Honolulu Personal Injury Lawyer - Property Owner's Liability (Slip & Fall)

Injured Tourist Airlifted from Hanakapiai Beach On Kauai

Wayne Parsons — Sat, 10 Oct 2009 12:16:11 GMT

Hiking to remote beaches can be risky as a 52-year-old Canadian tourist learned this week. After injuring his legs at Hanakapiai Beach on Kauai, KITV reports that a tourist was rescued and airlifted out by Kauai Rescue. Firefighters, paramedics and a life guard joined in the rescue. The rescue took place on Thursday afternoon.

The injured man was 52 and from Vancouver, Canada. His injuries prevented him from walking out on his own. That trail is not an easy one to navigate. Particularly when it is wet.

Emergency crews treated the man and airlifted him to Princeville Airport, where medics took him to Wilcox Memorial Hospital.

Originally posted at InjuryBoard by Wayne Parsons

Manoa Fire and Death!

Wayne Parsons — Fri, 24 Apr 2009 04:38:21 GMT

Bed and Breakfast.

Rental Units.

Manoa fire kills 2 and injures 7.

These are not new headlines in Hawaii.

Am I alone in thinking that we need to look closely at what happened in Manoa?

A dispute arose among tenants at a house that was rented to multiple families. A fire ensued. People died in thr fire. Police are investigating. Was the owner a slum lord or a person who cares? I have no doubt that the truth will come out. I do not know the truth yet.

The structure that burned today is in a very exclusive neighborhood. Manoa. Property values are high. Out of sight to most. The owner was on TV tonight. She gave the impression that she was giving reasonable rents to tenants. Reasonable as opposed to what the market would allow?

I am suspicious about what led to this tragedy.

Was the landlord making money by crowding people with forseeable issues into tight quarters? I do not know.

Stay tumed as I investigate.

And more importantly, tell me hat you think about this situation and if you know something please tell someone about what you know.

If you are concerned you shouls also read the KHON report:

"Homeowner Questions if Deadly Fire was Intentionally Set"

Ron Mizutani reports that "neighbors say they woke up to the sounds of a loud argument coming from the home and within minutes saw flames. Residents say the sound of a woman screaming echoed through the neighborhood. Residents on Mauna Place knew something was wrong as the clock approached midnight."

"It's pretty sound proof in the house so to hear it must have been a pretty loud argument," said neighbor Rick Burke. " The fire completely destroyed the home of H.R.H. Fleur who lived in the multi-story home with her daughter and granddaughter -- along with five tenants.

"There's a lot of mystery shrouding the whole business -- cause especially of the fire. Whether it was accidental arson, who knows," said Owner of the struture Fleur.

Talk of arson surfaced after an argument erupted involving two tenants and her grandson who was accused of stealing a moped.

"One was very angry with my grandson and one was very very very angry with me 2 because I refused to allow him to use his deposit for his last

month's rent," said Fleur. "It could be the argument that provoked the fire setting -- but we don't have any idea."

Fleur says she, her daughter and granddaughter were able to escape -- but two people did not.

"Somebody possibly could have had a hard time getting out? Oh yeah - yeah," said former tenant Rick Smith, who lived in the home for two years before moving out eight months ago.

According to city records, the homeowner was issued several violations, including one for an illegal duplex, another for doing work without a permit and most recently in September 2007 for having more than five unrelated people occupying the house with a building partition.

"Yes it's a rooming house," neighbor Rick Hoo. "I couldn't count the street is just covered with cars -- it's hard to tell because people keep coming and going."

It took firefighters nearly 12 hours to stabilize the home before the bodies of a man and a woman were removed.

"One was in a room, one was out of the room in the hallway," said Capt. Terry Seelig of the Honolulu Fire Department.

"I have complete confidence in HPD and HFD they'll get to the bottom of it and if someone is at fault -- than we obviously will do what we have to do," said Honolulu Mayor Mufi Hannemann.

