been interpreted
to encompass physical and mental injuries arising out
of employment, whereas the gist of an action for
defamation is injury to reputation, irrespective of
any physical or mental harm. We recognize the
conceptual problem inherent in the employee’s
including physical and mental injury as elements of
damage in the defamation claim. However, we feel that
to block the main thrust of this action because of
peripheral items of damages, when a compensation claim

8
(...continued)
reputational harm. Given the non-personal nature of
the injuries alleged, we are compelled to conclude
that the professional malpractice, breach of fiduciary
duty, and fraud claims presented in the present case
are assignable.

Id. at 384, 153 P.3d at 455 (emphasis added).

TMJ Hawai#i thus categorizes torts that redress reputational harm
as “personal” claims for the purposes of analyzing whether they are
assignable. However, a word’s meaning can vary depending on context, and our
observation that reputational harm is a “personal” injury for the purposes of
determining whether a claim is assignable does not compel the conclusion that
defamation is a “personal injury” within the context of the WCL. Again, to
interpret “personal injury” to include reputational harm is counter to the
“spirit of the law, and the cause which induced the legislature to enact it”
because HRS Chapter 386 provides no compensation for reputational harm. See
Gurrobat v. HTH Corp., 135 Hawai#i 128, 133, 346 P.3d 197, 202 (2015).

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could not purport to give relief for the main wrong of
injury to reputation, would be incongruous, and
outside the obvious intent of the exclusiveness
clause.

Foley v. Polaroid Corp., 381 Mass. 545, 551-52, 413 N.E.2d 711,

715 (1980)(citations omitted).

Our holding is consistent with the weight of authority

from other jurisdictions. See, e.g., Nassa, 790 A.2d at 371

(“the prevalent view throughout the nation . . . is that the

exclusive-remedy provisions of workers’ compensation laws do not

bar employment-related defamation claims.”); Tracy Bateman

Farell, Defamation, 82 Am. Jur. 2d Workers’ Compensation § 73

(“Defamation actions generally are not barred by the exclusive

remedy provision of workers’ compensation statutes. The

rationale for this exception is that an injury to an employee’s

reputation is not the kind of injury contemplated by a workers’

compensation act[.]”)

Decisions contrary to the majority view frequently

involve the broad application of an exclusivity provision to an

employee who alleged multiple causes of action for intentional

torts, without considering whether harm to one’s reputation is

properly considered a “personal injury.” See, e.g., Becker v.

Automatic Garage Door Co., 456 N.W.2d 888 (Wis. Ct. App. 1990);

Thompson v. Maimonides Med. Ctr., 86 A.D.2d 867 (N.Y. App. Div.

1982).

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The ICA’s decision in Yang similarly broadly applied

the WCL exclusivity provision to an employee who alleged multiple

intentional tort causes of action, without specifically

considering whether reputational harm is a “personal injury.”

Yang, 128 Hawai#i at 183, 284 P.3d at 956. There, a clothing

store employee alleged that she was wrongfully accused of

stealing money and filed a complaint which included counts for,

inter alia, false imprisonment, harassment, wrongful termination,

intentional infliction of emotional distress, and defamation.

Id. at 174-75, 284 P.3d at 947-48. The circuit court held that

injuries caused by the intentional actions of the employer were

not covered under the WCL. Id. at 175-76, 284 P.3d at 948-49.

The ICA vacated the circuit court’s decision, holding that HRS

§ 386-5 barred all of Yang’s intentional tort claims. Id. at

183, 284 P.3d at 956.

Yang stands for the proposition that the WCL’s

exclusivity provision encompasses intentional torts, including

defamation, unless otherwise provided for by the legislature.

Id. However, the ICA did not explicitly consider the application

of the exclusivity provision to reputational injuries. The ICA

failed to recognize that by barring defamation claims, it left

employees without a remedy for harm to their reputation caused by

their employers–-a result inconsistent with the purpose of the

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WCL. Because we conclude that the legislature did not intend to

include reputational injuries in the definition of “personal

injury” in HRS § 386-3, we overrule Yang to the extent it held

that defamation claims were barred by the WCL.

In conclusion, reputational harm is not a “personal

injury” under HRS § 386-3. Because the purpose of defamation and

false light claims is to provide compensation for reputational

harm, defamation and false light claims are not covered by the

WCL exclusivity provision, HRS § 386-5.

