Ala Moana mall knew of rail risk, suit claims

Hawaii’s largest shopping center had been warned about unsafe conditions on its property 11 years before one young man was killed and another severely injured there in 2016, but it chose to do nothing about it, according to a lawsuit filed Wednesday.

Lawyers representing families of Nicholas “Koa” Freitas and Macroy “Macky” Nagato filed a complaint against the owner of Ala Moana Center, Chicago-based GGP Inc.

Freitas died and Nagato suffered a traumatic brain injury when a 30-foot section of rail on the mall’s third-level mauka parking deck gave way. Freitas fell about 30 feet into a basement planter area, and Nagato fell onto a second-­level walkway. The Roosevelt High School graduates were both 21 years old at the time.

“This is one of the more horrendous cases we’ve been involved in,” said Rick Fried of Honolulu personal injury law firm Cronin Fried Sekiya Kekina &Fairbanks.

Fried’s firm filed the suit in state Circuit Court on behalf of Freitas’ father, mother and sister, and Nagato’s wife, father and mother.

Freitas, his sister Alyssa, Nagato and Nagato’s wife, Tiara, were leaning against the railing near the former Pearl Ultra Lounge, out of the way of passing vehicles on Oct. 9, 2016, when the railing gave way. As Freitas fell, Nagato grabbed his hand to save him and also fell, Fried said.

Fried’s firm obtained documents showing an architect and a contractor had alerted GGP four times in 2005 about unsafe railings. At the time, work was underway to convert the former JCPenney department store into smaller retail spaces. This work, the suit said, included removing railings in the area of the accident to make a new connection to stores.

Brian Niitani of construction firm Albert C. Kobayashi Inc. asked GGP in a note, which was attached to the lawsuit, what should be done to a couple of railing posts in one area that were rusted through or close to rusting through, “numerous” railing posts and brackets that had rusted through in another area and a railing that seemed shaky in a third area. These areas were on the mauka parking deck where Freitas and Nagato fell.

“Please advise what needs to be done,” Niitani wrote in May 2005.

An official with Anbe Aruga &Ishizu Architects Inc. also working on the JCPenney redevelopment project said in a June 2005 note to the contractor and copied to GGP construction manager Craig Rank: “We recommend in regards to public safety, to repair all existing railing(s) as noted in this (request for information),” the lawsuit claims.

One diagram from the contractor pointed to the precise area of the “rusty &broken” post or posts on the railing that fell over in the accident.

The lawsuit contends that nothing was done in response to the warnings.

“This amounts almost to a wanton and willful disregard for the safety of the public,” said Wayne Kekina, another attorney on the case.

An Ala Moana representative could not be reached for comment Wednesday.

Following the accident in 2016, Francis Cofran, Ala Moana’s general manager, had said: “The safety and welfare of our customers and employees is a matter that we take very seriously and always address as a priority. Our hearts go out to the families and all those affected by this tragic event.”

Shortly after the accident, city inspectors from the Department of Planning and Permitting found rust and spalling, or crumbling, where the collapsed rail was embedded in concrete, and ordered GGP to make repairs to that area as well as on other railings nearby. GGP estimated the cost of the repair work at $4 million.

Fried called it a relatively simple repair, given that GGP is one of the biggest mall owners in the country, had sold 37.5 percent of Ala Moana for about $1.4 billion in 2015 and completed a roughly $650 million Ewa wing expansion in 2015 and 2016.

Fried said it isn’t possible to accurately estimate financial losses and damages for emotional distress for the Freitas and Nagato families. But he said Nagato’s medical bills are already over $1.5 million.

Fried said Nagato, who was a unionized painter with a nearly 3-year-old daughter, is blind in one eye, has half his vision in the other eye, experiences weakness on the entire left side of his body, can’t stand without a brace and has been learning to read again.

“He is basically wheelchair-bound and requires round-the-clock care,” Fried said.

Freitas was a product merchandiser at Hawaii Foodservice Alliance and had planned to become an air-conditioning contractor. Fried said his parents and sister are devastated.

“All three live with his loss every day,” Fried said.