TORTS, Hawaii Private Investigation for Detectives and Investigators
A Tort is some action or conduct by the defendant which results from a breach of a legal duty owed
by the defendant to the plaintiff, which proximately causes injury or damage to the plaintiff (Gilbert
Hawaii Tort investigations are concerned with both subjects at once, i.e., what interests of plaintiff
should be protected from what kinds of interferences by defendant. Thus, the chief aim of action in
tort is that an individual be compensated for the loss he has suffered within the scope of his legally
recognized private interests, as the best method of relief.
Torts have three general categories:
- Intentional torts are wrongs which the defendant knew or should have known would happen
through their actions or inactions (e.g. intentionally hurting a person);
- Negligent torts happen when the defendant’s actions were unreasonably unsafe (e.g. causing
accident by failing to obey traffic rules); and
- Strict liability torts are wrongs that do not depend on the degree of carefulness by the
defendant but established when a particular action causes damage (e.g. liability for selling
Misfortune may happen unexpectedly to you or anyone in your family and when it does, a you, as a
victim may incur costs. You can shift these costs to others who you believed has strict liability in
causing it. The principles of the tort law help you in getting compensation for damages suffered not
by your own fault. Contact The Investigators, LLC to assist you with the discovery of facts and
evidence to support your claim. We are a trained and experienced professional Hawaii Private
The Hawaii Private Investigators' services are predicated on knowledge of Civil Laws (Torts) and
their Defenses which is the primary foundation for an investigator's perspicacity necessary for
evidence discovery and acquisition. Our requisite professional credentials have earned us the
compulsory credibility necessary to elicit and educe cooperation from individuals with relevant and
reliable information. We do more than just take pictures. We know what to look for, what to ask,
how to ask, and whom to ask.
Torts to the Person
- False Imprisonment;
- Intentional Infliction of Emotional Distress;
- Defense of Third Person;
- Defense of Land or Chattels;
- Force to Effect Recapture of Chattels Wrongfully Withheld;
- Privilege of Arrest;
Torts to Property
- Trespass to Land
- Trespass to Chattels
- Conversion of Chattels
- Privileged Invasion of Another's Land to Reclaim Chattels;
- Privilege to Exclude or Evict Trespassing Chattels of Another;
- Privileged Invasion of Another's Land or Chattels as a Public necessity;
- Privileged Invasion of Another's Land or Chattels as a Private Necessity;
- Privileged Invasions of Land or Chattels to Abate a Nuisance;
As a Hawaii Private Investigator an Investigation should proceed through a sequence of elements methodically finding an
appropriate act or actionable omission before turning to the issue of "duty," and that there is a breach of duty before considering
Elements of the Prima Facie Case: Act or Omission, Duty, Breach, Causation / Proximate Cause, and Damages
Defenses to Negligence:
- Contributory Negligence: Plaintiff's conduct is a contributing cause to his own injuries and is a complete bar to any
recovery for the negligence of the defendant. There are exceptions. Many states reject this as a defense and replaces
it with Comparative Negligence;
- Comparative Negligence: ...rejects the notion that contributory negligence is always a bar to recovery by plaintiff. It
individualizes accident recoveries on the parties in proportion to their fault;
- Assumption of the Risk: It must be shown that the plaintiff recognized and understood the particular risk or danger
involved and voluntarily chose to encounter it;
(Note: Hawaii had adopted the doctrine of modified comparative negligence. HRS § 663-31 (1995). Under this doctrine, a
claimant's action is barred if his negligence exceeds the combined negligence of all defendants. Otherwise, the claimant's recovery
is diminished in proportion to his degree of negligence. See also: http://www.mcandl.com/hawaii.html for a summary on Hawaii
Medical Malpractice law.)
As a Hawaii Private Detective agency an Investigation should determine whether the facts involved fall into one of the recognized
categories of cases in which courts are willing to impose strict liability, liability without any fault. Those facts are:
- Defendant's animals cause an injury; or
- Defendant is involved in an abnormally dangerous activity
Elements of the Prima facie case: Act or Omission, Duty to Avoid Harm, Breach, Cause/Proximate Cause, and Damages.
Defenses to Strict Liability:
- Comparative Negligence
- Assumption of the Risk
A. PRODUCTS LIABILITY
- Liability based on Intentional Torts (a battery).
- Liability based on Negligence (harm must be foreseeable).
- Liability based on Strict Liability (defective product that caused injury).
- Liability based on breach of an express or implied warrant (especially U.C.C. warranties of fitness for a particular purpose
- Contributory negligence (but is no defense to intentional torts).
