Maui County Sues Hawaiian Electric for Allegedly Causing Deadly Wildfires

Maui County Sues Hawaiian Electric for Allegedly Causing Deadly Wildfires

On Thursday, the County of Maui sued Hawaiian Electric for allegedly causing the wildfires that killed at least 115 people:

Today, the County of Maui filed a lawsuit against Maui Electric Company, Limited, Hawaiian Electric Company, Inc., Hawaiʻi Electric Light Company, Inc., and Hawaiian Electric Industries, Inc. for civil damages caused to the County’s public property and resources caused by recent Maui fires, including fires in Lāhainā and in Kula. The lawsuit was filed in the Second Circuit Court and the case number is 2CCV-23-0000238.

The lawsuit alleges that the Defendants acted negligently by failing to power down their electrical equipment despite a National Weather Service Red Flag Warning on August 7th. The lawsuit further alleges HECO’s energized and downed power lines ignited dry fuel such as grass and brush, causing the fires. The lawsuit also alleges failure to maintain the system and power grid, which caused the systemic failures starting three different fires on August 8th.

Of course, the lawsuit mentions climate change: “The great threat of hurricanes and their attendant high wind gusts regularly loom over the State of Hawai‘i. A number of hurricanes endanger the state each year. Climate change makes hurricanes more powerful and ferocious, greatly increasing the peril for Hawai‘i, statewide.”

Yes, let’s give the defendants an excuse. “We couldn’t help it. Men made the climate change, and the hurricanes got stronger!”

Anyway, Maui County alleges the “Defendants inexcusably kept their power lines energized during the forecasted high-fire danger conditions.”

“Defendants’ inactions caused loss of life, severe injuries, complete destruction of homes and businesses, displacement of thousands of people, and damage to many of Hawai‘i’s historic and cultural sites,” claims the county. “Plaintiff is among those damaged by the fire as a result of Defendants’ failure to shut off their powerlines during the dangerous and forecasted fire conditions.”

The counts include negligence, gross negligence, nuisance, ultrahazardous activity, injunctive relief, and trespass.

Maui County alleges Hawaiian Electric knew the high winds “would topple power poles, knock down power lines, and ignite vegetation.” They also supposedly knew “that if their overhead electrical equipment ignited a fire, it would spread at a critically rapid rate.”

The county also accuses the defendants of knowing “that their overhead electrical infrastructure did not use available technologies to mitigate fire risk, including non-expulsion fuses, covered conductors, underground power lines, composite power poles, and fiberglass and other non-wood materials.”

I agree with Maui County that the defendants had a “heightened duty of care to the public.”

Duty of care requires those in charge of companies “to make decisions in good faith and in a reasonably prudent manner.” A “heightened duty” placed on professionals to perform “their job with skill superior to that of the nonprofessional.”

Maui County lists the duties of Hawaiian Electric:

Defendants owed a duty to design, construct, inspect, repair, and maintain their power poles, power lines, transformers, reclosers, insulators, and/or other electrical equipment adequately. Defendants also owed a duty to maintain, operate, and manage their power lines, overhead electrical infrastructure, and equipment to properly ensure that they would not cause a fire. These duties included de energizing their power lines during Red Flag Warnings to prevent fires and conducting adequate vegetation management practices, such as clearing vegetation, trees, and tree limbs that could come in contact with their power lines and electrical equipment. Additionally, Defendants knew that their electrical infrastructure was inadequate, aging, and/or vulnerable to foreseeable and known weather conditions. Ultimately, Defendants failed to fulfill each of these duties.

Hawaiian Electric’s heightened duty of care:

As electric utilities, Defendants were engaged in dangerous activity, and accordingly, owed a heightened duty of care to the public to avoid foreseeable risks attendant to this activity, including the risk of fire. This heightened duty of care included exercising a very high degree of care and prudence, such as ensuring the safe transmission of electricity over their infrastructure during high-wind gust events and monitoring weather conditions that would affect their electrical infrastructure (i.e., forecasted high-wind gusts and Red Flag Warnings). Defendants also owed the public the duty to mitigate damage to their electrical infrastructure from high winds, specifically, to prevent a wildfire. Defendants further owed a duty to design and construct their power poles and power lines to perform safely and not fail during foreseeable wind events that would endanger Plaintiff’s life and property.

