Hawaii County is requesting dismissal of a lawsuit seeking monetary damages from the Hawaii Police Department and an officer who was on duty and at the wheel of the blue-and-white cruiser that fatally struck a 16-year-old boy.
The reply brief was filed last week by Deputy Corporation Counsel Justin Lee, representing HPD and Officer Nicole Kanaka‘ole-Ioane, who was named in the civil suit by the family of Samuel Mwarey as the driver of the 2008 Ford Crown Victoria four-door sedan that struck the teen.
The brief filed Tuesday asks that the complaint be dismissed with prejudice, which means the plaintiffs would not be allowed to refile the suit.
Police say Mwarey was on the roadway in a poorly lit area of Kapiolani Street in Hilo between the YMCA and Hawaii Care Choices, not in a pedestrian crosswalk, wearing dark clothing on a rainy night when he was struck at about 10:24 p.m. on Jan. 5 by the car driven by Kanaka‘ole-Ioane, an 18-year veteran of the department.
Mwarey died at 12:16 a.m. Jan. 8 at Hilo Benioff Medical Center.
An internal investigation by police found Kanaka‘ole- Ioane had no alcohol or drugs in her system.
In addition, a traffic collision reconstruction done by an independent contractor found the officer wasn’t speeding or negligent in not seeing the Hilo High School junior in time to keep from striking him with the vehicle, HPD Chief Ben Moszkowicz recently told the Hawaii Tribune-Herald.
Kanaka‘ole-Ioane has returned to duty, the chief said.
According to Moszkowicz, Mwarey had a blood-alcohol content of 0.19%, more than two times the legal threshold for intoxication, plus cannabinoids in his system, an indication he had ingested marijuana or a cannabis concentrate sometime before the accident.
The county’s brief denies the lawsuit’s allegation that Mwarey was in the bicycle lane on his skateboard and was struck “suddenly and without warning” by Kanaka‘ole-Ioane. The brief also denies the plaintiff’s allegations that Kanaka‘ole- Ioane was negligent and/or inattentive while driving the police cruiser.
According to the brief, Mwarey’s family is barred from recovering damages from the county because the incident was the result of the teenager’s actions “or an unavoidable accident.”
“The acts and/or admissions of others, not including county defendants, were the sole cause of any alleged injuries sustained by the plaintiffs,” the document states.
In a statement released with the lawsuit, the family’s attorney, Hannah McKee, called the police assertion that a collision was unavoidable “a lie” and said details being reported about the accident were “not accurate.”
