HPD, officer request dismissal of lawsuit involving dead teen
The Hawaii Police Department and an officer who struck and killed a teenage boy with a blue-and-white police car more than two years ago in Hilo are seeking dismissal of a wrongful-death lawsuit filed by the boy’s family.
The Hawaii Police Department and an officer who struck and killed a teenage boy with a blue-and-white police car more than two years ago in Hilo are seeking dismissal of a wrongful-death lawsuit filed by the boy’s family.
A motion filed by Deputy Corporation Counsel Justin Lee seeking a summary judgment in favor of HPD and Officer Nicole Kanaka‘ole-Ioane is set for 8:30 a.m. June 23 before Hilo Circuit Judge Peter Kubota.
Robert Marx and Saphira Goode, lawyers representing the brother and parents of the victim, 16-year-old Samuel “Sammy” Mwarey, have filed a memorandum of opposition to the defendants’ motion.
A jury trial is scheduled for 9 a.m. Aug. 31 if the case isn’t settled prior to then.
Kanaka‘ole-Ioane struck Mwarey, who police say was riding his skateboard on Kapiolani Street between the YMCA and Hawaii Care Choices at about 10:24 p.m. on Jan. 5, 2024. Mwarey died at 12:16 a.m. Jan. 8 at Hilo Benioff Medical Center.
The defendants’ motion said they’re “entitled to summary judgment because they are protected by qualified immunity as a matter of law.”
“Officer Kanaka‘ole-Ioane is protected by qualified official immunity because there is zero evidence of malice, which completely bars plaintiffs’ negligence claim,” the motion states. “To overcome this immunity … the injured party carries a heavy burden: They must allege and demonstrate by clear and convincing proof the (officer) was motivated by malice and not by an otherwise proper purpose.
“Here, there is no allegation that Officer Kanakaole-Ioane was ‘motivated by ill will or an intention to commit, or a reckless disregard of committing, a wrongful act.’”
According to the filing, when the fatal collision occurred, Kanaka‘ole was performing “a routine prisoner transport from Ohana Foods to the Hilo Police Station.” The document described the collision that killed the youth as “unavoidable.”
“The environmental conditions at the time were poor, characterized by darkness and bad weather,” the motion states. “Between the intersections of Mohouli and Lanikaula Streets, Officer Kanakaole-Ioane suddenly ‘felt and heard a bang on the passenger side of the vehicle.’
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“Officer Kanakaole-Ioane exercised due care at all times; she obeyed all traffic laws and signals, was entirely undistracted, had unimpaired visibility, and tested completely negative for alcohol and drugs immediately following the accident. She neither intended for harm to occur, nor did she recklessly disregard an identifiable risk.”
According to the motion, “the undisputed evidence reveals this tragic collision was caused by Mwarey’s own actions.”
The document states an independent investigation by the Honolulu prosecuting attorney concluded that Mwarey “put himself in an extremely vulnerable position,” and “no person could ever anticipate a skateboarder to be riding in the middle of the road in dark clothing late at night and in bad weather.”
The motion notes that a toxicology test found Mwarey had a 0.19 blood-alcohol content, “more than double the legal limit for an adult driver” to be charged with DUI.
The plaintiffs’ memo posited that Kanaka‘ole-Ioane, then an 18-year HPD veteran, “breached her duty to drive safely and avoid injury to pedestrians.”
“This is evidenced by her deposition where defendant Kanakaole-Ioane admits she did not see (Mwarey) before she hit him, nor does she know why she did not see him,” the memo states. “She also admitted that she did not know if the ‘silhouette’ of his body, that she saw flying past her car after she hit him, was (Mwarey’s) body.”
The “black box” in the 2008 Ford Crown Victoria sedan Kanaka‘ole-Ioane was driving didn’t engage as it should have when the collision occurred, so there is no digital data from the vehicle.
Separate traffic reconstruction consultants hired by the county and the plaintiffs disagreed on how fast the car was traveling when the collision occurred and whether Kanaka‘ole-Ioane should have noticed Mwarey in the road under the conditions the evening of the collision.
The Mwareys’ expert opined that the evidence shows Kanaka‘ole-Ioane was driving 10 mph faster than the 24 mph the county’s expert contends she was going. The plaintiffs’ expert also concluded that Kanaka‘ole-Ioane should have seen and avoided hitting Mwarey.
“This is not the case of a sudden appearance of a pedestrian in front of a moving vehicle,” the plaintiffs’ memo states. “Qualified immunity should not extend to defendant Kanaka‘ole-Ioane or Hawaii Police Department, when she was performing a nonemergency function at the time of incident and breached her duty to pay attention, drive safely and avoid injury to pedestrians.”
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Email John Burnett at [email protected].
