Email John Burnett at jburnett@hawaiitribune-herald.com.
By JOHN BURNETT
Tribune-Herald staff writer
A judge has ruled that the state is not liable for injuries to an Ocean View couple whose car was crushed by a 160-ton rockfall on Highway 11 on March 8, 2007, in Ka’u.
Pahala attorney Ron Self said that his clients, Michael Patrick O’Grady and Leiloni O’Grady, would appeal the decision made following a non-jury trial by Hilo Circuit Judge Greg Nakamura.
In his written decision dated Jan. 23, Judge Nakamura wrote that the plaintiffs “failed to prove by a preponderance of the evidence … it was reasonably foreseeable that rockfall at (mileposts) 72.6 to 73 was so imminent that it was necessary to immediately address the rockfall potential.”
He 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 that they are reasonably safe from rockfalls.”
Nakamura concluded, however, that the “plaintiffs failed to prove … that any breach of duty on the part of the state was a proximate cause of the harm suffered by plaintiffs.”
Self said Friday that he and co-counsel Peter Bersin were “shocked and stunned” by the judge’s decision “not to hold the state liable for the serious and permanent injuries suffered by the O’Gradys.” He said his clients are “devastated.”
The O’Gradys were driving home after work at Naalehu School when the rockslide occurred. Michael Patrick O’Grady has since returned to work for the Department of Education; Leiloni O’Grady has been unable to work since the incident. Bersin told the Tribune-Herald in November that Leiloni O’Grady’s medical expenses have been $150,000 and could reach $800,000 in the future. He pegged her lost earnings as “at least $200,000.”
“The decision has caused a true feeling of injustice and helplessness,” Self said. He said his clients “have the overwhelming feelings that the powerful state was treated differently in court than they were.”
Self said his case “proved the state ignored a longtime known dangerous rockfall condition on Highway 11 in Ka’u beyond a reasonable doubt.” He argued that on April 16, 1999, an earthquake caused a 150-ton rockfall at the accident site and that a December 2004 study commissioned by the state found the site “as a dangerous rockfall condition.”
“This accident could have happened to any innocent driver or school bus,” he said Friday.
Self said that after the incident, the state “did remedial repairs at the site for only $1,500 for a consultant and the regular maintenance crew.”
Deputy Attorney General Randolph Slaton, who argued the state’s case in court, declined to comment about the decision or the case on Friday.
Slaton argued during trial that of 300-some “Class A sites” statewide — those with a high potential for rockfalls — almost half are on the Big Island.
“This site never rose to the Top 10 sites on Highway 11, let alone on the Big Island,” he said in his opening argument, adding that money for remediation went to sites higher on the list and that the state is not legally liable for the O’Gradys’ injuries.
In court, Slaton disputed the plaintiffs’ contention that the site could have been made safer for $1,500 prior to the incident, arguing the cost of grading “was much less because the major boulder was gone” after having fallen on the O’Gradys’ car.
Nakamura agreed with the state’s argument. In his decision, he wrote “there was no showing that the scope and complexity of the work required to mitigate rockfall … was the same prior to March 8, 2007, as compared to after March 8, 2007.”
Since the state was the only defendant, the O’Gradys were not entitled by law to a jury trial. Self said he believes the law should be changed to allow a jury trial in those cases.
“The problem with a court trial with the state being a defendant is that it has the appearance of a conflict of interest,” he said. “All judges are state employees, whose budgets, salary, benefits and other financial matters are controlled by the state.
“It sure doesn’t look fair does it?”
Email John Burnett at jburnett@hawaiitribune-herald.com.