B. Summary Judgment as to the Truth of Yagong’s and Kawauchi’s
Statements

Having held that Petitioners’ claims were not barred by

the WCL, we turn to whether there was a disputed question of

material fact as to the truth of the allegedly defamatory

statements. The circuit court granted summary judgment in favor

of Kawauchi and Yagong based on its finding that there was an

absence of evidence that they made false statements, and the ICA

affirmed. Petitioners argue that the ICA erred in affirming

summary judgment. We conclude that Yagong did not meet his

burden to establish that there was no dispute of material fact

that his statements were true, and accordingly, vacate summary

judgment in his favor. However, we affirm the entry of summary

judgment in favor of Kawauchi.

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“The burden is on the party moving for summary judgment

(moving party) to show the absence of any genuine issue as to all

material facts.” Ralston v. Yim, 129 Hawai#i 46, 56, 292 P.3d

1276, 1286 (2013). “In other words, summary judgment is

appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of

material fact and the moving party is entitled to a judgment as a

matter of law.” Kawashima v. State, 140 Hawai#i 139, 148, 398

P.3d 728, 737 (2017). The court must “view all of the evidence

and inferences drawn therefrom in the light most favorable to the

party opposing the motion.” Ralston, 129 Hawai#i at 56, 292 P.3d

at 1286.

Petitioners’ defamation and false light claims against

Kawauchi and Yagong are based on the January 12, 2012, Hawai#i

Tribune Herald article entitled, “County elections workers

fired.9” The article stated, in relevant part:

9
In their complaint, Petitioners also identify statements made by
an anonymous blogger with the pseudonym “Taxedtodeath,” and contended that
Kawauchi and Yagong “leaked false and misleading information to the media”
because the blogger “specifically referred to details only contained in
Defendant CSII’s investigation which had not been released to the public.”
However, Petitioners do not mention the anonymous blogger, and identify only
the statements in the January 12, 2012 article as forming the basis of their
defamation claim, in their opposition to Kawauchi and Yagong’s motion for
summary judgment. Because we find that there is a disputed question of
material fact as to the truth of the statements in the January 12, 2012
article, we do not address Petitioners’ allegations regarding the blogger’s
statements.

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Hawaii County has fired four elections workers,
including the program administrator, following an
investigation into alcohol storage and private
business activities allegedly conducted at a Hilo
elections warehouse.

“They have received termination notices already,”
County Council Chairman Dominic Yagong said of three
letters dated Friday

A separate notice had been sent earlier to another
employee, whose termination appeal is now at the
arbitration level, he said.

The infractions dealt with “violations of county
policy,” the Hamakua councilman said Wednesday.

“I don’t want to go into details and jeopardize the
process,” Yagong said when asked for specific reasons
for the discharges.

Last July 7, Yagong and County Clerk Jamae Kawauchi
visited the roughly 2,000-square-foot warehouse the
county rents at Makaala St. Concerned with what he
saw, Yagong ordered the locks changed that night and
that an independent investigation be conducted.

“The warehouse remains closed as the Police Department
is continuing its investigation,” Yagong said
Wednesday.

However, it’s still being used as a storage facility
for election ballot boxes, he said.

“The final decision (to terminate the employees) is
made by the county clerk, but I was involved in the
decision-making process,” Yagong said.

Kawauchi confirmed four employees have “separated”
from the county, but she couldn’t divulge why.

However, she identified the employees as: Pat
Nakamoto, a longtime elections program administrator;
Glen Shikuma, warehouse manager; Shyla Ayau; and Elton
Nakagawa.

(Emphases added).

Viewing the evidence in the light most favorable to

Petitioners, we find that Yagong did not demonstrate an absence

of any genuine issue as to all material facts, namely, whether

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the statements attributed to him in the January 12, 2012 Hawai#i

