quick facts

No Constitutional Right of Action for Damages

Hawaii is one of 23 states that have specifically rejected a state constitutional cause of action for damages. The Hawaii Supreme Court has relied on sovereign immunity to deny a plaintiff relief against the State under the Hawaii Constitution. 1 The Court adopted an unusually narrow definition of “tort” to hold that the Hawaii State Tort Liability Act (“HSTLA”) waives sovereign immunity only for “traditionally recognized common law causes of action in tort,” which does not include constitutional torts. 2

Non-Constitutional Tort Liability

The HSTLA includes a broad waiver of sovereign immunity, providing that the State “shall be liable in the same manner and to the same extent as a private individual under like circumstances.” 3 However, specifically excluded from this waiver is liability for most intentional torts, “[a]ny claim for which a remedy is provided elsewhere in the laws of the State,” and “[a]ny claim arising out of the acts or omissions of any boating enforcement officer.” 4

Hawaii’s government tort liability system is disjointed; claims against municipalities are governed by common law rather than statute. The Supreme Court of Hawaii overruled case law applying the HSTLA to cities and counties and held that cities and counties enjoy no sovereign immunity. 5

Plaintiffs face a high bar to suing government employees. To hold a government employee liable, plaintiffs must provide “clear and convincing proof that [the] defendant was motivated by malice and not by an otherwise proper purpose.” 6