12-06-2012, 06:59 PM
Carol's scenario is more likely to lead to a successful judgment. If there was a serious risk of harm to the renter of a vacation home in that area, if the homeowner was aware of that serious risk, and if the materials provided to the renter stated that the visitor would enjoy snorkeling in a "pristine" pond, and if that visitor suffered damages (medical bills, etc) as a result, it might be actionable. Of course, there are a multitude of possible defenses: 1) You were sick anyway, 2) You took also took a dip in that warm pond near Pohoiki, 3) There is no showing that you relied on these representations, because you were reluctant to go in anyway, since you are afraid of water, but your husband grabbed you by the hand and insisted..... and, of course, whether there was, in fact, a serious risk of harm would be debated.
Like Rat Lung Disease, we may not have good statistics on the actual number of persons harmed by entry at the tidepools. I suspect it is very low though, and I think that eating local lettuce is MUCH more dangerous than going in the Wai 'Opae tidepools. I would happily jump in there and do, but I will not eat any lettuce picked from your garden, thank you.
As to liability of the homeowners to those swimming in the pond, I think the difficulty could be in establishing that a given homeowner had a duty to protect those in the water. This is usually called a "duty of care". Whether there is a duty of care is dependent upon a multitude of factors, including the foreseeability of harm and the cost of the alternatives. Here, proving that a given homeowner harmed a particular plaintiff would be quite difficult, in part for the reasons discussed above. I mean, whose stuff got into your wound anyway? Did you pick it up somewhere else? More likely, you would be suing everyone whose effluent system is not optimal. But even then, you must show (and it would be your burden) that they had a duty of care toward you in the first place, or your case will be thrown out. So far in this discussion, I have seen no mention of a particular regulation or law that prohibits them from doing this or imposes upon them a duty to retrofit their systems, although we know it desirable that they do so. Perhaps I missed it, in which case, I would welcome having it pointed out to me. After all, I am retired and prefer to do other things now. Exhibit 1 for the defense might be the County signing off on an effluent system that dumps untreated waste into the sanctuary.
And therein lies the dilemma. We might be angry that the homeowners did't voluntarily decide to clean up the tidepools by installing expensive new sewage systems, but perhaps that anger is misplaced. We now know, with the benefit of hindsight, that such systems should never have been permitted in the first place.
The area is now a sanctuary and tourists are encouraged to visit, and they do in greater numbers than I have ever seen. I can't pretend to be familiar with every law affecting this area, and my ruminations above should be disregarded in their entirety as the ravings of a crazy cat lady, except I don't have a cat and am no lady. If you are pondering legal action, consult with a licensed Hawai'i attorney, and not some guy on the internet.
However, my guess is that only government can solve this problem. Litigation against the homeowners is likely to be unavailing, not to mention a little snotty since they have voluntarily done quite a bit to improve the experience for visitors (thanks for the porta-potty!). Like the dust problem in HPP, this condition was preexisting, and predated the creation of the sanctuary. Not only was it preexisting, it was EXPLICITLY SANCTIONED by the government.
The best solution may be to contact Ilagan and put this on his radar, assuming he has a radar screen, and press for a governmental solution, such as gradual condemnation of properties that contribute to the problem. Generally speaking, if you impose a law or regulation that, in effect, deprives a person of their property, that person is entitled to just compensation. Not every imposition of a regulation constitutes "a taking" though. Many nuances there. And, of course, protecting your rights in the first place can be costly and, as Carol pointed out, justice delayed is justice denied. These things can take time to work through the system. Cost/risk/benefit analysis there. Anyway, let's get to work on a governmental solution. Hopefully someone with big ears is paying attention.
It's Wai 'Opae or Waiopae. Not Wai Opea. It matters. Two completely different pronunciations. Pah-ay versus pay-yuh.
Like Rat Lung Disease, we may not have good statistics on the actual number of persons harmed by entry at the tidepools. I suspect it is very low though, and I think that eating local lettuce is MUCH more dangerous than going in the Wai 'Opae tidepools. I would happily jump in there and do, but I will not eat any lettuce picked from your garden, thank you.
As to liability of the homeowners to those swimming in the pond, I think the difficulty could be in establishing that a given homeowner had a duty to protect those in the water. This is usually called a "duty of care". Whether there is a duty of care is dependent upon a multitude of factors, including the foreseeability of harm and the cost of the alternatives. Here, proving that a given homeowner harmed a particular plaintiff would be quite difficult, in part for the reasons discussed above. I mean, whose stuff got into your wound anyway? Did you pick it up somewhere else? More likely, you would be suing everyone whose effluent system is not optimal. But even then, you must show (and it would be your burden) that they had a duty of care toward you in the first place, or your case will be thrown out. So far in this discussion, I have seen no mention of a particular regulation or law that prohibits them from doing this or imposes upon them a duty to retrofit their systems, although we know it desirable that they do so. Perhaps I missed it, in which case, I would welcome having it pointed out to me. After all, I am retired and prefer to do other things now. Exhibit 1 for the defense might be the County signing off on an effluent system that dumps untreated waste into the sanctuary.
And therein lies the dilemma. We might be angry that the homeowners did't voluntarily decide to clean up the tidepools by installing expensive new sewage systems, but perhaps that anger is misplaced. We now know, with the benefit of hindsight, that such systems should never have been permitted in the first place.
The area is now a sanctuary and tourists are encouraged to visit, and they do in greater numbers than I have ever seen. I can't pretend to be familiar with every law affecting this area, and my ruminations above should be disregarded in their entirety as the ravings of a crazy cat lady, except I don't have a cat and am no lady. If you are pondering legal action, consult with a licensed Hawai'i attorney, and not some guy on the internet.
However, my guess is that only government can solve this problem. Litigation against the homeowners is likely to be unavailing, not to mention a little snotty since they have voluntarily done quite a bit to improve the experience for visitors (thanks for the porta-potty!). Like the dust problem in HPP, this condition was preexisting, and predated the creation of the sanctuary. Not only was it preexisting, it was EXPLICITLY SANCTIONED by the government.
The best solution may be to contact Ilagan and put this on his radar, assuming he has a radar screen, and press for a governmental solution, such as gradual condemnation of properties that contribute to the problem. Generally speaking, if you impose a law or regulation that, in effect, deprives a person of their property, that person is entitled to just compensation. Not every imposition of a regulation constitutes "a taking" though. Many nuances there. And, of course, protecting your rights in the first place can be costly and, as Carol pointed out, justice delayed is justice denied. These things can take time to work through the system. Cost/risk/benefit analysis there. Anyway, let's get to work on a governmental solution. Hopefully someone with big ears is paying attention.
It's Wai 'Opae or Waiopae. Not Wai Opea. It matters. Two completely different pronunciations. Pah-ay versus pay-yuh.