State of Hawaii Agrees to Pay $15.4 Million to Settle Hiking Death Suit

[Snowflea]

This news is a couple of weeks old, but I didn't see it posted here...

Elizabeth Warke Brem... died more than five years ago in a hiking accident on the Hawaiian island of Kauai. Brem's cousin Paula Ramirez was killed in the same tragic mishap during their vacation to the island paradise in December 2006. With the state of Hawaii having already been found liable for the women's deaths -- and with a civil trial on damages set to start this week -- Hawaiian officials agreed to pay the victims' families $15.4 million in what one lawyer connected to the case says is the largest personal injury settlement in state history.

Rest of article: http://amlawdaily.typepad.com/amlawdaily/2012/03/hawaii-brem-gibson-dunn.html

 

[MichaelJ]

This is fascinating. The two women hiked up a trail to a fork. There was a warning sign in front of the left-hand trail, so they took the right-hand one, and ended up plunging down a 300-foot cliff, asserted to be obscured by vegetation, to their deaths.

The state was found fully liable. "Kauai circuit court judge Kathleen Watanabe ruled the state is completely at fault – saying employees put visitors at greater risk by erecting the sign than if they had done nothing at all."

I do have to agree with that. If you put a warning sign in one direction, I'm going to assume the other direction is safer.

That said, I still don't understand how they fell down the cliff.

 

[Fisher Cat]

That said, I still don't understand how they fell down the cliff.

We have done extensive backcountry hiking on multiple trips to Hawai'i, Kauai, and Maui, and can vouch to the fact that some of these areas are HEAVILY forested and jungle growth is profusive, ledges, steeps, crevices come up on you quick. Its the equivalent of close-in brush fighting. If someone is not familiar with the area this can only heighten any natural dangers, perhaps that was a factor.

 

[sardog1]

This is fascinating. The two women hiked up a trail to a fork. There was a warning sign in front of the left-hand trail, so they took the right-hand one, and ended up plunging down a 300-foot cliff, asserted to be obscured by vegetation, to their deaths.

The state was found fully liable. "Kauai circuit court judge Kathleen Watanabe ruled the state is completely at fault – saying employees put visitors at greater risk by erecting the sign than if they had done nothing at all."

I do have to agree with that. If you put a warning sign in one direction, I'm going to assume the other direction is safer.

That said, I still don't understand how they fell down the cliff.

This was precisely the issue in the Weingarten lawsuit, which you will undoubtedly recognize as the lawsuit involving a woman who fell into a crevasse in Tuckerman Ravine. Her father sued the U.S. Department of Agriculture (parent agency of the Forest Service), alleging that failure to place a warning sign was negligence for which the USDA was liable. The judge dismissed the suit, finding that the decision not to place such a sign was the sort of "discretionary act" for which an agency could not be held liable under the Federal Tort Claims Act.

The feds settled a similar suit in Alaska about ten years ago or so, by paying the husband who was taking a photo of his wife when she was killed by an icefall from a glacier face. The sum was around $137,000 as I recall. The decision to settle caused righteous outrage in some quarters in Alaska.

 

[dug]

I think the differentiator would be the comment by the judge "...saying employees put visitors at greater risk by erecting the sign than if they had done nothing at all."




Also, not a lawyer, but I immediately wondered "HOW" they know this is what happened. Who's to say they weren't looking to climb down the ledges for a better picture and fell?

 

[jrbren]

I know nothing of the situation other then what I read here. That is always the danger of trying to pass judgement based on soundbites. But if there was a sign at he top of the cannon cliff in NH that said jump off here with an arrow pointing downward, I still think I am at fault if I do it. I think most people agree until they learn the person who put it there has allot of money. I have bushwacked in cripple brush in the Adirondacks & Green Mountains of Vermont, where I am fighting through the thicket and suddenly come to a cliff. Almost went over once on Ethan Allen, but I am still responsible for where I go. I find it difficult to understand any justification for this.
Even if I agree the sign was irresponsible, how do we arrive at $15.4 million ? How are the tax payers at fault here ? In the future will we just be scared to place any signs at all due to this reasoning ? Again, I only hear the soundbites of this thread & referenced article, maybe if I heard the entire case I would see this differently.

