MAKING SENSE OF THE MAUI WILDFIRE LAWSUITS
Over this past week, legal advertisements have become ubiquitous across social media platforms and television, urging those affected by the Maui wildfires – whether through injury, loss of loved ones, businesses, or property – to seek assistance. It was only a matter of time before legal professionals became involved. Attorneys often bear the brunt of skepticism, labeled as money-driven and insensitive to tragedies. While this reputation isn't always undeserved, it's essential to recognize that attorneys will play a pivotal role in navigating the complexities of this disaster.
At first glance, a preliminary understanding emerges regarding the likely sequence of events. Initial reports appear to lay blame squarely on Hawaiian Electric and Maui Electric. Allegations point toward their failure to deactivate power amidst a hurricane and secure infrastructure – issues linked to wildfires in other states. Reports suggest that fallen power lines ignited the initial sparks, cascading into the wildfires. Alternatively, some sources attribute the cause to "fuel" left in the form of discarded green waste, a remnant of sugar cane production cessation by property owners like Alexander & Baldwin and Mahi Pono. These accounts argue that this dry green waste became a combustible tinderbox. Prominent fire experts, including Clay Trauernicht from the University of Hawaii, have long emphasized the necessity of fuel management and preventive measures against wildfires. Yet, these recommendations seem not to have been sufficiently implemented. Consequently, some voices point toward potential liability of the County of Maui for not mandating property owners to address this hazardous condition. Should land management practices – the failure to address the accumulation of flammable grasses and invasive species – be shown to amplify the intensity and spread of wildfires, those responsible for land management could potentially face liability for neglecting fire risks.
Others shift the spotlight toward the State of Hawaii and its Public Utility Commission, alleging inadequate regulation of HECO and insufficient wildfire preparedness. Although an emergency management plan acknowledged other hazards, it downplayed the wildfire risk. The effectiveness of emergency response mechanisms, including malfunctioning sirens and an ill-equipped firefighting force, raises questions about the state's overall preparedness. If evidence emerges to indicate that county and state authorities were aware of the escalating threat of wildfires due to changing climate conditions and yet failed to prepare adequately and implement preventative measures, they could potentially be held liable for negligence in disaster planning.
Yet another viewpoint holds Hawaii Emergency Services Administration (HI-EMA) and Maui County Emergency Management Agency accountable for not activating outdoor warning sirens during the wildfires. This lack of proper communication and timely warnings has garnered scrutiny and criticism.
However, the spectrum of liability extends beyond these focal points. Indeed, years of litigation will unfold, leaving no party untouched. Additional potential areas of liability encompass:
1. **Communication Infrastructure Failure:** Telecommunication companies could potentially be liable if their infrastructure fails under hurricane-strength winds, resulting in the failure to effectively deliver emergency alerts to residents' mobile devices.
2. **Resource Allocation and Planning:** State and local government agencies might face potential liability if they inadequately allocate resources or fail to develop comprehensive emergency plans to address communication challenges during wildfire events, thereby jeopardizing public safety.
3. **Inadequate Resource Allocation:** State and local authorities could face potential liability if they fail to allocate sufficient resources toward land management practices, wildfire prevention, and the creation of firebreaks, ultimately failing to mitigate the risk of substantial wildfires.
4. **Unclear Evacuation Protocols:** If the mayor's statements indicating uncertainty about evacuation alarm systems and visitor sheltering suggest inadequate planning and communication, potential liability could arise for not ensuring clear evacuation protocols and public safety measures.
5. **Loss of Life and Identification of Bodies:** Authorities might face potential liability if the process of identifying bodies and notifying families is mishandled, resulting in emotional distress or negligence claims due to the intense fire and challenging recovery process.
As of now, at least three lawsuits have been filed, predominantly centered on property loss claims. While two of these have been initiated as class-action claims, the likelihood of their certification remains slim. Class certification necessitates commonality and typicality among claims. While these claims share the backdrop of tragic wildfires, numerous intervening factors complicate their management as a class, particularly the damages uniquely suffered by each plaintiff.
Four distinct categories of plaintiffs seem to emerge: those who lost loved ones, those who survived but sustained injuries, those who lost property and cherished possessions, and those who lost their businesses. This breakdown doesn't discount the existence of other valid claims. It's more probable that this case will develop into a mass tort. Such actions typically begin as individual lawsuits, which, to streamline litigation and conserve judicial resources, are consolidated into a single mass tort lawsuit. In more extensive cases, these lawsuits might even be amalgamated across different jurisdictions into multidistrict litigation, as long as the shared act of harm is attributable to the same defendants.
However, each plaintiff remains a distinct party to the case, retaining individual rights. Despite this consolidation, individuals maintain the autonomy to choose their attorney while collaborating within the framework of multiple plaintiffs in the same case.
In contrast to class-action lawsuits, mass tort actions don't always meet the criteria for uniformity. They can still be viable when differences among plaintiffs' circumstances might preclude a class action. Though protracted, mass tort actions often culminate in financial settlements. These proceedings differ from class actions in that each plaintiff retains the right to decline the offered settlement.
Author’s note: DiPasquale & Summers LLP currently represents several likely plaintiffs and will be filing individual claims in the coming weeks.
DIPASQUALE & SUMMERS, LLP
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