Legal Issues With Full Face Snorkels

Public awareness of the dangers of full-face snorkels is increasing and tour operators in Hawaii are increasingly banning their use due to safety concerns.  A State of Hawaii Advisory Committee is investigating the link between drowning deaths and the full-face masks and Civil Beat recently published another article with additional information.  It has now published two stories, one in 2018 and one in 2019. 

 

Many snorkelers find the masks difficult to remove which can become dangerous when filled with water.  There have also been concerns about carbon dioxide build-up due to dead-space ventilation in the masks causing users to become light-headed.  Disorientation combined with potentially rough water and the exertion of swimming could lead to a drowning.  

There is some information indicating that the masks designed by Ocean Reef, one of the original manufacturers of the full-face masks, function properly.  However, some consumers may have purchased cheaper masks online with a similar, but defective, design.  Full-face mask designs are not new and have actually been around for about seventy years.  Their popularity has increased recently though, particularly in Hawaii, with increased tourism, travel and interest in exploring the ocean.  

Visitors to Maui are often surprised by the size of the water and the effort it takes to snorkel in relatively calm seas.  Any sizable chop on the water or a strong current often leads to swimmers getting into trouble.  Even strong swimmers sometimes have difficulty getting back to shore. 

While most snorkelers stay on the surface, it's not uncommon for some to dive into the water to reach the bottom or to investigate an interesting coral or fish.  When diving under water, the full-face mask design is inferior to the traditional style with a mask that only covers the eyes and nose.  The hard cover of a full-face design does not allow users to equalize the pressure in their nose and ears, causing severe discomfort only a few feet below the surface.  Additionally, when the snorkel tube becomes filled with water from diving or a wave washing water into it, users may not be familiar with how to clear the tube which can cause the inhalation of water. 

As the number of drownings increases in Hawaii, a number of deaths have been associated with full-face snorkels.  Specific evidence in unattended drownings is difficult to find since there are usually few witnesses.  However, it is possible that a product liability lawsuit will be filed claiming that the products are defective. 

A successful product liability lawsuit must prove that the product did not meet the ordinary expectations of the consumer.  Tying a manufacturer's negligence to a death or injury can be challenging.  However, drowning is certainly not an ordinarily expected consequence of buying and using a full-face snorkel mask. 
 
If you believe a personal injury or wrongful death was caused by negligence, call our office today for a consultation. We handle personal injury, negligence and wrongful death matters.

You Must Be Alert Driving on Maui

Maui has a large amount of traffic on its roads.  In addition to residents of our island, there are about three million visitors to Maui each year.  A significant number of those visitors rent vehicles to see the scenic beauty of the island making Maui is one of the busiest car rental ports in the nation.  Despite the recent airport expansion enabling rental car companies to park vehicles closer to airport terminals, the Maui rental market has already outgrown the expansion.  Rental companies park thousands of vehicles on vacant lots close to the airport and shuttle vehicles to the lot as necessary. 

Drivers distracted by other passengers, the ocean views or cell phones can cause accidents and despite the beautiful vistas, Maui's roads require the full attention of drivers.  The Hana Highway is narrow in places and, even though the road is maintained often, the forces of nature make the job a never-ending task.  Traffic is almost always heavy on the road to Lahaina and Kaanapali. 

Just this week, a motorcycle went over a guardrail on the Honoapiilani Highway, there was a fatal vehicle accident in Kahului and a landslide near Kipahulu.  These accidents demonstrate the need for full attention.  Already, the fatality rate for vehicle accidents on Maui is significantly higher this year than last.  (33% higher.)

Please remember to drive safely and take your time.

If you or a loved one have been in an accident, call our office for a free consultation.  We may be able to help you recover compensation for negligence, a wrongful death situation or other personal injury.

Boating Accidents and Wrongful Death Lawsuits

The accident that occurred on the dive boat, Conception, in California recently has generated substantial attention due to the severity of the fire and the terrible loss of life.  Thirty-four people died when the boat caught on fire and the passengers were trapped inside.  The exact cause of the fire and accident is under investigation.

Cognizant of potential personal injury liability, the owners of the dive boat have filed a lawsuit in federal court stating that they used reasonable care and that the ship was seaworthy.  The lawsuit is an attempt to preempt and limit the owner's liability.  The strategy is based upon maritime law dating to 1851 that requires victims to respond to the lawsuit within a specified amount of time or else relinquish their claim.  The method has been used a number of times before in prominent maritime accidents and has been very effective at limiting liability.