I ofcourse can't help but picture glacier travel on mountains like rainier. They wand one way due to a known hazard like a weak snow bridge and and direct others to try another way. That does not mean the other way is free of hazards. At least I would never assume that on a glacier, volcano or elsewhere.

 

[marnof]

This is certainly an interesting and tragic case. My experience from having sat in a civil case as a juror, is that the state, (CT in my case), is liable if they are found to be more than 50% responsible for the incident. Much easier to prove than in criminal court, where the standard is "beyond a reasonable doubt," I believe. I'm not familiar with HI court system, though.

The Honolulu Star Advertiser: ...(quoting the court)

“The state impliedly invited Elizabeth Brem and Paula Ramirez to use the righthand trail leading out of the Opaekaa Falls clearing and created a false appearance of safety with respect to such use and therefore owed a special duty to exercise reasonable care for their safety.”

A barrier now blocks the trail heads with several signs posted to warn the public of hazardous conditions.

AmLaw Daily:

(they)...took an unmarked path to the right that lead them to a steep cliff covered in heavy vegetation.

Honolulu attorney Mark Davis, who represented Brem's family, said they will receive $15 million. He said Brem was a successful lawyer in one of the nation's largest law firms.
"She had an extremely bright career ahead of her, but the family decided they would settle the case for this negotiated amount to give them closure to the tragedy and move on," he said.

From this description, I'm gathering that the trail they took was possibly a herd path of sorts. Is the state responsible for these? Perhaps for not closing them, it seems.

The $15 million settlement must be compensation for loss of future wages? I'm queasy about putting a monetary value on a person's life, but that's basically what happens in some civil court proceedings.

 

[Maddy]

I have to be honest. I do not comprehend this. You hike in the wilderness and IMHO you don't expect an interstate. There are many different kinds of scary conditions out there. Maybe the answer is to not blaze any trails at all. You get what you get. I would certainly not avocate for it because I won't hike on unblazed trails. Because you have an arrow pointing you a certain way does not mean you have a pristine trail. Does this mean if you trip over a fallen branch and break your leg you can sue?

When I hiked up Giant Mountain last summer with Dot Meyer, I knew we were approaching "blueberry ledges" and I asked the people ahead to please let me know as we got close because I wanted to leash Molly. It was my responsibility to check to be sure that this was not a dangerous area. It wasn't... so I unleashed her again. When we hike I am constantly checking to be sure Molly doesn't put herself in a dangerous situation. She is still too young and is not always a great judge of terrain. It's no ones fault but mine if she gets seriously injured.

This reminds me of the very large award that someone received when they spilled hot coffee all over themselves at ? Mc D's.
I have burned myself in my own kitchen. You handle something hot and spill it all over yourself, what do you expect.

I can understand a ski area being sued if they don't rope off a very icy steep slope because we pay to ski. Although I doubt I would even do that. If the terrain is that bad, move off to the side or go back up. Get out of there if you can. I fell down the headwall at Killington and stopped in a tree. I broke my neck but had no cord compression. It was very icy but I honestly never in my wildest dreams would have sued Killington. I knew what I was getting into and did it anyway.

The area of the mountain has been described as jungle like, dense, etc. Wouldn't you grab onto something as you lose your balance. Or was this a big steep open area that you would have noticed? I would love to see a close up pic of where this happened.

I am very sorry these women died but I don't understand how one can get this kind of settlement because they went for a walk in the woods. And how on God's green earth did they fall down a 300 foot cliff without realizing that it existed.

 

[sardog1]

Even if I agree the sign was irresponsible, how do we arrive at $15.4 million ?

One of the decedents was an accomplished lawyer with a substantial income and surviving spouse and children. Rightly or wrongly, what you earn in life makes a significant difference in calculating the damages in a liability case.

