Tuesday | September 19, 2017
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Supreme Court: Judge erred in rockfall injury case

The state Supreme Court vacated a Hilo judge’s ruling that the state is not liable for injuries suffered by a then-Ocean View couple whose car was crushed March 8, 2007, by a 160-ton rockfall on Highway 11 in Ka‘u.

The high court’s decision upon appeal returns the case of Michael Patrick O’Grady and Leiloni O’Grady to the courtroom of Hilo Circuit Judge Greg Nakamura, possibly for another trial. In his decision dated Jan. 23, 2012, following a non-jury trial, Nakamura wrote that the state “owes a duty to maintain its highways so they are reasonably safe for their intended uses” including “the duty to exercise ordinary care to maintain the areas adjacent to the highways and shoulders so they are reasonably safe from rockfalls.” But the judge concluded that the “plaintiffs failed to prove … that any breach of duty on the part of the state was a proximate case of harm suffered by the plaintiffs.”

The O’Gradys were driving home after work at Naalehu School when the rockslide occurred, at a location identified in a December 2004 study commissioned by the state as a “Class A” site — one with the highest potential of a rockfall. Both were seriously injured. Michael O’Grady later returned to work for the state Department of Education but has since left. Leiloni O’Grady was never able to return to work.

The couple, who are in their 60s, now live in Panama.

“The circuit court appears to have required the O’Gradys to prove that the State’s fulfillment of its duty of care would have prevented the rockfall from occurring,” the Supreme Court decision stated. “… Instead of considering whether the State’s conduct was a substantial factor in bringing about the harm, the circuit court considered whether the State’s performance of its duty would have prevented the rockfall from occurring. … A court may not frame its legal causation analysis in a manner that does not allow for multiple causes of a single injury.”

Ron Self, a Pahala attorney who represented the O’Gradys, said he was “baffled” by Nakamura’s decision and added that it appears the high court justices were, as well.

“For some reason, a mystery to me, the court failed to find causation,” Self said. “He found a duty upon the state. He found that they breached that duty. But, for mysterious reasons, he misapplied the law of causation in a serious way. This has lasted 10 years, so far, from the date of the accident. And, at least in my opinion, this case should have been resolved probably a couple of years after the accident. … The reason I say that is because the state (Department of Transportation Highways Division) just didn’t do their job. This was a really clear case of negligence on their part. But it got put in the hopper at the Attorney General’s office, and they just kept litigating a case that shouldn’t have been litigated.”

The attorney general’s office didn’t respond to requests for comment by press time Friday. In the seven-day trial that took place in November and December 2011, Deputy Attorney General Randolph Slaton, who’s since retired, argued that of 300-some Class A sites statewide, almost half are on the Big Island.

In his opening statement, Slaton said the site where the O’Gradys were injured “never rose to the Top 10 sites on Highway 11, let alone on the Big Island,” adding that money for remediation efforts went to sites higher on the list and the state wasn’t legally liable for the O’Gradys’ injuries.

Under the state’s Tort Liability Act, since the state was the only defendant, the O’Gradys weren’t entitled to a jury trial.

“The intention of (the law) to allow for people that are injured because of the negligence of the state, that the state will take care of that … and that they will stand up and be responsible for their errors. And in this case, there was no standing up. And here we are 10 years later,” Self said. “The O’Gradys really were seriously injured. They were unable to continue with their employment. And now, all these years later, they’ve had to move someplace where it’s less expensive to live.

“This is an important case. It’s a seminal case. It’s the first one I know of with a published opinion about rockfalls on highways in Hawaii. So it is an important case, but for my clients, it’s personal. It’s their life. And I hope the state recognizes, hey, we’ve got to take care of this case. But you never know. The attorney general’s office is the people’s lawyers. And really, (the O’Gradys) were state employees. They were really important to our community here in Ka‘u. One was a speech pathologist; the other was a counselor who really dealt with some difficult issues. They were really good for our community.

“And boy, they didn’t get treated very well, did they?”

Email John Burnett at jburnett@hawaiitribune-herald.com.

 

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