Typically a personal injury lawsuit must be brought within two years in the state of Hawaii.  Hawaii Revised Statute §657-7.  The same two-year time limit applies in California as well.  Other states vary in their and time limits. The lawsuit was widely seen as being in poor taste since the investigation is ongoing and the families are still mourning their loved ones.

If you've been involved in an accident and have been injured, contact an experienced attorney today to protect your rights. 

Brain Injury and the NFL

Last year the National Football League settled a lawsuit filed by thousands of former football players.  Maui Law - NFL Brain Injury Settlement.  Concern and awareness has been increasing the last few years of repetitive head trauma caused by the hard impacts football players are subjected to. 

Just this week, a prominent NFL rookie made a choice to retire early from the sport of football citing his concern over possible neurological trauma.  Even seemingly minor repetitive concussions and brain injuries have been associated with permanent negative medical problems later in life such as memory loss, dementia and other neurodegenerative disease. 

County of Maui and State of Hawaii Liability

Civil liability of a governmental entity such as the County of Maui can be a complicated issue.  Governmental entities often attempt to limit their own liability by enacting legislation stating specifically saying they are not liable for certain categories of decisions.  Common exclusions are limited liability for planning decisions and discretionary functions.  An example of this in action is the Hawaii Revised Statute, HRS §662-19 which excludes public entities and employees from liability for injuries to someone using a public skateboard park.

Even though there can be exclusions for recovery from a governmental entity or a county, governmental bodies can still be liable for injuries.  State and County liability is often modeled after the Federal Tort Claims Act which allows recovery against the government for personal injury, wrongful death and property damage caused by negligence of a government employee.

This theory applies to the State of Hawaii and County of Maui also.  There have been successful lawsuits and settlements obtained from the County and State due to negligence.  Not all lawsuits against the County or State are successful.  However, many different suits have been filed.

•  In 2010 a woman sued the Maui Police Department for extortion and theft. 
•  In 2012, a golfer at the Waiehu Golf Course sued Maui County for negligence after he was attacked and injured by a goose on the greens.  
•  Recent lawsuits have also claimed County negligence in not properly maintaining roads which can cause vehicle accidents. 

Aircraft Accidents in Hawaii

The Hawaiian island are rich with natural beauty.  However, much of the terrain is rugged and remote and can cause difficulties with rescue when an accident happens.  Aircraft accidents in Hawaii are no exception.  Aircraft accidents happen frequently sometimes causing injuries and fatalities.

Aircraft accidents can be the result of many different factors including pilot error, mechanical failure or weather. 

By their very nature, airplane and helicopter accidents cause a tremendous amount of publicity and can also be very stressful for victims and their family members.  If you have been involved in an aircraft accident, contact an experienced attorney today to protect your rights. 
 Here is an list of select recent aircraft accidents in Hawaii. 

January 16, 2015.  Cessna 172N lost engine power and crashed into remote Halawa Valley on the island of Molokai.  Injuries but all occupants survived. 

September 24, 2014.  Piper PA25-260.  This type of aircraft is commonly used for agriculture or towing other planes such as gliders.  In this situation, the aircraft ran out of fuel and crash-landed into the ocean surf near the shore on the island of Oahu. No injuries. 

September 21, 2014.  Robinson Helicopter R44.  The helicopter sustained a hard landing on Oahu in a quartering tailwind.  There was substantial damage to the aircraft.  No injuries. 

September 13, 2014.  Eurocopter AS 350 B2.  Maui, Hawaii.  The helicopter's tail rotor struck an auxiliary power cart that was close to the aircraft causing substantial damage to the tail boom and rotor.  No injuries were reported. 

The remote Halawa Valley in Maui County, the island of Molokai where a recent airplane crash occurred.  

Compensatory and Punitive Damages in a Personal Injury Case

If you have been in an accident, you may be able to receive compensation for your damages from the person who caused you harm.  There are two types of damages you may be able to collect in a personal injury case: compensatory and punitive.

       Compensatory Damages
             -Damages designed to compensate you for your specific injury and loss.  
                 1.  Economic Damages
                       -Also known as Special Damages in a personal injury case. 
                       -Tangible damages whose dollar amount can be concretely measured.
                       -Medical expenses, damage to motor vehicle, property damage,
                        loss of earnings, etc.

                  2. Non-Economic Damages
                       -Also known as General Damages in a personal injury case. 
                       -Intangible damages that can not be quantified.
                       -Pain and suffering, emotional harm, disfigurement, loss of companionship,
                        loss of consortium, etc.

