Damages settlement urged
in Sacred Falls case

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By Debra Barayuga
dbarayuga@starbulletin.com

A state judge has asked the state and plaintiffs in the Sacred Falls rockslide lawsuit to try and agree on damages to resolve the case.

STAR-BULLETIN / 2001 Warning signs mark the locked entrance to Sacred Falls. Earlier this month, a judge ruled that the state failed to adequately warn of the danger of falling rocks.

And they are also talking about the issue of whether the victims were negligent, if at all, for their injuries.

If the parties cannot reach an agreement by Monday, Circuit Judge Dexter Del Rosario will rule on the state's request to put the upcoming damages phase of trial on hold and appeal his recent ruling that the state was negligent and liable for the eight deaths and numerous injuries in the Mother's Day 1999 rockslide.

That phase was to begin in January. Del Rosario ruled earlier this month that the state knew about previous rockfalls that injured or killed at least one person in 1982, but failed to adequately warn visitors of the severity of the rockfall hazards, particularly in the waterfall area.

The state contends the court's ruling has tremendous impact on public policy and the issue of liability needs to be resolved by the appellate courts. Because there is no controlling legal precedent on the adequacy of warning signs, the state says it needs guidance on how to proceed.

Plaintiffs' attorneys oppose the state's request, calling it an improper attempt to intervene in an unfinished case and that the Hawaii Supreme Court "totally frowns on piecemeal appeals."

Attorney James Kawashima, who represented the state at trial, argued that it's difficult, if not impossible, for the state and Department of Land and Natural Resources to continue operating other state parks in light of the court's ruling.

While the findings were restricted to Sacred Falls and the circumstances surrounding it, Del Rosario's ruling has significant, far-reaching implications that affect the state's duties as a landowner and the way it manages other state parks, Kawashima said.

The trial on damages and comparative negligence is expected to last two to three months and judgment not expected for at least six months to a year, during which time the state parks would have difficulty operating, he said.

Attorney Arthur Park, who represents the families and victims in the rockslide, said the delay denies the plaintiffs justice.

"Let's just get this case moving -- it's been sitting for three years -- and get damages determined, and then the state can appeal," Park said.

He said they're not hopeful that an agreement can be reached, "but we're going to try as we've been trying all along."

Park said the state has taken a hard line on this case and has been "dangling" a settlement for the last three years.

But when the parties have sat down to negotiate, the state's position has been one of "No way, Jose -- not one penny," Park said.

If the state is so sure it will win on appeal and be found not liable, their attorneys run no risk in agreeing to damages, he said.

The court's ruling was written in a way that the chances of reversal are "slim to none," Park said. If the state asks for certification on the question of liability, the Hawaii Supreme Court is likely to kick it back down because it doesn't allow piecemeal appeals, he said.