Judge denies case dismissal

LIHUE — A motion to dismiss a civil case filed against the County of Kauai and several individuals, based on the failure to state a claim, was denied in Fifth Circuit Court Tuesday.

According to a complaint filed in September by longtime county employee Charles Rapozo, his then supervisor Edward Sarita denied him proper training and safety gear to clean tiles containing asbestos at Kauai War Memorial Convention Hall.

The complaint says he was retaliated against for bringing up asbestos in the hall and as a result, wasn’t given work assignments by his supervisor for over a year. He continued to show up for work, the complaint says, spending his days in the parking lot.

Appearing before Judge Kathleen Watanabe, Deputy County Attorney Mark Bradbury argued that in order to proceed with the case, there are three hurdles the plaintiff will have to surpass in order to win. He will have to prove that the actions of his client were outrageous, wanton and willful (negligent) and malicious.

“Here we have an individual like Eddie Sarita, who has a job in a supervisory capacity, and he’s required to make sure anyone below him does the job that he’s responsible for. In this particular case it was cleaning the floors at the convention center. Now to say that Mr. Sarita acted maliciously when he was just carrying out his jobs as a supervisor, is kind of a leap,” Bradbury argued.

The motion to dismiss for failure to state a claim, argued attorney for the plaintiff, Richard Wilson, is the defense coming to the court saying there are facts the plaintiff has to prove and they don’t think they can prove those facts.

At this stage, Wilson argued, the claim of emotional distress has to be accepted as truth.

“Now what the defendant is telling you is, ‘Judge, let’s weigh some of the facts, because my client did this, he was the supervisor, he made Mr. Rapozo clean the floor.’ Now we’re getting into a factual. Will what he was alleged to have done rise to the level of being willful and wanton or malicious? Again, that’s a factual,” Wilson argued.

That, Wilson said, is not a proper attack on a complaint at this stage when it’s a motion to dismiss for failure to state claim.

The three-part test argued by Bradbury, Wilson said, is an either-or test, stating the defendant argued on the “or,” and based on a factual determination.

“They come to you essentially trying to convince the court, ‘we win as a matter of law,’ then they have to backpedal and we recognize, and I think it’s crystal clear in their reply, that what they’re telling you is they’re arguing facts,” Wilson argued.

The facts that are pleaded in the complaint, he said, clearly meet the standard for intentional infliction of emotional distress.

“Now I’m not saying that somewhere down the road they can come back, and there may be facts that aren’t in dispute. But they’re putting the cart before the horse,” Wilson said.

Bradbury argued that he was arguing alleged facts.

“I’m asking the court to determine whether they rise to the level of what is necessary to maintain and continue with this case and specifically, I don’t believe what has been alleged here can even possibly be characterized as being malicious,” Bradbury said.

Watanabe said she was a bit perplexed in reading the pleadings, because they were brought in under the failure to state a claim and Bradbury was arguing facts in support of that motion.

The facts, argued Bradbury, don’t support the finding that Sarita acted maliciously. Unless there’s a finding made by this court one way or another, he said, his client is entitled to qualified privilege.

“This is the point in time I can raise it,” he said.

Bradbury stated that all his client was asking the court to do is make a preliminary evaluation as to whether the facts alleged in the complaint support a finding that Mr. Sarita acted maliciously.

“I don’t believe the facts alleged can be characterized as malicious,” Bradbury said.

Watanabe denied the county’s motion.

“I think as correctly pointed out by Mr. Wilson, when he said this juncture, and this type of motion, but there’s not enough before the court. And perhaps under the appropriate motion, we can start discerning what the factual disputes are, but facts plead before the court. Once again, the court’s denying it, in its entirety.”