            Punitive Damages
                -Damages designed to punish the person responsible for your injury and loss.
                -Used to deter future conduct of both the person responsible and others.
                -Usually limited in Hawaii to nine or ten times the amount of actual damages.
               
You should be aware that references to damages may change depending on the type of lawsuit you have.  For example, compensatory damages in a tort case may have a different definition than in a contract case.  To determine the type and amount of damages that you are entitled to for your accident, seek the advice of a personal injury lawyer. 

Access to Jaws Surf Break at Peahi

Every winter the North Pacific ocean brews large storms that create huge swells.  Many of the swells eventually reach Maui's north shore and the underwater topography in certain places along the coast create huge waves.  The biggest waves typically occur near Peahi which is also known as Jaws. 

For decades, Jaws was a place only locals familiar with big wave surfing knew how to access.  However, Peahi's popularity has increased significantly and every year when the wave "fires off," the parking lot is overflowing with dozens of cars and scores of people. 

Despite the number of people, you should be aware that there is no public access to Jaws.  The road through the jungle to the most popular viewing area is privately owned by Alexander and Baldwin.  The company has generally been a very generous neighbor by not making too many attempts to shut off access to the unmaintained dirt road.  The company recently even cooperated with Red Bull and the County of Maui with plans to organize a big-wave surfing contest. 

If you visit Peahi to watch big-wave surfing, please be careful and be considerate.   The drive from the Hana Highway to the viewing area can easily take an hour due to traffic on the one-lane road that is packed with trucks, motorcycles, dogs and tourists.

Remember that, as with many places on Maui, you are a guest on privately owned land.  Car accidents and injuries are not uncommon due to poor driving conditions and large numbers of people.  Also, if you park irresponsibly along the Hana Highway, you should expect a parking ticket.  Maui Police Department does patrol the area.  

Photo of Jaws by Maui Legal Team Investigator

Personal Injury Lawsuit Statute of Limitations

Every personal injury lawsuit must be filed at the courthouse within a specified period of time.  This time limit is called the statute of limitations.  In Hawaii, the statute of limitations for a personal injury lawsuit is two years.  HRS §657-7.  The statute of limitations applies to many different types of torts involving physical and mental injuries including negligent and intentional infliction of emotional distress. 

If you have been injured it is important to seek medical treatment quickly to limit the physical and mental damage from your injuries.  It is also important to seek legal advice quickly so that you can limit the financial damage from the injuries.  A trusted lawyer can be particularly helpful in the difficult and confusing days immediately after an accident.  A lawyer can protect your financial interests and can negotiate with insurance companies and medical providers to save you money and ensure that you are fully compensated for your loss. 

It is essential not to wait until your statute of limitations is about to expire.  Most personal injury lawsuits are negotiated for months before settlement and most are settled without proceeding to a trial.  Few lawyers will be willing to take your personal injury case if the statute of limitations is about to expire. 

Additionally, severe injuries such as a brain injury may require additional medical evaluation to properly document your claim.  You must leave sufficient time to investigate your claim, negotiate with an insurance provider and seek additional medical care if necessary. 

Puntive Damages in Hawaii

The goal of a personal injury lawsuit is to compensate you for the loss you experienced because of another person's negligence.  After a trial or a settlement, you should be reimbursed for your medical expenses, lost wages and other economic costs that you incurred from your injury. 

Compensation for your non-economic damages such as the pain you experienced from the injury, the suffering you had to endure and the loss of companionship your spouse suffered while you were injured are more difficult to quantify.  The calculation of how much you are entitled to receive will vary with each individual. 

Economic and non-economic damages are called compensatory damages because they are designed to compensate you for your losses.  It is possible, but not guaranteed, that you will receive punitive damages which are designed to punish a defendant in severe cases. 

If the person who injured you was not just negligent but acted maliciously or oppressively you may be able to receive punitive damages.  A jury can consider the economic ability of the defendant and specifically how they acted when injuring you.  In Hawaii, a jury can award punitive damages to a plaintiff but the award amount can not be unconstitutionally high.  As a general rule, punitive damages should not be more than nine times compensatory damages. 

Maui Recreational Injuries

Maui is spectacular and beautiful.  However, beautiful does not necessarily mean safe.  Unfortunately, sometimes visitors to our wonderful island are injured when precautions are not taken and the ocean acts unpredictably.  The landscape can be unforgiving and can easily injure the unsuspecting.

Recently there have been a number of drownings near Black Rock on Kaanapali Beach.  Black Rock is a popular snorkeling area because of the warm water, excellent snorkeling and proximity to Kaanapali Beach which has been called one of the best beaches in the world.  Please use caution when swimming in this area and any place in the ocean while on Maui.  Ocean currents can be strong and unpredictable and can easily tire out swimmers.

