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County denies culpability in blowhole incident

By Michael Tsai

LAST UPDATED: 11:55 a.m. HST, Jul 15, 2011

The disappearance of a Northern California man at Maui's popular Nakalele Point blowhole on Saturday has fanned fresh debate over the responsibility of visitors to account for their own safety when viewing Hawaii's natural attractions versus landowners' legal responsibility to ensure that visitors are fully aware of the dangers they face.

Witnesses said David Potts, 44, of San Anselmo, Calif., was dancing around the blowhole when a large wave struck him from behind and knocked him into the hole. Maui Fire Department search and rescue personnel conducted a three-day land, sea and air search of the area but found no sign of Potts.

On Thursday, Maui County expressed its sympathy to Potts' family even as it distanced itself from any potential liability.

In a news release the county noted that neither the Maui Visitors Bureau nor Maui County had promoted the area as an attraction, and provided an excuse for the lack of warning signs in the area.

"As we understand, the location may be privately owned and therefore, the County of Maui is unable to provide an signs or warnings of the obvious dangers the blowhole may present," the release stated.

The only apparent warning in the area is a hand-painted sign that reads, "Blowhole: Park and walk at your own risk" attached to a rock at the Nakalele Point parking lot.

According to the release, search teams returned to the site Thursday and noticed that visitors "continued to gather around the blowhole area, despite being told that someone disappeared in that same location a few days ago."

Cases of visitors being seriously injured or killed while enjoying the state's natural attractions are relatively few given the millions each year who visit Hawaii's active lava flows, coastal tide pools and hundreds of miles of public trails. But they do occur frequently enough to keep first responders busy.

Just one day after Potts' accident, Paul Tam Mai, 22, of Sunnyvale, Calif., was killed when a wave knocked him off a rocky cliff in the Hawaiian Paradise Park subdivision and swept him 100 yards offshore.

Though litigation arising from such incidents is infrequent, recent history indicates that landowners could be legally vulnerable if they have not adequately installed and maintained signs notifying the public of potential hazards.

Landowners' liability for natural hazards was better defined in the wake of the Mother's Day rockslide in 1999 at Sacred Falls on Oahu, which killed eight people and injured 50 others. The families of four of the people who died and 19 others who were injured filed suit agains the state, and in a 2002 ruling, Circuit Judge Dexter Del Rosario said the state did not adequately warn visitors that rocks above the trail constituted a potentially fatal hazard.

The state appealed the decision before damages could be determined, and in the interim the state Legislature passed a bill that recognized the posting of signs as legally adequate warning of dangerous natural conditions and that required regular inspection and maintenance of signs.

The state reached an $8.56 million settlement with the plaintiffs in December 2003.

Though the legislation provided the courts a narrower means of determining liability, it also put landowners on notice that they needed to be proactive in their efforts to warn visitors of potential dangers.

In 2003, 41-year-old Kevin Oakley of Sun Valley, Calif., drowned at Maui's Pools of Oheo (popularly known as Seven Sacred Pools) after rescuing his 7-year-old son, who had been swept away by a strong current. He was the fourth person to drown in the vicinity of the pools over a two-year period.

Oakley's family received a $2 million settlement from the federal government, which oversees Haleakala National Park, where the pools are located. The settlement also called for the National Park Service to monitor stream flows and install safety equipment at the pools.

In some cases, what constitutes adequate warning is not quite clear. In 2002, 18-year-old Daniel Dick of Sylmar, Calif., was killed when he reportedly straddled the explosive water spout at the Halona Blowhole and was lifted three to five feet in the air and dropped headfirst onto a rocky crevice. His body was recovered the next day.

A warning sign was posted at the blowhole parking lot, but Dick had walked to the site along the shoreline from Sandy Beach, which was not equipped with signage.

The case was eventually settled, with the city agreeing to post and maintain another warning sign closer to the blowhole. Dick's family's suggestion that a grate be installed over the hole was not adopted, and the family received no financial compensation in the settlement.

In 2006, 29-year-old Paula Ramirez and 35-year-old Elizabeth Brem, both of California, died when they apparently walked off of a steep cliff near Opaekaa Falls on Kauai.

The women apparently followed the right side of a split trail and fell from an area of the cliff hidden by vegetation. There are no public trails leading to the falls; however, some guidebooks and Internet hiking sites list the split trail as an unofficial hike.

At the time of the accident, there was a sign on the left side of the trail advising people to keep out; the sign did not address the right side of the trail, nor was there any other signage on the right side. The families of the women filed suit arguing that the state in essence invited the women to take the right side of the trail and did not warn them of the potential hazard (despite earlier reports of dangerous conditions).

In April, Kauai Circuit Judge Kathleen Watanabe agreed, ruling that the state was fully culpable for the women's deaths. Damages will be determined at a separate proceeding.

Cindy Orlando, superintendent of Hawaii Volcanoes National Park, said she and her staff devote a great deal of time, energy and consideration to ensuring that the 1.3 million people who visit the park each year are fully aware of the environment they are entering.

"It would be nice to assume that common sense would prevail, but that's not always the case and we have to be aware that our visitors are not in their regular environment and that they need to be made aware of the potential dangers," she said.

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