Editor’s Note: This is an installment in our occasional series, It’s Your Money, that looks more closely at public expenses that taxpayers may not realize they’re being asked to pay.
Driving over the Pali Highway toward Maalaea on an April evening seven years ago, Denise Callo pulled her car onto a piece of the old highway that serves as an unofficial scenic lookout. She told her passengers — James Makekau and Tiffany Romena — it was a nice spot to watch the sunset.
The friends, along with Romena’s infant daughter, had spent the afternoon at a beach in Lahaina. After about a half-hour at the scenic lookout, the friends hopped back in the car and Romena began to fasten her daughter into a car seat in the backseat.
Because the lookout has a single entry and exit point, Callo started to make a U-turn. The unpaved lookout area was held up by an unmortared rock wall that had been in place for decades and supported the abandoned highway before the existing highway opened in 1955.
As the car’s front right tire neared the makai edge of the lookout, the rock wall gave way and collapsed, causing the car to rock before side-rolling over the edge and down a steep incline. The car then plunged over a cliff, landing on the rocky shoreline about 200 feet below.
Callo, 34, the driver, was killed in the accident. Her body was found crushed in the vehicle. Makekau, 16, who was in the back seat, was ejected or escaped during the fall. His lifeless body was found on the rocky shoreline.
Romena, who was in the front seat, was ejected as the car began to roll down, and escaped with minor injuries. Her three-month-old daughter, Kyla, was in the car as it plunged over the cliff, but she survived.
Blood tests would later show the driver had a blood-alcohol level of 0.27 — more than three times the legal limit — and was also under the influence of marijuana.
The families of Callo, Makekau and Romena sued the state for negligence and for not warning the public of the hazardous area. The area falls under the responsibility of the state Department of Transportation’s highway division.
Maui Circuit Court Judge Joseph Cardoza ruled this week that the state was entirely at fault, writing: “The court finds and concludes that the condition of the accident site, and not the presence of alcohol and/or marijuana in Denis Callo’s body, was the sole cause of the accident.”
A total of $3.3 million in damages has been awarded to the plaintiffs in the following amounts:
The plaintiffs’ attorneys argued that the state was inviting motorists onto the hazardous area by paving an access area leading up to the lookout. The state countered that the paved access was intended to keep gravel and rocks from getting onto the main highway.
A Maui engineer for the state Department of Transportation “admitted that the state did not … try to protect against the hazard of vehicles going over the cliff, a hazard it knew existed,” according to Cardoza’s decision.
“There was no evidence presented that members of the public were ever put on notice of any hazards present at the scene, such as the uninspected and unmaintained old unmortared stacked-rock wall,” the judge wrote. “Common sense would not provide notice to anyone using this popular scenic lookout of this potentially deadly hazard.”
It’s been seven years, but the hazard still exists, in much the same condition that the judge said was a major liability for the taxpayers.
A spokesman for the transportation department declined to comment on whether improvements have since been made to the area. He referred comment to the Attorney General’s Office.
Makekau’s mother, however, said the lookout area is still accessible to the public and no warning signs have been posted.
“It’s horrific to even think that they wouldn’t do anything to stop or prevent any further injury or death,” Kalena Dougher, Makekau’s mother, told Civil Beat. “There’s no signage letting people know of the dangers. Even with this lawsuit and all the findings, they haven’t closed it off.”
Cynthia Wong, a Maui attorney whose firm represented Callo and Romena, also confirmed that the state hasn’t repaired the area or blocked it off.
Dougher said the judgment will allow her family to begin the healing process.
“There is nothing that can replace my son,” Dougher said. “The justice is a joy and way for our family to start to heal, but it is accompanied with sorrow because we know that he is not coming home … There is some type of closure knowing that the responsibility was that of the state’s and we now have clearance, if you will, to start the healing process. We’d obviously much rather have my son back than any settlement.”