- Comparative negligence
- Assumption of the Risk
- Disclaimers (for Strict Liability)
- Statute of Limitations (applies to strict liability injuries)
- Preemption (federal legislation has impliedly preempted state tort law on strict liability).
- Disclaimers (A manufacturer or seller may limit or exclude warranties that would otherwise arise from the sale of
- Notice Requirements (Warranty actions may be barred if the injured purchaser fails to give the seller timely notice of
- Statute of Limitations ( The usual warranty limitations period is four years, running from the delivery of the goods).
Elements of the Prima Facie Case:
- Act by Defendant
- Non-trespass Invasion of Plaintiff's Interest
- Intent, Negligence, or Strict Liability (Defendant's Conduct)
- Substantial and Unreasonable Harm
- Contributory Negligence except for intentional nuisance.
- Assumption of Risk
Element of the Prima Facie case at common law:
- Publication to Third Person
- Understood as Defamatory of Plaintiff
- Allege Falsity
A prima facie case of defamation at common law required the publication to some third person of a statement that harmed the
reputation of the plaintiff, thereby causing the plaintiff to suffer damages. Except for the defense of truth and for certain narrowly
defined classes of privileged communications, defamation was generally a strict liability tort.
- Common Law Absolute Privileges
- Legislative privilege
- Judicial privilege
- Domestic privilege
- Common Law Conditional or Qualified Privileges
- Fair Comment privilege
- Record Libel privilege
- Federal Preemptive privileges
- Defenses of Republishers
- SLAPP Suits (Strategic Lawsuits Against Public participation)
- CONSTITUTIONAL PRIVILEGES
Problems involving defamation should also be investigated for invasion of the right of Privacy or the Wrongful Causing of
D. WRONGFUL INVASION OF PRIVACY (HRS: SURVEILLANCE LAWS IN HAWAII & Hawaii Stalking Laws)
- INTRUSIONS INTO PLAINTIFF'S PRIVATE LIFE OR AFFAIRS
Elements or the Prima Facie Case:
- Highly Offensive Intrusion by Defendant into Plaintiff's Private Life
- Intent or Negligence
Note: Wiretapping Plaintiff's home would be a clear invasion of privacy. But if Plaintiff sought a disability pension or filed a
personal injury complaint, an investigator's efforts to photograph Plaintiff in public would not intrude on reasonable expectations of
Note also that: Trespass on periphery of Plaintiff's land does not show unreasonable surveillance and does not amount to invasions
2. PUBLIC DISCLOSURE OF PRIVATE FACTS
Elements of the Prima Facie Case:
- Highly Offensive Public Disclosure by Defendant of Private Facts about Plaintiff
- No Legitimate Public Interest
- Fault in Making the Disclosure
- Truth is no defense
- Constitutional Privilege
3. APPROPRIATION OF PLAINTIFF'S NAME OR LIKENESS
Elements of the Prima Facie Case:
- Unauthorized use by Defendant of Plaintiff's Name or Likeness for a Commercial Purpose
OTHER TORTS INCLUDE:
- Injurious Falsehood
- Interference with Economic Relations
- Unjustifiable Litigation
Hawaii Private Detectives or Hawaii Private Investigators' methodology must avoid unprofessional conduct that have given rise to
various tort actions, such as defamation, invasion of privacy, trespass, and intentional or negligent infliction of emotional distress.
In a recent (and controversial) decision the Ontario Court of Appeal has decided that private investigators can be liable for the tort
of negligent investigation, that the tort of intentional infliction of mental distress can be committed negligently, and that the
economic torts of inducing breach and unlawful interference require a true intention. (Correia v Canac Kitchens)
Invasion of privacy would occur if private investigator, seeking evidence for use in a lawsuit, looks into plaintiff's bedroom window
with a telescope and takes intimate photographs or video.
One who hires a private detective will be held liable for the torts of the detective if the employer exercises control over the
detective, or if the private detective commits an intentional, not negligent, tort within the scope of the employment. This was stated
in United States Shoe Corp. v. Jones, 149 Ga. App. 595, 255 S.E.2d 73, 75 (1979).
Casual Corner contends that it was insulated from liability as a matter of law because the guard was acting in the status of an
independent contractor. However, even assuming that the evidence would authorize the store to claim such a status as a matter of
law, this would not afford it a defense to the plaintiff's claim. "Even though hirers of an independent security or protective agency
have generally been held not liable for negligent torts of agency personnel, where the hirer did not exercise control over them, hirers
have been held liable for the intentional torts of the agency's personnel committed, in the scope of the agency's employment, against
the hirer's invitees." Noble v. Sears Roebuck & Co., 33 Cal. App. 3d 654 (73 ALR3d 1164) (1973). See Annotation, Liability of One
Hiring Private Investigator, 73 ALR3d 1175. This principle appears to have been followed in Ellenburg v. Pinkerton's, Inc., 125 Ga.
