POSTED: 01:03 p.m. HST, Jun 21, 2013
A wrongful death lawsuit by the family of a New York teen must move forward in Hawaii — where the 15-year-old was swept out to sea during a kayaking expedition — and not in Colorado, where the tour company is based, a federal judge in Honolulu ruled.
U.S. District Court Judge Susan Oki Mollway ruled Thursday that tour company Bold Earth Teen Adventures can't yet appeal her previous decision not to allow the case to move to Colorado. She ruled previously against the company's attempt to dismiss the case because of its release form clause that states any suit or proceeding must be filed in Jefferson County, Colo. She ruled the clause was unenforceable.
It's been nearly a year since Tyler Madoff, of White Plains, N.Y., was swept off the west coast of the Big Island. His family filed a lawsuit in Honolulu claiming tour guides were negligent for leading teenagers to a dangerous area. They were hiking near the Captain Cook monument at Kealakekua Bay when they stopped to rest at a tide pool and large waves washed Madoff away. The teens were led to an area that's out of a state permitted area despite dangerous surf warnings, according to the suit.
The ruling allows the suit to finally move forward in Hawaii, where 43 witnesses are based, including first responders, search-and-rescue personnel, government officials responsible for issuing permits and other tour operators.
"The only connection to Colorado is that (Bold Earth) has an office there. That's it," Susan Karten, a New York lawyer for the Madoffs, said Friday. "Everything is in Hawaii."
An attorney for Bold Earth didn't immediately respond to requests for comment.
Karten said the company attempted an unusual move to seek an appeal to the 9th U.S. Circuit Court of Appeals before a district court conclusion has been reached in the case. Doing so, meant Mollway would have to sign off on the interlocutory appeal and halt the case.
"It's very important for the Madoff family to have this case brought and for the family to get closure," Karten said. "There's never ever been a body recovered and most likely there never will be."