Destroyed homes and cars are shown, Sunday, Aug. 13, 2023, in Lahaina, Hawaii. Hawaii officials urge tourists to avoid traveling to Maui as many hotels prepare to house evacuees and first responders on the island where a wildfire demolished a historic town and killed dozens. (AP Photo/Rick Bowmer)
Hawaiian Electric, a century-old utility company that says it “serves 95 percent of Hawaii’s 1.4 million residents on the islands of Oahu, Maui, Hawaii, Lanai and Molokai,” now faces class-action litigation for its alleged role in sparking the deadly Lahaina Fire with downed power lines.
In a joint statement over the weekend, the law firms LippSmith LLP, Foley Bezek Behle & Curtis, and Robertson & Associates, LLP, confirmed that a class action suit was filed in state court against Hawaiian Electric Industries, Inc. and subsidiaries Maui Electric Company, Hawaii Electric Light Company, Inc., and Hawaiian Electric Company, Inc. for allegedly ignoring high wind and red flag warnings last week amid the “high fire danger” brought about by Hurricane Dora.
Lahaina Fire exhibit (image via court documents)
Monica I. Eder and Rede S. Eder, the lead plaintiffs, brought the lawsuit “on behalf of the thousands of people who live and work in and around the town of Lahaina whose lives have been forever changed” in the wake of the “devastating fire” that “roared through the former capital of the Hawaiian Kingdom on August 8, 2023,” the 32-page complaint said.
As of early Monday afternoon, the death toll had risen to 96.
The lawsuit raises claims of negligence, gross negligence, public nuisance, inverse condemnation, and “ultrahazardous activity.”
“Our team is both humbled and honored that our Hawai’i clients have entrusted us to help find a meaningful way forward from this extraordinarily tragic event,” attorney Graham LippSmith said in a statement. “We will devote every resource required to help our clients navigate through this catastrophe.”
According to the lawsuit, the electric company’s inaction directly contributed to the destruction.
“By failing to shut off the power during these dangerous fire conditions, Defendants caused loss of life, serious injuries, destruction of hundreds of homes and businesses, displacement of thousands of people, and damage to many of Hawai’i’s historic and cultural sites. Many people remain missing,” the suit said. “This fire marks the most destructive — and deadliest — human-made disaster in Hawai’i history.”
“Scores of people burned to death. Other victims suffered severe burns, smoke inhalation, and additional serious injuries. The fire decimated the entire historic town of Lahaina, as homes, businesses, churches, schools, and cultural sites burned to the ground,” the complaint continued. “Only ashes of those structures remain. The fire also consumed thousands of acres and left severe mental stress and emotional devastation in its wake.”
Hawaiian Electric’s vice president Jim Kelly was quoted by CNN as saying that the company’s “immediate focus is on supporting emergency response efforts on Maui and restoring power for our customers and communities as quickly as possible.”
Though he did not comment on the pending litigation, Kelly noted that the cause of the fire had not yet officially been “determined.” He reportedly said Hawaiian Electric “will work with the state and county as they conduct their review” and noted that electricity “powers the pumps that provide the water needed for firefighting.”
The lawsuit aims to prove that Hawaiian Electric was aware of multiple National Weather Service warnings and “left their power lines energized” even as it “knew that the high winds the NWS predicted would topple power poles, knock down power lines, and ignite vegetation.”
The lawsuit pointed to an incident in the early morning hours of Aug. 8 involving a downed Hawaiian Electric power line between Kelawea Street and Kuialua Street, where there was a brush fire.
“One of the Defendants’ power substations is located near where both the initial three-acre fire started and where authorities reported a downed power line early on August 8, 2023,” the lawsuit alleged, also citing local news reporting about at least 30 downed power poles.
The negligence, gross negligence, and public nuisance case claimed that Hawaiian Electric was derelict in its duty to “design, construct, inspect, repair, and maintain their power poles, power lines, transformers, reclosers, and other electrical equipment adequately.”
Plaintiffs further alleged that Hawaiian Electric was “engaged in a dangerous activity and, accordingly, owed the public a heightened duty of care to avoid foreseeable risks attendant to this activity, including the risk of fire.”
Last Friday, Hawaii Attorney General Anne Lopez (D) said in a statement that her office would undertake a “comprehensive review” of key decisions made before and after the wildfires and of existing policies in place.
“The Department of the Attorney General shares the grief felt by all in Hawaiʻi, and our hearts go out to everyone affected by this tragedy,” Lopez said. “My Department is committed to understanding the decisions that were made before and during the wildfires and to sharing with the public the results of this review. As we continue to support all aspects of the ongoing relief effort, now is the time to begin this process of understanding.”
The civil lawsuit was already reminiscent of litigation filed against Pacific Gas and Electric (PG&E) in the aftermath of the deadly 2018 Camp Fire in California (which led to criminal charges, too). The Hawaii class action, however, referenced the California tragedy directly in alleging that Hawaiian Electric should have created a plan to incorporate Public Safety Power Shutoffs (PSPS) “during Red Flag and High Wind conditions.”
“Defendants never created a PSPS plan,” the lawsuit said, pointing to Exhibit A: a Hawaiian Electric press release from 2019 which referenced the Camp Fire. That press release detailed drone survey plans but not a power shutoff.
“Unlike California, many utility lines in Hawai’i run through tropical forests and areas that typically receive abundant rainfall,” the press release said.
Hawaiian Electric press release exhibit A (image via court documents)
Plaintiffs seek an injunction “enjoining Defendants from leaving their power lines energized in high fire risk areas of Maui during Red Flag Warning and/or High Wind Warning conditions.” They also seek an order “requiring Defendants to use tools and technologies to mitigate the risk of fire, including but not limited to, burying transmission lines, using covered conductors and non-expulsion fuses, and disabling automatic reclosers during fire weather.”
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