Maui County included pictures from a Maui Now newspaper article that show “depictions of downed, leaning, and/or damaged power poles, many touching vegetation below them.”

Documents also show that Hawaiian Electric knew that “a successful way to prevent wildfire” would be to shut off the power, especially when it doesn’t have “additional robust techniques” in place.

Hawaiian Electric also faces lawsuits from Lahaina residents.

The FBI has a list of at least 1,000 names of unaccounted people. Some people might never be found.

Disturbed Evidence

The plaintiff has the burden to prove Hawaiian Electric neglected its duty of care. Unfortunately, it might be hard to prove.

Records obtained by The Washington Post claim Hawaiian Electric disturbed valuable evidence:

Hawaiian Electric — which acted quickly to restore power on the island after Aug. 8 — hauled away fallen poles, power lines, transformers, conductors and other equipment from near a Lahaina substation starting around Aug. 12, documents show, before investigators from the federal Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) arrived on scene.

Those actions may have violated national guidelines on how utilities should handle and preserve evidence after a wildfire and deprives investigators the opportunity to view any poles or downed lines in an undisturbed condition before or after the fire started, according to court documents, letters and other records obtained by The Washington Post.

“If a lot of equipment is already moved or gone by the time investigators show up, that’s problematic because you want to observe where the equipment was relative to the ignition site,” said Michael Wara, who directs the Climate and Energy Policy Program at Stanford University. “Maybe there was a homeless encampment, kids, or a power line down on the ground where the ignition occurred. But once you move these things it’s much harder to understand what happened.”

Hawaii does not have a state fire agency that can send out “investigators to fire scenes to ensure evidence is preserved.”

A law firm representing Lahaina families asked Hawaiian Electric “to preserve evidence.” The law firm asked at least two times.

How did Hawaiian Electric respond? The company decided to take “reasonable steps to preserve its own property.”

More excuses:

However, because so many local, state and federal agencies were on the ground to fight the fires and clear debris, it was “therefore possible, even likely, that the actions of these third parties, whose actions Hawaiian Electric does not control, may result in the loss of property or other items that relate to the cause of the fire.

“Hawaiian Electric will take reasonable steps to preserve evidence but cannot make any guarantees due to the rapidly evolving situation on the ground, which also is not within our control,” the letter said.

How About the Roads, Maui County?

Maui County shouldn’t protest too much, though. Did you read Leslie’s article on the road out of Lahaina?

It turns out the only paved road out of Lahaina had a barricade on it. Police confirmed they closed some roads, mainly because of down power lines. Those who did not listen managed to live. The people actually directed people BACK to Lahaina:

Jonelle Santos said her daughter, Ronelle Santos-Adrian, managed to escape her Lahaina affordable housing apartment with her 3-year-old daughter and partner by turning their four-wheel-drive vehicle away from the standstill traffic and onto a dirt road, eventually finding their way to a friend’s house in Napili. Some of the other people who lived in the apartment complex didn’t have cars, Santos said, and her daughter thinks some of them didn’t make it out.

Kim Cuevas-Reyes narrowly escapes with her 12- and 15-year-old by ignoring instructions to turn right on Front Street toward Lahaina’s Civic Center, which earlier in the day had been turned into a shelter for refugees. Instead, she takes a left, driving in the wrong lane to pass a stack of cars heading in the other direction.

“The gridlock would have left us there when the firestorm came,” said Cuevas-Reyes, 38. “I would have had to tell my children to jump into the ocean as well and be boiled alive by the flames or we would have just died from smoke inhalation and roasted in the car.”

Mike Cicchino didn’t listen, either:

To his left, he sees two police cars blocking the road, one across the lane of traffic and another one just starting to pull away. Cicchino ignores the roadblock, driving around the police cars to head south.

About a mile later, he runs into a line of cones blocking the highway.

“I remember thinking, shoot, maybe there is something dangerous ahead,” Cicchino says. “And then we see all the other cars driving onto Front Street, so we go that way too.”

He cuts through parking lots and side streets, and ends up on Front Street near the ocean.

“So the police were blocking roads, the exit, some of the exit roads out,” he says. “And I’m assuming it’s because there’s been some downed power lines or some downed trees.”

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