Tribune Herald article were true. Ralston, 129 Hawai#i at 56,

292 P.3d at 1286. Although truth is an absolute defense to

defamation claims, this court has held that “substantial truth”

is a matter for the jury to decide. Kohn v. W. Hawai#i Today,

Inc., 65 Haw. 584, 590, 656 P.2d 79, 84 (1982) (“The question, a

factual one, is whether there is a substantial difference between

the allegedly libelous statement and the truth; or stated

differently, whether the statement produces a different effect

upon the reader than that which would be produced by the literal

truth of the matter.”).10

A reasonable juror could find that Yagong’s statements

indicated that all of the terminated employees in fact violated

County policy relating to alcohol at the warehouse and were

involved in conducting private business activities out of the

warehouse. The article states, “Hawai#i County has fired four

election workers . . . following an investigation into alcohol

storage and private business activities allegedly conducted at a

10
In Kohn, the defendant newspaper published an article mentioning
plaintiff as one of several businesses at which dangerous drugs, including
heroin, cocaine, hashish, and morphine, were confiscated. Id. at 585, 656
P.2d at 80. The plaintiff sued for defamation because the police had
confiscated only marijuana from the plaintiff. Id. This court affirmed the
trial court’s denial of defendant’s motion for summary judgment, holding, “A
jury is especially suited to make the factual determination of whether the
average reader would have been affected by the article in a far different
manner than if the article had been accurately written.” Id. at 590, 656 P.2d
at 84.

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Hilo elections warehouse.” The article quotes Yagong as stating

that the employees “have received termination notices” and that

the infractions dealt with “violations of county policy.”11

Although there is no dispute of fact that Kawauchi sent

Petitioners termination letters a few days before the article was

published, we conclude that there is a dispute of material fact

as to whether Petitioners committed violations of County policy.

As Petitioners argue, despite the alleged violations of County

policy, Petitioners were reinstated. Moreover, the County’s

Human Resources Director testified that he told Kawauchi and

Yagong that there was not enough evidence in CSII’s reports to

terminate Nakamoto.12 Further, although the article implied that

Petitioners were involved in private business activities at the

warehouse, Kawauchi and Yagong have not pointed to any evidence

that Petitioners themselves conducted such activities at the

11
Although it was the newspaper who printed Yagong’s and Kawauchi’s
statements, and thus the newspaper’s wording of the article might contribute
to the effect of Yagong’s and Kawauchi’s statements on the reader, Yagong is
directly quoted as saying that the infractions “dealt with violations of
County policy.” In his deposition, Yagong confirmed that he interviewed with
Jason Armstrong for the January 12, 2012 Hawai#i Tribune Herald article.
Yagong testified that he did not recall whether Jason Armstrong sent him a
preview of the article before it was published.
12
Although Kawauchi and Yagong argued they did not have a duty to
act based on the Human Resources Director’s opinion, we conclude that
Takahashi’s opinion, together with the fact of reinstatement, raises a
question of fact as to whether Petitioners violated County policy. As to
Kawauchi and Yagong’s argument that Takahashi had a conflict of interest
regarding the investigation, Kawauchi and Yagong cited only a newspaper
article; they did not ask Takahashi about any such conflict during his
deposition. Further, the alleged conflict was only as to Shikuma, not as to
Petitioners.

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warehouse. Finally, although Kawauchi and Yagong argued that

they relied on information in CSII’s reports in deciding to

terminate Petitioners, Petitioners disputed the reliability of

the results of the investigation, contending that CSII did not

interview critical witnesses, including, inter alia, Akiyama, the

owner of the elections warehouse, and former County Clerks

Goodenow and Leigh.

Based on the foregoing, we conclude that Petitioners

raised a genuine issue of material fact, and that accordingly the

circuit court erred in granting summary judgment in favor of

Yagong on the defamation and false light claims.13 We therefore

vacate the circuit court’s judgment in favor of Yagong, and

remand for further proceedings. However, we affirm the grant of

summary judgment in favor of Kawauchi. Kawauchi was quoted in

the January 12, 2012 article as saying that four individuals,

including Petitioners, had “separated” from the County, but

declined to give additional details. Kawauchi’s statement was

limited to confirming a fact that was objectively correct and did

not itself imply misconduct. It is undisputed that Kawauchi’s

statement was true, and she is accordingly entitled to summary

13
Petitioners did not raise their negligent investigation claims or
negligent infliction of emotional distress claims against Kawauchi and Yagong
in their individual capacities in the ICA. Accordingly, these claims are
waived, and we do not address them.

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judgment.