App. 648 (188 S.E.2d 911) (1972), where the employer of a private detective agency was held liable to a third person for an
invasion of privacy committed during the course of an investigation by the agency's personnel, despite the fact that the agency was
employed as an independent contractor. Accord, Greenbaum v. Brooks, 110 Ga. App. 661 (2) (139 S.E.2d 432) (1964). See also
McLeod v. Dean, 270 F. Supp. 855 (DCNY 1967). We accordingly hold that the trial court acted properly in refusing to direct a
verdict or to grant judgment notwithstanding the verdict to Casual Corner based on the independent-contractor defense.
Accord Adams v. F.W. Woolworth Co., 144 Misc. 27, 257 N.Y.S. 776, 781 (Sup. Ct. 1932) ("A store owner who places a
detective agency on his premises for the purpose of protecting his property by various means, including arrests, should not be
immune from responsibility to an innocent victim of a false arrest made by the detective agency, even as an independent
These same principles are applied to an attorney. Thus, whether the attorney who hires the private detective will be held liable for
the torts of the private detective generally depends on whether the attorney exercises independent control over the detective.
Further, even if the attorney does not exercise independent control over the detective, the attorney will be held liable for the
intentional, not negligent, torts of the detective that are committed in the scope of the detective's employment. This was stated in
Committee on Legal Ethics of the West Virginia State Bar v. Lewis, 156 W. Va. 809, 197 S.E.2d 312 (1973):
An attorney, of course, is responsible for the conduct of his investigator in such circumstances when such investigator is
conducting his affairs either with the explicit or implicit knowledge of the attorney. In re Mahan, 228 App. Div. 241, 239 N.Y.S.
392; In re Levine, 210 App. Div. 8, 205 N.Y.S. 589. In view of the long-standing relationship and unquestionable control over the
working procedures of the investigator by the attorney, and reviewing all the circumstances of this case, there is sufficient
inference of agreed agency to hold the attorney responsible for any action on the part of the investigator.
197 S.E.2d at 316.
An attorney may also be liable for the torts of the detective whom he or she hires on an independent basis of liability: negligent
hiring, negligent supervision, or negligent entrustment. Restatement (Second) of Agency 213 (1958); Noble v. Sears Roebuck &
Co., 33 Cal. App. 3d 654, 109 Cal. Rptr. 29 (1973).
As far as defamation the courts have generally held that a private investigator in the employ of an attorney cannot be liable for
defamation in the course of his/her investigation of a litigant. The courts have reasoned that, because the employer/attorney is
immune from a defamation suit brought by a litigant on the basis of the litigation privilege, the attorney's employee/agent is also
immune. Conversely, if the employee/agent is immune, then the attorney is immune for the defamatory statements of the
employee/agent. The attorney's liability, if any, will stem not from vicarious liability for the defamation, but for negligent supervision.
One hiring a private detective can be held liable for trespass by a detective. This was the case in King v. Loessin, 572 S.W.2d 87
(Tex. Civ. App. 1978). In that case, Delcer King contracted with Smith Detective Services to investigate his competitors. Smith's
employee, Thompson, along with another employee, burglarized the offices of Lawrence Loessin. Of significance to the trial court
was that when King hired Smith he said that he did not particularly care how Smith went about his investigation and that money
was no object in getting the evidence; King implied that he would support criminal activity. This led the court to conclude that a
person who contracts with another to perform a service that is unlawful in itself, even as an independent contractor, is liable for
damages for the unlawful act. Id. at 90.
The possibility exists that a private detective may pursue an investigation too zealously, resulting in tort liability. So long as the
attorney has diligently supervised the case and has made the objective clear, including that the investigation be done in a lawful
manner, liability on the part of the attorney appears to be a slim possibility.
The Investigators, LLC's services are predicated on knowledge of Civil Laws (Torts) and their Defenses which is the primary
foundation for an investigator's perspicacity necessary for evidence discovery and acquisition. Our requisite professional
credentials have earned us the compulsory credibility necessary to elicit and educe cooperation from individuals with relevant and
reliable information. We do more than just take pictures. We know what to look for, what to ask, how to ask, and whom to ask.
Above all, we are committed to the axiomatic norms of professionalism. All investigations are confidential and conducted within the
parameters and limitations of authority using personal initiative in the management of all cases at a nominal expense.
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