Raising Cane
By Rob Perez
It could be a scene from a Hollywood movie. Two young college students passionately make out on a high-rise lanai as city lights sparkle in the background. Details emerge in
suit over HPU deathThe students have been drinking. It's close to midnight on a Friday, and other young adults are partying inside the 11th-floor apartment adjoining the balcony.
As the pair embraces, the lanai railing, which is under repair, gives way. Two other students watch in horror as the couple tumbles over the side, falling eight stories onto a concrete parking garage. One victim dies; the other is critically injured.
This frightening fall is far from big-screen fiction.
That scenario actually happened two years ago at Ala Moana Tower, and the real-life drama still is unfolding. Now the stage is Circuit Court.
The families of John S. Sherwood, the 19-year-old Hawaii Pacific University freshman who died in the accident, and Suzanne Johnson, an 18-year-old HPU freshman who was severely injured, have sued the university, two school executives, the building owner, the property manager and the contractor that did the lanai repairs, alleging the defendants' negligence created unsafe conditions that led to the accident.
The defendants have denied the allegations and questioned whether excessive drinking by the victims, both under the legal drinking age, affected their judgment and contributed to the accident.
One defendant, contractor Williams & Associates, recently reached a settlement with both families, agreeing to pay $1 million to each. The company did not admit any wrongdoing but settled to avoid the uncertainties of litigation, its lawyer said.
Settlement talks have been held with the other defendants as well, but no resolutions have been reached, according to court documents.
A review of those documents reveals some intriguing details.
Shortly before Sherwood and Johnson walked onto the lanai of Apt. 1105, for instance, a woman was there with her boyfriend, playfully pretending that she was about to fall off the balcony because of the unstable railing.
"She was sort of dramatizing that it was going to break and she was going to fall over," HPU student Andrew Stone said in a sworn deposition. "Kind of sick, huh?"
A short time later, Stone and his girlfriend, Lauren Potvin, watched in horror as the rail actually gave way, sending Sherwood to his death and Johnson to the hospital for two months and multiple surgeries. Both victims lived in other apartments at the complex.
The railing, which had yellow "caution" tape dangling from it, was one of many in the high-rise that was undergoing repair or scheduled for repair because of deteriorating concrete along the lanai edges.
During the renovation, the weakened concrete at the base of the railings was chipped away, leaving only several screws securing the rails to the lanai.
After the accident, HPU, which rented apartments in the high-rise and subleased them to students, was so desperate to avoid responsibility that a university executive and his subordinate searched the dead student's garbage for evidence that might shift blame to the victims, according to a filing by the Johnsons.
The university and the executive, housing director Patrick Mayock, denied the allegation in court papers.
An attorney representing the university declined comment on the case, citing the pending litigation. A lawyer for Mayock didn't respond to requests for comment.
The Sherwoods, likely expecting character to be made an issue if the case goes to trial, have lined up an impressive list of people to vouch for the dead teen. Among those scheduled to testify on his behalf: a California congressman, city councilman, newspaper editor and chamber of commerce president.
This is the same teenager, though, whom HPU described in court documents as being in "a drunken stupor" when the accident happened. Johnson, the other victim, also was described as being "extremely intoxicated," and Koon Chuck Wong Inc., the building's owner, noted that the blood-alcohol levels of Johnson and Sherwood were 0.19 percent and 0.167 percent, respectively, more than double what is considered legally drunk in Hawaii.
Attorneys for the two families did not respond to requests for comment.
If the case goes to trial, it could hinge on two critical questions:
Did the accident happen because Sherwood and Johnson acted irresponsibly by ignoring warnings to stay off the lanais?
Or did the defendants act irresponsibly by providing insufficient warnings to the students and by not taking adequate steps to prevent people from going onto the balconies?
The defendants, including apartment manager Sunny Isles Properties, said multiple warnings were issued orally and in writing to students, instructing them to stay off the lanais while the construction was on-going.
Yet the court documents indicated that many students, either ignoring the warnings or unaware of them, used the lanais anyway.
Johnson, now attending a California university, testified that none of the warnings ever reached her.
Even the head of the security company that patrolled Ala Moana Tower said he was never informed of the hazardous conditions nor was he instructed to keep tenants off the lanais, according to plaintiff filings.
Surprisingly, the yellow caution tape strung across the railings was the only on-site measure taken to warn anyone approaching the balconies, and that warning was criticized by plaintiffs for being ambiguous.
Michael Petrasek, owner of American International Construction, an Ohio company that specializes in balcony renovations, said his workers routinely block access to balconies whenever repairs temporarily weaken the integrity of the railings.
"Especially with that type of work, it's crucial people not be allowed on the balconies while you're working on them," he said. "Obviously, safety is a major concern."
Petrasek said his company places a piece of lumber along the exterior tracking of the sliding door to prevent it from being opened from the inside. Or the company attaches a piece of wood onto the tracking so the door can be opened only a few inches for ventilation.
The cost for either method, Petrasek said, is negligible. "It's essentially nothing."
As an extra precaution, American International uses 4-feet-tall bright red clamps -- obvious indicators of on-going repairs -- to further secure the railing until the chipped concrete is replaced, Petrasek said. Warning signs also are posted on the sliding doors leading to the balconies.
None of those measures was taken at the 1617 Kapiolani Blvd. building prior to the accident. Yet after the tragedy, doorstops were installed on the lanai doors, according to Richard Gill, an Idaho mechanical engineer whose firm was hired to help the plaintiffs. Gill estimated the cost of installing the stops at about $20 per door.
In his sworn affidavit, Gill faulted as inadequate the measures the defendants took to warn the HPU students and to keep them off the lanais. He said the measures were certain to fail, particularly because the railing hazard wasn't made obvious.
"Having a guardrail in place that would not support normal loads was far more dangerous than having no guardrail at all," Gill wrote. "At least with no guardrail, the hazard is open and obvious."
If the remaining defendants don't settle the case, they'll have a lot to answer to at trial.
The most troubling question: Given the unsafe conditions created during the renovations, why didn't someone spend a few more dollars to make sure the lanais were inaccessible to these 18- and 19-year-old students until the railings were properly secured?
Star-Bulletin columnist Rob Perez writes on issues
and events affecting Hawaii. Fax 529-4750, or write to
Honolulu Star-Bulletin, 500 Ala Moana Blvd., No. 7-210,
Honolulu 96813. He can also be reached
by e-mail at: rperez@starbulletin.com.
