Hawaii courts soon may have to address a novel legal question related to the Maui wildfires: whether allowing invasive grass to grow unheeded on one’s property is the legal equivalent of keeping radioactive waste, dynamite or a dangerous wild animal.

“This is an ultrahazardous activity,” plaintiff’s lawyer Ken Kasdan said, referring to what he alleges is a failure of large Maui landowners like Kamehameha Schools and West Maui Land Co. to control vegetation on their property. “There is not a lot of difference between your stick of dynamite and these fields of grasses just waiting to explode.”

Kasdan is one of the latest in a stampede of lawyers to Maui’s state circuit courthouse after the fires. His complaint on behalf of Lahaina resident Chardell Naki, whose home was destroyed in the Aug. 8 maelstrom, alleges landowners like Kamehameha Schools and West Maui Land fueled the devastating blazes by allowing combustible grasses to flourish on their property.

“If you own the fuel, you own the fire,” the complaint says.

In a statement, Kamehameha Schools noted the cause of the fires is still under investigation and did not want to speculate or put forward premature conclusions. But it said the organization is committed to restoring its “lands and waters to produce robust food systems, native ecosystems and educational opportunities.”

“Reversing over a century of degradation and exploitation of the land from colonialism and plantations is a long and difficult process,” a spokesman said. “We will continue to work with our communities to bring our culture, people, and resiliency back to the aina.”

West Maui Land Co. declined to comment.

Most of the roughly two dozen suits filed so far center on claims of negligence, usually on the part of the state, Maui County or Hawaiian Electric Industries. Kasdan’s complaint does the same, alleging the state of Hawaii, Maui County and landowners were negligent by failing to address the known risk posed by dry grass and high winds.

But Kasdan’s suit goes further. It also alleges Kamehameha Schools and the other landowners were engaged in an activity so dangerous – letting grass grow wild on their land — that the plaintiffs don’t have to prove the landowners were negligent. In other words, the argument goes, the defendants should be held liable even if they did everything possible to mitigate the risks posed by having large fields of grass.

“At the time the fire(s) ignited, and as they continued to spread, Defendants were engaged in an inherently dangerous activity of allowing large amounts of dry flammable grass on their property (and/or failing to maintain safe amounts thereof), which exceeded the capacity of any firebreaks or other defensive measures that may have been present,” the suit says.

Doctrine Was First Applied in Hawaii In 1958

By using “inherently dangerous activity,” the suit invokes a legal doctrine that dates back to England in the late 1800s. After a landowner’s newly built reservoir burst and flooded a neighbor’s mine, the court ruled it didn’t matter whether the reservoir owner had acted negligently. He was strictly liable for the damage to the mine.

The Supreme Court of the Territory of Hawaii first applied the doctrine here in 1958, when blasting conducted by Hawaiian Dredging Co. for a street expansion in Aina Haina damaged a new home. Justice Ingram Stainback wrote that blasting was such an inherently dangerous activity that Hawaiian Dredging could be held liable regardless of whether it was negligent. 

“Modern law is developing a policy of imposing liability without regard to ‘fault,’ particularly in cases where the defendant’s activity is an unusual one involving abnormal danger to others, even though it is carried on with all possible precautions,” Stainback wrote. 

Kasdan isn’t the first plaintiff’s lawyer to rely on the principle, which often applies to damages caused by things like hazardous chemicals and undomesticated animals. Honolulu trial lawyer Jim Bickerton was the first to raise the “inherently dangerous activity” allegation in a suit for the estate of Rebecca Rans, who was killed in the fires. Bickerton alleges landowners like Kamehameha Schools and the state of Hawaii were “engaged in an inherently dangerous activity of maintaining large amounts of dry flammable grass on their property that exceeded the capacity of any firebreaks or other defensive measures that may have been present.”

And it’s not just landowners growing grass. 

Bickerton alleges Hawaiian Electric Industries and its subsidiaries also were engaging in something analogous to storing radioactive waste by “delivering electrical energy through grasslands adjacent to residential areas in the presence of high winds.” That, too, was an “inherently dangerous activity,” the suit asserts 

In an interview, Kasdan stressed that a homeowner wouldn’t be engaging in an inherently dangerous activity simply by letting the grass in the property’s yard get out of control. It makes a difference that the large landowners on Maui owned vast acreage where fires could build, fed by thick grass. 

“That’s what takes it over the top,” he said.