$3M settlement in rockfall case

HILO — A joint state House-Senate conference committee recommended on Thursday the passage, with amendments, of a bill that would appropriate $3 million for an Ocean View couple seriously injured when a rockfall crushed their car a dozen years ago on Highway 11 in Ka‘u.

The settlement for Michael Patrick O’Grady and Leiloni O’Grady is, by far, the largest among $6.1 million worth of cases settled by the state attorney general’s office. The appropriations measure, House Bill 942, will be returned to both legislative chambers for a vote. If approved, it would then go to the governor for his signature.

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The O’Gradys were driving home from work at Naalehu School on March 8, 2007, when a rockslide weighing an estimated 160 tons crashed onto their car between the 72- and 73-mile markers, causing the vehicle to roll over. Both plaintiffs, then in their 50s, sustained multiple broken bones, traumatic brain injuries and internal injuries.

The state Supreme Court on June 7, 2017, overturned a Jan. 23, 2012, ruling by Hilo Circuit Judge Greg Nakamura that the state wasn’t liable for the damages suffered by the O’Gradys. In his written ruling, Nakamura — who presided over a weeklong bench trial in November 2011 — said 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.”

The judge concluded, however, 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.”

After vacating the ruling, the Supreme Court sent the case back to Nakamura. The Hilo judge subsequently amended his findings of facts and conclusions of law to reflect the high court’s decision that the state breached its duty of care by not having a routine system of rockfall mitigation, and the breach caused harm to the O’Gradys — which made the state liable for their damages.

According to court records, Nakamura disqualified himself from the case on Nov. 8, 2018. It was reassigned to Hilo Circuit Judge Henry Nakamoto.

Written testimony on the bill by the attorney general’s office said the settlement was reached on Nov. 28, 2018, with retired Hawaii Supreme Court Justice James Duffy serving as mediator.

Pahala attorney Ron Self, who represents the O’Gradys, declined comment Friday, saying the case is still open.

It’s unclear what the amendments recommended by the conference committee are at this time, but the attorney general has requested the settlement amount be reduced from $3 million to $2,891,721.86 to cover state expenses in the case.

Other cases

The measure also contains appropriations for settlements against the state in three other Big Island court cases — two involving schools and the other, a Department of Land and Natural Resources employee the state admits “was solely at fault” in a Kona traffic collision.

One school-related settlement, if approved, would pay $50,000 to the court-appointed guardian of a student at Keaukaha Elementary School in Hilo. The guardian sued the state on the girl’s behalf in 2014, alleging the minor slipped or tripped over an area rug on a classroom floor and fell, suffering a broken hip that rendered her unable to walk.

According to the attorney general’s written testimony, the girl underwent surgery on both hips as well as subsequent surgeries — one for foot pain, the other, to remove the metal in her hips and knee. The girl’s orthopedic surgeon reportedly testified the second surgery was unrelated to the fall.

A court-approved arbitrator awarded the plaintiff $144,976.64. The case was later settled for $50,000.

In the other school-related case, filed in 2016 in Kona Circuit Court, the plaintiff, Pamela Miller-Potter, was at a night meeting at Waimea Middle School and, after excusing herself to go to the restroom, tripped over a bench in a hallway where the lights had burned out.

According to the attorney general’s written testimony, Miller-Potter suffered “facial and dental injuries and scarring, right shoulder pain, and aggravation of a pre-existing left knee condition that necessitated a total knee replacement.”

Miller-Potter’s settlement demand claimed medical expenses of $212,846.46. Mediation in the case, however, resulted in a settlement of $75,000.

There also is a $70,000 appropriation in the bill to pay a claim by Penny Boucher, who filed suit in 2016 against Michael Vitousek and the state. The state admits it is “fully liable” in the case, which was brought after Vitousek, a DLNR archaeologist, entered the intersection of Queen Kaahumanu Highway and Nani Kailua Drive in Kailua-Kona and struck the vehicle driven by Boucher, who had the right-of-way.

Boucher’s vehicle was totaled and she sought $450,000 in damages, alleging she suffered from post-concussive syndrome plus ankle pain and injuries to both knees, one of which required surgery, and also underwent hernia surgery.

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The acceptance of the $70,000 settlement offer was filed in Kona Circuit Court on April 11, 2018.

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

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