BY JIM DOOLEY – The state has agreed to pay $15.4 million to settle a civil lawsuit filed by the families of two hikers who fell to their deaths on a Kauai hiking trail in 2006.
The settlement, reached just before a damages trial was to begin next week, must be approved by the Legislature. The state was found at fault last year in the case and the plaintiffs had been seeking $30 million.
The parties told Kauai Circuit Judge Watanabe yesterday that they had reached a settlement, according to court records.
The two hikers, Elizabeth Brem of California and her cousin, Paula Gonzalez, of Colombia, South America, died after they fell 300 feet from a trail leading to Opaeka’a Falls in Waialua River State Park.
Brem, 35, was a securities attorney and partner in one of the nation’s largest law firms, Gibson Dunn & Crutcher.
She was “a superstar,” said Mark Davis, attorney for Brem’s family.
Brem was the mother of two young sons, past senior editor of the Yale Law Review and valedictorian at Barnard College.
$15 million of the settlement goes to Brem’s estate, said Davis.
The figure “is a substantial discount” of the damages being sought, he said.
“The family wanted to put this behind them,” he said.
Some $425,000 goes to the family of Ramirez, who was 29 when she died. Judge Watanabe wrote last year that Ramirez looked upon her older cousin as “a mentor and big sister.”
Teresa Tico, attorney for the mother of Gonzalez, said the young woman “had a fiancé, she was looking forward to getting married and having a family. All that was taken away and her mother has been devastated.”
A teenaged hiker nearly died at the same site on Kauai six months before Brem and Ramirez perished, but park officials failed to close the area or adequately warn visitors of the extreme dangers there, Watanabe ruled last year.
The state failed “to protect or warn Elizabeth Brem and Paula Ramirez against the extreme and hidden dangers it knew existed within the Opaeka’a Falls clearing and the trails originating in that area,” Watanabe ruled last April.
Staff in the Kauai offices of the State Department of Land and Natural Resources had repeatedly notified their superiors that the trail was dangerous to hikers and visitors who frequented the area.
A sign that said “DANGER KEEP OUT HAZARDOUS CONDITIONS” was posted in a clearing off Kuhio Highway where two trails led to the falls, the judge said.
But the sign was posed in front of just one trail, and the other route also posed an extreme danger, the judge found.
The sign “actually made the area more dangerous and had effectively created a trap in which park visitors were likely to be misled into following the right hand trail into the treacherous area,” the judge ruled.
That was what happened on June 29, 2006, when Joshua Linares visited the area with six family members who planned to hike down to the lagoon at the base of the falls.
Linares, who was 16 at the time, testified at last year’s trial that his family saw the warning sign at the left-hand trail.
“They observed the right-hand trail without any sign posted in the entrance and observed that the right-hand trail ‘was very open, very inviting,’” Watanabe wrote, quoting Linares’ trial testimony.
Linares could not see a “precipitous drop-off” because “it was obscured by the dense vegetation,” Watanabe wrote.
“He could not see the valley floor or the falls and he could not see any cliffs. He had no sense of danger,” the judge said.
Linares slipped and fell off the cliff, landing “hurt but alive in a tree on a ledge 200 feet down the cliff,” the decision continued.
Five months later, on Dec. 19, 2006, Brem and Ramirez fell to their deaths at the same location.
The same single warning sign stood at the left-hand trail.
The state was represented by private attorney James Kawashima.
Kawashima’s fees until recently were covered by the state’s liability insurance carrier, but that company recently refused to honor more bills.
The state was told last week that the insurance company “is refusing to defend the state in the (damages) trial, despite, as the state believes, being required to do so under its policy with the state,” according to public records.
The Attorney General’s office then agreed to hire Kawashima directly, paying him $170 per hour.
Davis said the insurance company will still be liable for “a substantial portion” of the settlement.
Last year, the Legislature failed to pass a bill that appropriated funds to pay legal settlements.
New bills to cover those settlements and more recent ones are now pending before lawmakers.
Davis said it is his understanding the Attorney General’s office will seek to add the Kauai settlement to the pending bills.
If the Legislature does not honor the settlement, Davis said, the damages trial will be held on Kauai, exposing the state “to considerably higher potential liabilities.”
Joshua Wisch, spokesman for Attorney General David Louie, had no comment other than to say that an updated list of proposed legal settlements will be submitted to the Legislature Tuesday.