Maui is a beautiful paradise but please use caution and common sense while enjoying your stay on the island.

NFL Brain Injury Settlement

The National Football League has settled a lawsuit filed by thousands of former football players.  A federal judge has approved the settlement which has no limit on the amount of money available to pay retired players with potential neuro-cognitive diseases. 

The settlement is extraordinary as it provides neurological exams and monetary settlements for diagnoses of a number of different chronic brain disorders such as Parkinson's, Alzheimer's and early dementia.  The original lawsuit was filed by approximately 5,000 players but all former players are eligible and will have two years to register for the settlement. 

The original settlement amount of $870 million was deemed was deemed to be too small to cover the high medical costs for serious concussions and brain injuries suffered by many football players.  Despite the potentially large payout, some players have said that the settlement will still not completely compensate past players for their injuries. 

Personal Injury News

The news this week contained two interesting cases involving personal injury claims. 

General Motors released a report with the conclusions of an investigation into faulty ignition switches that have caused injuries and deaths.  The report prompted calls for action from members of Congress and consumer advocates and conspiracy theorists.  The auto company fired 15 employees while disputing a claim that the defective ignitions have caused 74 deaths.  GM has now recalled 12.8 million vehicles. 

750 professional football players have sued NFL teams alleging that NFL doctors prescribed painkillers and sleep-aids on game days to mask the pain and the drive the players to perform at a higher level.  Prescriptions for Percodan, Percocet, Toradol and Ambien were among those listed in the lawsuit.  The plaintiff's in the lawsuit are seeking class-action status and have alleged that they have suffered serious long-term health effects such as kidney failure, nerve damage and chronic muscle problems. 

General Motors Expands Vehicle Recall

General Motors almost doubled the number of vehicles subject to recall this week bringing the total to 5 million.  The latest recall is divided into four different actions and involve issues with seat belts, a shifting cable, a fuse box and air bag. 

Although none of latest problems are linked to fatalities, GM could still be subject to possible personal injury lawsuits as product liability claims. 

GM has taken intense criticism because of the manner in which it handled the first recall in 2013.  Federal safety regulators claimed that GM was slow to initiate a recall.  GM and the National Highway Traffic Safety Administration reached a settlement last week that provides for a $35 million penalty.  

3 Considerations for a Winning Personal Injury Lawsuit

If someone has accidentally or intentionally injured you or a family member you may have a personal injury claim.  You should always have your situation evaluated by a personal injury lawyer.  However, there are three main factors to consider before filing a lawsuit: 

1.  Do you have a valid lawsuit?
Personal injury lawsuits are legally referred to as tort claims.  A tort is a civil wrong that causes you loss or injury.  Injury can occur in a variety of ways and usually involves physical injury to yourself.  In certain circumstances, you may also be able to sue for mental trauma or injury to a family member.  There is rarely a valid claim for loss or injury to a pet or animal companion. 

2. Who is at fault?
Your injury must have been caused by someone else.  If the injury was your fault, you cannot force someone else to pay for your damages.  You may still have a case if it is unclear who caused your injury or if you are responsible for only part of the damages. 

3.  Is your judgment collectible? 
Even if your situation meets all the requirements for a winning lawsuit, you must consider whether you will be able to collect compensation.  Initiating a lawsuit and obtaining a judgment will be of no use if the person who caused the accident does not have any money or assets.  If the defendant has nothing to collect and no insurance, a lawsuit could be a waste of time and effort. 

 Here are some examples of common personal injury lawsuits:

- Injuries incurred from car accidents caused by drunk drivers, distracted drivers texting or talking on cell phones or simply drivers who are negligently not paying attention. 

- Defective product lawsuits such as defective vehicles, tires, appliances or other products.  A product may have been made defectively such as an ignition key that fails to shut the car off or a product that is designed incorrectly such as a swimming pool filtration system that traps a swimmer at the bottom of the pool.  

- Wrongful death lawsuits from airplane crashes, boating accidents or train crashes. 

- Injuries from dog bites.  Pet owners are often liable for injuries caused by their animals. 

- Lawsuits against drug companies who market and sell dangerous pharmaceutical products. 

Tort Liability for Diabetes Drug Actos

This week a federal jury decided that drug companies Takeda Pharmaceutical and Eli Lilly should pay $9 billion dollars in punitive damages for hiding the significant risk of cancer to patients taking Actos.  Actos is sometimes prescribed to help control diabetes and the jury found that Takeda knew the drug had serious side effects including heart failure and bladder cancer. The drug has been a huge income producer for Takeda with sales of $397 billion. 