One person is still un-accounted for but after three extensive searches firefighters believe the missing man was not in the home.

Originally posted at InjuryBoard by Wayne Parsons

Falls Lead Cause of Serious Injury and Death Among Seniors

Wayne Parsons — Sat, 04 Apr 2009 13:53:12 GMT

I get regular health and fitness updates called Fit Tips from a specialist here in Honolulu named Christie Bridges. She sent one recently that I have quoted below involving injuries from falls. Here is her story.

"Every time I turn around lately, I’ve been reading an article on the subject of “falls.” The latest was in the November/December, 2008, issue of AARP, The Magazine. According to AARP President, Jennie Chin Hansen, “Falls are the leading cause of both fatal and nonfatal injuries among older folks.”

This is confirmed by ACE Certified News, April/May, 2008, “Helping Clients Find Their Balance” by Fabio Comana, M.A, M. S. over 33% of adults age sixty-five and older and more than 50% of adults age 75 and over will experience at least one fall per year; in 2006, falls were the leading cause of injury deaths and the most common cause of nonfatal injuries and hospital admissions for trauma in older adults.

“Exercise can reduce the risk of falls among older people by 33% or more, particularly exercises that build balance and lower body strength. This is particularly significant because, among older Americans, falls cause 95% of hip fractures, and are the leading cause of injury death. When it comes to strength, balance, and even cognitive functioning, the advice of the medical community is increasingly: Use it or lose it.” This is a quote from the Instructor Manual for Silver & Fit, an exercise program for seniors designed by the National Academy of Sports Medicine for American Specialty Health.

Good balance is the result of sensory information and feedback as well as good motor responses, skills and coordination. Some things (age, for example) are out of our control, but the National Council on the Aging has identified four areas that can be addressed:

1) Medication management

2) Home safety

3) Environmental safety

4) Improving physical abilities through continued physical activity.

AARP adds one additional item—vision checks to ensure you have the proper prescription.

Dr's. Joannie Dobbs and Alan Titchenal of the University of Hawaii have identified another area that needs to be addressed: poor nutrition.

“Poor general nutrition causes a loss of overall strength and energy.” (Health Options column, Honolulu Star-Bulletin, 2/7/09) “To keep muscles strong, it is important to maintain adequate protein intake along with regular physical activity.”

They also emphasize the importance of getting enough vitamin D to keep the bones strong; iron to prevent dizziness; and vitamin B-12 for nerve health. Staying hydrated is also important.

If all this isn’t enough to convince you that fall prevention is important consider that “the CDC predicts that the direct medical costs resulting from falls each year in this country will escalate from approximately $20 billion today to $54.9 billion by 2020. That’s more than the current annual budget of the federal Dept. of Homeland Security!” (AARP)

Originally posted at InjuryBoard by Wayne Parsons

Hope On Insurance for Home Buyers, Builders and AOAO's in Construction Defect Cases From New Ruling In Florida

Wayne Parsons — Wed, 07 Jan 2009 14:33:20 GMT

Burlington Ins. Co. v. Oceanic Design & Constr., 383 F.3d 940 (9th Cir. 2004) has created havoc for home buyers and condominium associations in Hawaii since it came out in 2004. The decision was not from the Hawaii Supreme Court but from the Ninth Circuit federal court. The decision was only a "prediction" from federal judges representing the western United States about what the Hawaii Supreme Court would rule in the case.

Specifically Burlington involved a single home owner who sued her builder for construction defects in her home. The builder turned the lawsuit over to its insurance company and the insurance company said there was no coverage because it did not insure the builders negligence in constructing the house.