 

[sardog1]

This article is more than ten years old and not offered here as being authoritative. But it does provide some perspective on the issues involved in this case: LANDOWNER DUTY: ASSURE PREMISES NO MORE DANGEROUS THAN IT APPEARS TO BE

 

[Maddy]

One of the decedents was an accomplished lawyer with a substantial income and surviving spouse and children. Rightly or wrongly, what you earn in life makes a significant difference in calculating the damages in a liability case.

And now we have answer to the mystery! Thanks Sardog.

 

[David Metsky]

This reminds me of the very large award that someone received when they spilled hot coffee all over themselves at ? Mc D's.
I have burned myself in my own kitchen. You handle something hot and spill it all over yourself, what do you expect.

She received 3rd degree burns and needed skin grafts. McD's was completely in the wrong in this case for a variety of mistakes on their part, they had been warned about it and chose to ignore it in an attempt to save money. The woman just wanted her medical bills covered, McD's refused even that.

Back to your regularly scheduled program.

 

[Raymond]

I agree with Dave. People love to bring up that case as though it was a miscarriage of justice, but they are wrong.

You can read more about it here.

Selected sections of that article:

‘‘A vascular surgeon determined that [burn victim Stella] Liebeck suffered full thickness burns (or third-degree burns) over 6 percent of her body, including her inner thighs, perineum, buttocks, and genital and groin areas. She was hospitalized for eight days, during which time she underwent skin grafting. Liebeck, who also underwent debridement treatments, sought to settle her claim for $20,000, but McDonalds refused.

During discovery, McDonalds produced documents showing more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck’s. This history documented McDonalds’ knowledge about the extent and nature of this hazard.

‘‘... McDonalds’ quality assurance manager testified that the company actively enforces a requirement that coffee be held in the pot at 185 degrees, plus or minus five degrees. He also testified that a burn hazard exists with any food substance served at 140 degrees or above, and that McDonalds coffee, at the temperature at which it was poured into styrofoam cups, was not fit for consumption because it would burn the mouth and throat. The quality assurance manager admitted that burns would occur, but testified that McDonalds had no intention of reducing the ‘holding temperature’ of its coffee.’’

 

[TomD]

Maddy, to follow up on why Brem's family got $15M. She was an equity partner (meaning part owner) at a global law firm based here in LA, Gibson, Dunn & Crutcher. Equity partners at the firm earned about $1.75M each in 2006, according to a salary survey I found online, so figure she was earning perhaps $2.2 or so including salary, plus profit share. So, $15M represents maybe 7 years of income. Of course, the attorneys will take somewhere between 30-40% as their fees. She was 35, which means she could have worked for perhaps another 25 years if she wanted, making the same or more money.

The other person's estate got far less--$425K, which isn't much for a wrongful death case.

I used to live in Hawaii. I didn't spend much time on Kauai, just a couple of months working on a film. In general, hiking in the mountains on any of the islands can be dicey-the weather can be rainy, the ground slippery and the tracks not particularly well maintained. I haven't read the decision, but I can guess what the reasoning is.

Someone mentioned the Federal Tort Claims Act. I am familiar with the application of the immunity involved and know of another case that is up on appeal in which that is the issue-in that instance, a sign warning of a hidden dam in a river was missing (washed away by high water) and a couple of people drowned when their boat hit it and overturned. The question on appeal is whether replacing the sign was discretionary or not.

 

[dug]

When I first read the story, I poked around a little and uncovered two more salient points. First, a park ranger (or similar) was up on the ridge and he felt it was dangerous. He wanted the trail closed and wrote it in his report. Instead, the sign was put on the opposite side of the trail. Second, another hiker fell 200' down the same cliff in what appears to be the similar incident. So, there was precedence already. He made a comment that he was walking toward the edge, and the bottom just dropped out from under his feet. Apparently...it turns from solid ground to vegetation under you, and it's hard to tell. (that is answering the "how could someone walk off the cliff" question).

 

[Maddy]

She received 3rd degree burns and needed skin grafts. McD's was completely in the wrong in this case for a variety of mistakes on their part, they had been warned about it and chose to ignore it in an attempt to save money. The woman just wanted her medical bills covered, McD's refused even that.

