A wrongful death on a state highway, a near-drowning during a public summer school class and other legal settlements are expected to cost taxpayers $1.1 million or more this year.

The settlements are part of the annual “Claims Against the State” bill, which lawmakers took up for the first time this session on Tuesday.

Gov. David Ige’s administration is asking for money to pay for damages caused by the state or its employees in 12 cases so far. The number of settlements, and the amount of money taxpayers will be footing, is expected to grow as the session continues through May.

Senator Clarence Nishihara speaks in opposition to Nolan Espinda confirmation.
Sen. Clarence Nishihara introduced a bill that attempts to hold state departments more accountable for legal settlements. Cory Lum/Civil Beat

Of the $1.1 million in settlements, about $210,000 will come straight from the general fund. About $950,000 for two settlements involving the Department of Transportation will come from the department’s budget.

Last year, the bill for all the state’s settlements grew from just over $1 million at the beginning of session to $6.1 million by the end.

Lawmakers are considering a separate bill this year that would make departments pay directly from their budgets instead of asking the state for more money to cover the settlements.

“Hopefully that could act as a break for people thinking they won’t be held accountable for paying it,” Sen. Clarence Nishihara, the bill’s author, said.

Special Ed Student Nearly Drowns

The Department of Education is asking for $130,000 from state general funds to settle a case in which a special education student nearly drowned to death in Kalani High School’s pool.

The student, who is only referred to in the lawsuit as K.Z., was participating in a summer session physical education class in June 2017.

K.Z. was among a group of students who could not swim and were instructed to hang on to the side of the pool, according to the Attorney General’s testimony. None had flotation devices.

At one point in the class, the instructor left that group of students unattended. That’s when K.Z. walked toward the deep end.

A special education student nearly died from drowning in 2017 at Kalani High School. Blaze Lovell/CivilBeat/2020

“When he started to struggle, K.Z. was fully underwater and looked initially like he was playing around. This delayed his classmates’ call for help,” the Attorney General’s Office said in testimony to legislators this week.

The instructor couldn’t see K.Z., who emergency services personnel later said could have been underwater for three to four minutes. A lawsuit filed on behalf of the student alleged that the Department of Education failed to ensure that the instructor was qualified or had enough experience to monitor kids in the pool.

“Another student saw minor K.Z. lying motionless at the bottom of the pool and jumped in to pull him out of the water,” the lawsuit filed in May says. “After being pulled from the pool, minor K.Z. was unresponsive and seizing when emergency medical services were called to the school.”

K.Z. was later revived at a hospital, but the lawsuit says the student could have suffered permanent damage to cognitive functions.

Richard Turbin, the Honolulu attorney who represented the minor in the case, said the student recovered from the incident.

“We’re all very grateful to the student who saw him and made sure he was saved,” Turbin said in a phone interview Wednesday.

Wrongful Death In Scooter Crash

The Department of Transportation will pay out $950,000 for damages in two separate cases on state roadways if lawmakers approve the settlement agreements.

One was a wrongful death case from 2016 that will cost the state $650,000. The suit stems from a 2014 moped crash that killed a 16-year-old girl on the Likelike onramp to H-3.

Nicolette Vares was heading onto the H-3 in the Pearl Harbor bound direction when she lost control of her Vespa scooter and hit a guardrail. Her father Nick Vares, who later filed the suit, was riding behind her on his motorcycle.

H3 Freeway on the Kaneohe Side of the Koolau Mountains.
Nicolette Vares was heading onto the H-3, a portion of which is seen here, in the Pearl Harbor bound direction when she lost control of her Vespa scooter and hit a guardrail. Cory Lum/Civil Beat

The suit alleged that there weren’t adequate signs to warn drivers heading into the turn.

A federal police officer and an Aiea man were killed on the same hairpin turn in separate incidents within months of the Vares crash.

Speed limits on Likelike Highway are around 55 miles per hour, though that slows to 25 miles per hour on the onramp just before the hairpin turn. At the time of the crash, the speed limit sign was the only one visible in the area.

The lawsuit, which was initially filed against the City and County of Honolulu, asked that additional signage be added including flashing yellow lights, chevrons to show the path of the turn and a sign indicating that there is a turn.

The state settled the case in November.

In a separate case on the Big Island, the DOT will pay $300,000 to two women injured by a boulder in 2013.

Joan Mayo and Helene Hayselden were driving north along Hawaii Belt Road to deliver a rental car to Kona when they struck a boulder in the road near Maulua Gulch about 5 a.m. Mayo was driving and didn’t have time to see the boulder because it was around a corner and not visible in the dark road, according to the lawsuit.

“The boulder was just suddenly there,” her attorney, Arthur Park, said Wednesday. “They were driving the speed limit, and whammo! They could barely tell what they hit.”

Mayo and Hayselden were out of work due to injuries, the AG’s office said in its testimony. One had to have neck surgery, the Hawaii Tribune-Herald reported in 2017.

Park said they still have some residual injuries, but both have otherwise recovered.

The 2017 lawsuit alleges that the state knew of rockfall hazard on that section of the Hawaii Belt Road. The Legislature gave the state $41.55 million between 1997 and 2013 for rockfall mitigation and slope stabilization, according to the lawsuit.

The state settled in June. Park, the attorney for the plaintiffs, told the court that his clients are also awaiting a workman’s compensation case because they were injured while on the job, according to minutes of the court proceeding.

The state was recently on the hook for a similar lawsuit when a Big Island couple was injured by several tons of rocks that fell into the road.

The state Supreme Court recently ruled in that case that the DOT’s negligence led to the rockfall. Last year, lawmakers gave the state $3 million to settle the lawsuit.

Department Funds

While the DOT will pay out of its funds for settlements this year, the other cases involving the DOE, the Department of Public Safety and the Department of Land and Natural Resources will all come from the state general fund.

Nishihara put forward Senate Bill 2522 this year, which would require each department to pay for settlements out of its own funds.

Nishihara said the impetus for the bill was also to protect state employees from retaliation from their departments. He said in some cases, when employees did something to get the state sued, the department could go after the employee.

The employees could file a grievance, and if the department chooses to challenge and loses, the state would be on the hook to make payments to them. Nishihara said the department should be responsible for those types of payments.

“Hopefully it makes them more thoughtful when they decide to challenge these things,” he said.

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