Because we vacate the circuit court’s grant of summary

judgment in favor of Yagong in his individual capacity, we also

vacate the circuit court’s dismissal of Petitioners’ claims

against the County and Yagong in his official capacity. The ICA

affirmed the circuit court’s grant of summary judgment in favor

of Kawauchi and Yagong, holding that the undisputed facts

established that Kawauchi and Yagong did not make false

statements. The ICA determined that, although post-employment

defamation claims were not barred by the WCL, the law of the case

doctrine barred Petitioners from reasserting their defamation and

false light claims against the County and against Kawauchi and

Yagong in their official capacity, because the claims were based

on the same statements. Since we are vacating the grant of

summary judgment as to Yagong in his individual capacity, the law

of the case doctrine would not apply. Accordingly, Petitioners

may reassert their defamation and false light claims against the

County and Yagong in his official capacity, based on our holding

that the claims were not barred by the WCL. We therefore vacate

the circuit court’s grant of the County’s motion to those claims,

and remand for further proceedings.14

14
Petitioners did not raise their negligent investigation claims or
negligent infliction of emotional distress claims against the County or
(continued...)

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C. Licensed Private Investigators Owe a Duty of Care to the
Subject of Their Investigations.

Petitioners argue that the ICA erred in concluding that

CSII owed no legal duty to Petitioners that would support their

negligent investigation claim against CSII. CSII argues that it

did not owe a legal duty to Petitioners because it was not their

employer, and it was not responsible for decisions relating to

their employment.

A negligent investigation claim is a common law tort

action for negligence. One element of such an action is “[a]

duty or obligation, recognized by the law, requiring the

defendant to conform to a certain standard of conduct, for the

protection of others against unreasonable risks.” Tseu ex rel.

Hobbs v. Jeyte, 88 Hawai#i 85, 91, 962 P.2d 344, 350 (1998).

“[A] duty of care may be established by statute if a

‘legislative enactment [ ] lays down requirements of conduct, and

provides expressly or by implication that a violation shall

entail civil liability in tort.’” Arquette v. State, 128 Hawai#i

423, 443, 290 P.3d 493, 513 (2012) (citing Lee v. Corregedore, 83

Hawai#i 154, 172, 925 P.2d 324, 342 (1996)). We hold, based on

our precedent and case law from other jurisdictions, that a

14
(...continued)
Kawauchi and Yagong in their official capacities in the ICA. Accordingly,
those claims are waived, and we do not address them.

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statute and regulation pertaining to CSII’s status as a licensed

private investigator create a legal duty of care owed by CSII to

the subjects of its investigations.15

In Arquette, a plaintiff subject to an investigation by

the Office of Consumer Protection (OCP) brought a negligent

investigation claim against OCP, arguing that HRS § 487-116

created a duty of care in OCP to the subjects of its

investigations. In considering the plaintiff’s contention, this

court relied on its previous decision in Corregedore, which held:
Duty in a negligence action may be defined by common
law or by statute. . . . “[w]hen a statute provides
that under certain circumstances particular acts shall
or shall not be done, it may be interpreted as fixing
a standard ... from which it is negligence to
deviate.” William L. Prosser, Prosser & Keeton on the
Law of Torts § 36 at 220 (5th ed. 1984) (footnote
omitted). Thus, the key words are that the statute
must specify or imply standards or “requirements of
conduct” that will create civil liability.

. . . .

15
Because we hold that CSII owed a duty as a licensed private
investigator, we do not address Petitioners’ argument that various public
employment statutes created a legal duty of care.
16
HRS § 487-1 (1984) provides:

The public health, welfare and interest require a
strong and effective consumer protection program to
protect the interests of both the consumer public and
the legitimate business person. Toward this end, a
permanent office of consumer protection is created to
coordinate the services offered to the consumer by
various state and county agencies, together with
private organizations, and to aid in the development
of preventive and remedial programs affecting the
interest of the consumer public.

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If a statute “contains no express provision that its
violation shall result in tort liability, and no
implication to that effect, the court may, and in
certain types of cases customarily will, adopt the
requirements of the enactment as the standard of
conduct necessary to avoid liability for negligence.”
Restatement (Second) of Torts § 285 comment c (1965).
Courts may adopt the requirements of a statute as the
standard of care when the purpose of the statute is to
“protect a class of persons which includes the one
whose interest is invaded[.]” Restatement (Second) of
Torts § 286(a) (1965).