Back to your regularly scheduled program.

Had not heard that version previously.

 

[Maddy]

When I first read the story, I poked around a little and uncovered two more salient points. First, a park ranger (or similar) was up on the ridge and he felt it was dangerous. He wanted the trail closed and wrote it in his report. Instead, the sign was put on the opposite side of the trail. Second, another hiker fell 200' down the same cliff in what appears to be the similar incident. So, there was precedence already. He made a comment that he was walking toward the edge, and the bottom just dropped out from under his feet. Apparently...it turns from solid ground to vegetation under you, and it's hard to tell. (that is answering the "how could someone walk off the cliff" question).

Very good info.

And Tom D's post also..".Someone mentioned the Federal Tort Claims Act. I am familiar with the application of the immunity involved and know of another case that is up on appeal in which that is the issue-in that instance, a sign warning of a hidden dam in a river was missing (washed away by high water) and a couple of people drowned when their boat hit it and overturned. The question on appeal is whether replacing the sign was discretionary or not. "

Would love to know how they resolve this.

 

[TomD]

Maddy, Here is the outcome. The Supreme Court refused to hear the case on appeal to that court so the Ninth Circuit decision from 2010 is the final word-
Bailey v. United States, 623 F.3d 855
A brief analysis from Lexis-
PROCEDURAL POSTURE: Plaintiffs, a decedent's widow and children, appealed from the U.S. District Court for the Eastern District of California, which granted defendant government's motion to dismiss plaintiffs' complaint on grounds the Federal Torts Claims Act (FTCA) provided the government immunity from suit, because the decision not to place warning signs above a dam on account of worker peril was a discretionary decision of the Army Corps of Engineers (Corps).

OVERVIEW: On appeal, the court noted no regulation or guideline required the Corps to replace the missing warning signs before a busy weekend or within a specific period of time after receiving notice the signs were gone. The Corps's sign manual stated only "that missing or damaged signs must be replaced or repaired in a timely manner." The determination of when to replace the signs was left to the discretion of the Corps. The Corps's decision regarding when to replace the missing signs on the Yuba River required the Corps to balance competing policy interests. The Corps had to balance the safety of its workers and the risk to its other limited resources, i.e., its equipment, in replacing the signs in dangerous conditions against the competing public safety interest in having the signs replaced sooner. Under the discretionary function exception at 28 U.S.C.S. § 2680(a), the Corps's discretionary decision as to when to replace the signs was susceptible to policy analysis and was immune from suit.

 

[Maddy]

Maddy, Here is the outcome. The Supreme Court refused to hear the case on appeal to that court so the Ninth Circuit decision from 2010 is the final word-
Bailey v. United States, 623 F.3d 855
A brief analysis from Lexis-
PROCEDURAL POSTURE: Plaintiffs, a decedent's widow and children, appealed from the U.S. District Court for the Eastern District of California, which granted defendant government's motion to dismiss plaintiffs' complaint on grounds the Federal Torts Claims Act (FTCA) provided the government immunity from suit, because the decision not to place warning signs above a dam on account of worker peril was a discretionary decision of the Army Corps of Engineers (Corps).

OVERVIEW: On appeal, the court noted no regulation or guideline required the Corps to replace the missing warning signs before a busy weekend or within a specific period of time after receiving notice the signs were gone. The Corps's sign manual stated only "that missing or damaged signs must be replaced or repaired in a timely manner." The determination of when to replace the signs was left to the discretion of the Corps. The Corps's decision regarding when to replace the missing signs on the Yuba River required the Corps to balance competing policy interests. The Corps had to balance the safety of its workers and the risk to its other limited resources, i.e., its equipment, in replacing the signs in dangerous conditions against the competing public safety interest in having the signs replaced sooner. Under the discretionary function exception at 28 U.S.C.S. § 2680(a), the Corps's discretionary decision as to when to replace the signs was susceptible to policy analysis and was immune from suit.

Thanks for sharing this. Very interesting.