Sound odd? You bet! But believe it or not the insurance industry has been working feverishly to put fine print in the insurance policies of builders that does just that; no insurance coverage for defects in the buildings they build. Why buy insurance? Good question but don't expect anything to make sense when it comes to insurance. The most disrespected industry in the US - the insurance industry - has earned its lowly reputation by accepting premiums and then denying claims. The courts in recent years have been complicit in favoring the insurance industry in many rulings and abandoning former decisions that protected consumers such as the home buyer in the Burlington case and the builder in that case who paid good money for an insurance policy that didn't cover the most needed aspect of the construction.

The legal reasoning in Burlington was that the home owner sued on a contract with the builder and that claims related to that contract did not trigger coverage unless an independent basis sounding in tort was alleged. Well the courts have also ruled that a homeowner can't bring claims in "tort" when the home construction is based in contract. That is called the "economic loss rule" and is another obstacle, created by the courts, to bringing a construction defect claim. The legal analysis for those interested is whether a construction defect (i.e. a leaking roof) constitutes an “occurrence” under the definitions in the insurance policy (contract). The courts have favored the insurance industry side of cases by ruling often that there is an "occurrence" (and therefore insurance coverage) only if there is damage to “other property”. Then they say that "other property is something outside the building ( a roof tile blows off and hits a parked car) or inside the building but not part of the building (water dips onto a grand piano and damages it). As an example in American Family Mut. Ins. Co. v. American Girl, Inc. the court ruled that damage caused by a soil engineer was “property damage” caused by an “occurrence” as defined by Comprehensive General Liability (CGL)policies. This is the opposite of the Ninth Circuit federal decision in Burlington.

Hawaii consumers may benefit from a new construction defect case in which the Florida Supreme Court adopted the American Girl line of cases. See United States Fire Ins. Co. v. J.S.U.B., Inc., No. SC05-1295 (Fla. Sup. Ct., Dec. 20, 2007). This subject has been covered well for some time by the Damon Key firm in Honolulu that specializes in construction defect defense and insurance law and is considered an authority on insurance contract issues in construction. Here is their analysis of the Florida decision which I find excellent:

The court determined that defective work performed by a soil compacting subcontractor that causes damage to the contractor’s completed project and is neither expected nor intended from the standpoint of the contractor can constitute “property damage” caused by an “occurrence” under a standard commercial general liability policy.

Relying on American Girl, the Florida Supreme Court rejected U.S. Fire’s argument that a breach of contract can never result in an “accident” because this was not supported by the language of the policies. U.S. Fire’s assertion that damage resulting from a breach of contract is expected was also unpersuasive. This position would make the definition of “occurrence” dependent on whether the property damage is part of the construction contract or the homeowner’s separate property. The appropriate analysis focused on whether the damage was expected or intended from the standpoint of the insured, not whose property was damaged.

Further, reading the business risk exclusions, including the “your work” and “your product”, in conjunction with the insuring agreement supported the conclusion that a subcontractor’s defective work resulting in damage to the completed project can constitute an “occurrence.” Therefore, faulty workmanship that is neither intended nor expected from the standpoint of the contractor can constitute an “accident” and, thus, an ‘occurrence.” In the Florida case, the subcontractor’s defective soil preparation, which the insured contractor did not intend or expect, was an “occurrence.”

Finally, the Florida Supreme Court rejected U.S. Fire’s argument that faulty workmanship injuring only the work product itself does not result in “property damage.” Again relying on American Girl, the court determined the claim was not for the cost of repairing the subcontractor’s defective work, but rather a claim for repairing the structural damage to the completed homes caused by the subcontractor’s defective work. It was the subsequent soil settlement due to the subcontractor’s faulty workmanship that caused the structural damage to the homes. Because there was “physical injury to tangible property,” the court concluded that the structural damage to the homes was “property damage.”

The analysis of Tred Eyerly is spot on and should be of interest to every Hawaii insurance attorney and well as AOAO's and home builders and buyers. Tred has also provided useful links to weblogs that reference Florida Supreme Court Departs from Burlington Reasoning in Construction Defect Case.

Originally posted at InjuryBoard by Wayne Parsons