For more information check out this story in the Wall Street Journal.  Actos Tort Liability

General Motors and Personal Injury Lawsuits

The CEO of General Motors, Mary Barra, has been testifying before a House Subcommittee regarding GM's ignition switch recall.  Members of Congress are interested to find out why it took GM so long to initiate a recall of affected vehicles.

The years of the vehicles in question were initially designated as 2005 to 2007.  However, GM later expanded the recall to include a much wider range of vehicles, models and years.  In certain circumstances, including a roll-over accident, the key may turn the vehicle ignition out of the "run" position.  In this instance, the air bags of the car may not deploy causing personal injury or death.  

Although vehicle recalls occur frequently, this particular recall is interesting because of GM's delayed reaction time when identifying the issue and reporting it to the federal government.  Also, GM emerged from bankruptcy in July of 2009.  GM is legally immune to product liability lawsuits before this time. 

GM is now under pressure from Congress to pay for many of the claims it may hold immunity to.  Underlying immunity is also being challenged in a number of personal injury lawsuits.  Also, the Justice Department is investigating whether GM committed bankruptcy fraud by not disclosing the vehicle defects when it went through bankruptcy.

For more information take a look at the U.S. House of Representatives Energy and Commerce Committee website.  U.S. House of Representatives Energy and Commerce Committee

Personal Injury Claims

Personal injury claims in Hawaii encompass a tremendous variety of incidents including boating and pool accidents, slip and fall injuries, negligence involving dog attacks and car accidents. 

Even though injuries vary widely, methods to preserve your personal injury claim are similar no matter how your accident occurred.  The following steps will help ensure that you are compensated for your losses and medical expenses.

The first step, and your highest priority after an accident, is to obtain medical treatment.  See a doctor if you have not already and thoroughly explain your injury.  Follow through with treatment and be sure you medically stable before you proceed with step two. 

Gathering information is the second step.  Take pictures, collect contact information from witnesses and talk to other people involved in the accident including rescuers and onlookers.  Save all medical information as well, including bills and copies of prescriptions.  Keep a journal through your treatment to make sure you remember everything. 

The third step is to make an appointment with a personal injury lawyer in your area to preserve your legal rights.  With every personal injury claim there is a time limit to file a lawsuit.  Do not wait until the time limit has almost expired. See an attorney as soon as possible to help investigate your case, evaluate how much your case is worth and to write a demand letter to the person or company responsible. 

Whiplash Injuries in Car Accidents - Personal Injury

The modern term for a whiplash injury is cervical acceleration-deceleration (CAD).  It may also be described as a cervical strain or hyperextension injury.  This type of injury is typically seen as the result of a rear collision and is the most commonly diagnosed injury after a car accident. 

A CAD results from the sudden acceleration and deceleration of the head and neck immediately after impact.  The injury may occur to both the soft tissue of the neck and also the spine.  CAD injuries are common but are sometimes overlooked or mistreated because of a misunderstanding of the injury. 

Common symptoms of a CAD injury include headache, dizziness, jaw pain, arm pain, ringing ears, back pain, shoulder pain and fatigue.  It is important to seek medical treatment as soon as possible after an accident to ensure that you receive a proper diagnosis and treatment. 

Describe your symptoms and give your doctor a detailed account of your accident including the motion of your head and neck. A doctor may take x-rays of your neck and prescribe a cervical collar to prevent further injury.  You may also receive physical therapy and instructions for gentle motion exercises to support the healing process. 

If you have been injured in a car accident and believe you have a CAD injury, see your doctor today.  Call a personal injury lawyer soon after to make sure that you are compensated for your injuries. 

Personal Injury - Traffic Accidents on Maui

Historically, national statistics on traffic accidents have shown a decline in fatalities over the last several years.  The national rate averages to 12.07 fatalities per 100,000 people according to the National Highway Traffic Safety Administration (NHTSA).  National Traffic Statistics

Maui County's traffic fatality rate is slightly higher than the national average at 12.9 according to NHTSA records.  Maui County Traffic Statistics

Available traffic fatality statistics for Maui include many categories.  The following chart visually demonstrates one category: single vehicle crash fatalities in Maui County.  The five years shown on the chart average to 12.8 fatalities per 100,000 people.  Complete information for 2013 is not yet available but preliminary data indicate that traffic fatalities may have declined in 2013. 

If you or your family have experienced a loss due to a traffic accident, call our office today for a free consultation to see if we can help you recover compensation.