83 Hawai#i at 172-73, 925 P.2d at 342-43 (emphasis added).

We held in Arquette that HRS § 487-1 did not create a

duty of care. 128 Hawai#i at 443, 290 P.3d at 513. HRS § 487-1

creates a permanent office of consumer protection to coordinate

services and programs affecting the consumer public. We held

that the statute did not obligate government officials to “act in

a certain manner or in accordance with any particular standard or

proscribe any conduct,” and, accordingly, did not create or

indicate a duty of care which could form the basis of the

plaintiff’s negligence action. Arquette, 128 Hawai#i at 443, 290

P.3d at 513.

Similarly, in Corregedore, we held that HRS Chapter

363, “Veterans Rights and Benefits,” did not create a statutory

duty of care on the part of Veterans’ Services Counselors. 83

Hawai#i at 173, 925 P.2d at 343. The statutes required that the

Office of Veterans’ Services, inter alia, maintain and supervise

a center for veterans, their families and dependents providing

information and referral for services, assistance, or benefits;

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cooperate with other agencies in the community to coordinate

available services; and assemble, analyze, compile, and

disseminate factual up-to-date information with respect to

available benefits. Id. We held that the statute did not

proscribe conduct nor specify standards of conduct for Veterans’

Services Counselors, nor could such standards of conduct be

inferred from the chapter’s language. Id.

Cases outside Hawai#i, applying the principle that

statutes may create a duty of care, have held that a licensed

private investigator owes a duty to the subjects of its

investigations, based on the state’s licensing statute. See Cruz

v. Viewpoint CRM, Inc., No. CV-126014149, 2013 WL 593886, at *12

(Conn. Super. Ct. Jan. 16, 2013); Devlin v. Greiner, 147 N.J.

Super. 446, 466, 371 A.2d 380, 391 (Law. Div. 1977).

In Devlin, a husband hired a licensed detective to

investigate whether his wife was having an affair with plaintiff,

Devlin. 147 N.J. Super. at 452, 371 A.2d at 383. The

investigator reported on the affair, and the husband filed for

divorce. Id. Devlin and the wife sued the investigator based

on, inter alia, a claim of negligence. Id. The investigator

argued that he owed no duty to plaintiffs. Id. at 465, 371 A.2d

at 391. The court disagreed, holding:
Defendant clearly had a duty to those he observed to
report accurately on their activities. He is a

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private detective, licensed under N.J.S.A. 45:19-12.
It is his business, among other things, to supply his
clients with information or factual data concerning
the activities of others. Where the information
gathered by him is of a delicate or sensitive nature,
his duty to report that information accurately should
extend not only to the person who hired him, but also
to the subjects of his surveillance-people whose lives
may be materially affected by the accuracy of his
reports.

. . . .
This duty to report information accurately springs
from a second source, in addition to the traditional
principles of negligence. In procuring a license to
be a private detective, defendant holds himself out to
be a person of good character, competency and
integrity. N.J.S.A. 45:19-12; Schulman v. Kelly, 54
N.J. 364, 255 A.2d 250 (1969). The requirements of
the statute evince a legislative recognition of the
potential for abuse inherent in defendant’s business.
The Legislature thus exercised control, in the
societal interest, over the people upon whom it
conferred the powers enumerated in N.J.S.A. 45:19-9.
The entire tenor of licensing statute indicates that
its aim is to impose a standard of competent
professionalism upon licensed private detectives.

Id. at 466-67, 371 A.2d at 391.

In Cruz, a licensed surveillance company hired by an

apartment complex reported that the employee of a janitorial

company contracted by the apartment complex had used drugs, and

the janitorial company terminated its employee. Cruz, 2013 WL

593886 at *1. The court held that the surveillance company owed

a duty to the terminated janitorial employee:
by obtaining the statutorily mandated professional
license, a defendant holds itself and its
investigators out to the public as possessing the good
character, competency and integrity to properly
conduct its investigative activities, including
surveillance, and to submit true and accurate reports
of those activities. This court finds that this
legislatively imposed duty, obligating the defendant

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to report its observations accurately, should not only
inure to the benefit of the one who hired the
defendant but should extend to persons, such as the
plaintiffs, who were made subjects of the surveillance
and whose lives were materially and adversely affected
by the defendant’s allegedly false report of their
activities.

Id. at *12.

The court’s holding was based on Connecticut’s statute

for application for a license as a private detective, which

provides, “[u]pon being satisfied, after investigation, of the

good character, competency and integrity of the applicant, or, if

the applicant is an association or partnership, of the individual

members thereof . . . the conimissioner [sic] [of Public Safety]

may grant a license to conduct such private detective

business[.]” Id. at *11 (quoting Conn. Gen. Stat. Ann.

§ 29-155).

Hawai#i has a private investigator licensing statute

similar to that of Connecticut. Under HRS § 463-1 (Supp. 2010),

“‘Detective’, ‘private detective’, or ‘investigator’ means a

licensed person qualified to obtain information and evidence not

readily or publicly accessible.” Pursuant to HRS § 463-6 (Supp.

2004):
(a) The board [of private detectives and guards] may
grant a private detective license to any suitable
individual, or a detective agency license to any
suitable firm making written application therefor.
The applicant, if an individual, or the principal
detective of a firm shall:

. . .

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(6) Possess a history of honesty, truthfulness,
financial integrity, and fair dealing.

Further, Hawai#i Administrative Rules (HAR) § 16-97-46

provides that a license may be terminated for, inter alia,

“misrepresenting a material fact, on any investigative,

surveillance, or security report[.]”

We hold that the statute and regulation governing

licensing for private investigators, HRS § 463-6 and HAR

§ 16-97-46, create a duty of care owed by the licensed

investigator to the subjects of its investigation. By requiring

that the licensed investigator possess a history of “honesty,”

“integrity,” and “fair dealing” and providing for termination of

a license for the misrepresentation of a fact, HRS § 463-6 and

HAR § 16-97-46 “imply standards or requirements of conduct that

will create civil liability.” See Corregedore, 83 Hawai#i at

172, 925 P.2d at 342 (citations omitted). Even if the statute

did not imply a standard which would create liability, we choose

to “adopt the requirements of [the] statute as the standard of

care [because] the purpose of the statute is to protect a class

of persons which includes the one whose interest is invaded.”

See id. at 173, 925 P.2d at 343. The “requirements of the

statute [and regulation] evince a legislative recognition of the

potential for abuse inherent” in an investigator’s business and

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the “tenor of licensing statute indicates that its aim is to

impose a standard of competent professionalism upon licensed

private detectives.” See Devlin, 147 N.J. Super. at 467, 371

A.2d at 391. The private investigator’s “legislatively imposed

duty, obligating [CSII] to report its observations accurately,

. . . should extend to persons, such as [Petitioners], who were

made subjects of the surveillance and whose lives were materially

and adversely affected by the defendant’s allegedly false report

of their activities.” See Cruz, 2013 WL 5993886 at *12.

Kevin D. Antony, owner of CSII, is a licensed private

investigator. Accordingly, CSII owed a duty of care to

Petitioners to conduct an investigation honestly, truthfully,

with fair dealing, and to report the results of the investigation

accurately, without misrepresenting any facts. See HRS § 463-6;

HAR § 16-97-46. We therefore vacate the circuit court’s grant of

summary judgment in favor of CSII on the negligent investigation

claim, and remand for a determination as to whether CSII breached

its duty of care.17

V. Conclusion

For the foregoing reasons, we conclude that the circuit

court erred in dismissing Petitioners’ claims against the County,

17
As to CSII, Petitioners raised only the negligent investigation
claim in the ICA and before this court. Accordingly, their other claims
against CSII are waived before this court, and we do not address them.

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erred in granting summary judgment in favor of Yagong, and erred

in granting summary judgment in favor of CSII. We therefore

vacate the ICA’s May 9, 2017 judgment, the circuit court’s

October 3, 2013 judgment as to all defendants except Kawauchi,

the circuit court’s March 8, 2013 order granting the County’s

motion to dismiss, the circuit court’s June 25, 2013 sua sponte

amended order granting summary judgment in favor of Yagong, and

the circuit court’s June 4, 2013 order granting summary judgment

in favor of CSII, and remand the case for further proceedings

consistent with this opinion.

Ted H.S. Hong /s/ Mark E. Recktenwald
for petitioner
/s/ Paula A. Nakayama
Laureen L. Martin
for respondents County of /s/ Sabrina S. McKenna
Hawai#i, and Jamae Kawauchi
and Dominic Yagong, in their /s/ Richard W. Pollack
official capacities
/s/ Michael D. Wilson
Jill D. Rasnov
for respondents Jamae Kawauchi
and Dominic Yagong, in their
individual capacities

Jodie D. Roeca
for respondent Corporate
Specialized Intelligence and
Investigations, LLC

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