LIHU‘E — The Virginia engineer whose leg was broken in two places during an accident aboard a Birds in Paradise ultralight aircraft last summer filed a federal lawsuit claiming pilot negligence in the accident, Honolulu U.S. court records show. The
LIHU‘E — The Virginia engineer whose leg was broken in two places during an accident aboard a Birds in Paradise ultralight aircraft last summer filed a federal lawsuit claiming pilot negligence in the accident, Honolulu U.S. court records show.
The pilot, Thomas Defino, “denies any liability for the accident,” said Gregory Markham, who is Defino’s Honolulu attorney in the matter.
Robert B. Frija, the O‘ahu attorney representing Birds in Paradise and its insurance company, said Friday he was not in a position to respond to questions about the lawsuit due to short notice given him by the newspaper.
The accident occurred near Hanapepe Valley in August 2009, and the complaint was filed in federal court on Aug. 18 of last year.
A jury trial has been scheduled before federal Magistrate Barry Kurren in September of this year, with a first settlement conference scheduled for June 10.
Neil S. Shoemaker had been working at the U.S. Navy Pacific Missile Range Facility at Barking Sands near Kekaha when he learned the ultralight flights over the island are “wonderful way to see the island,” Honolulu attorney L. Richard Fried Jr. said.
Shoemaker seeks unspecified monetary damages to be determined at trial, according to the federal filing, and Fried said Friday he has no preference between an out-of-court settlement or taking the case to trial, “as long as he’s properly taken care of.”
Shoemaker is working in a limited capacity as an engineer on the East Coast, and hopes to return to PMRF as early as this summer, said Fried.
The passenger aboard the ultralight piloted by Defino, Shoemaker was injured, as was Defino, when the ultralight crashed in foul weather near Hanapepe Valley.
Because of the position of the wreckage and men and the windy and rainy weather, only Shoemaker was able to be pulled from the valley Saturday, Aug. 1, 2009, the day of the flight.
Defino and Kaua‘i Fire Department rescue specialists Roy Constantino and Francisco Garcia spent the night at the crash site.
Ken D’Attilio of Inter-Island Helicopters and KFD Capt. Charles Metivier went up at daybreak Sunday, Aug. 2, 2009, when rain, fog and continued high wind hampered their initial efforts, D’Attilio said earlier.
Every once in awhile, though, there was a calm period. With a piece of the ultralight’s parachute stuck to the tree serving as a wind sock, D’Attilio sensed the lull when the parachute quit moving, he said.
After dropping the Stokes litter, he had to move to a place out of the wind and wait for the next lull, when they were able to recover Defino and one of the rescue specialists.
They took Defino to a pasture on Robinson family land down Hanapepe Valley closer to Kaumuali‘i Highway, loaded him into the helicopter there, then landed at Waimea Canyon Park, where an American Medical Response ambulance brought him to the nearby Kaua‘i Veterans Memorial Hospital at the West Kaua‘i Medical Center in Waimea.
Defino suffered severe head trauma, hypothermia and other injuries, D’Attilio said.
D’Attilio then returned to the valley to retrieve the other rescue specialist.
Defino was airlifted to Queen’s later, as was Shoemaker.
Fire apparatus operator Kalani Abreu manned the equipment an earlier county press release stated.
The lawsuit claims the crash was caused by Defino’s negligence in risking a descent into rapidly deteriorating weather conditions, according to the court filing.
Further, Birds of Paradise is accused of negligence and fraud for allegedly representing its craft carried global-positioning systems when the one aboard Defino’s craft was either not present or not working correctly, leading to a delay in rescue due to uncertainty over where the craft had actually crashed.
Shoemaker, of Virginia, suffered multiple broken bones, endured multiple surgeries, and has been subjected to severe emotional distress, fear of impending death, and disability and disfigurement, and continues to incur medical expenses and loss of wages as a result of injuries suffered in the crash, the court filing says.
He seeks general, special, punitive and exemplary damages in amounts to be proven at trial, plus attorney fees and costs of the suit, the suit says.
Efforts are underway to try to reach an out-of-court settlement in the case, said Markham, Defino’s attorney.
Defino is still recovering from injuries he suffered in the crash, and lives near Chicago with his family, said Markham. Defino contends he flew in “clean air, safe space,” said Markham.
Fried said Shoemaker was a “very active guy” who has limited mobility since the accident, and may need more surgery.
‘The straw that broke
the camel’s back’
It was this accident that convinced KFD Chief Robert Westerman that the county needs its own helicopter so that KFD rescue specialists can adequately train for just this sort of difficult rescue, Westerman said.
“(It was) the straw that broke the camel’s back,” Westerman said this week in an interview outside of Wednesday’s meeting of the Kaua‘i County Council. The two rescue crewmen were new and had little or no training, Westerman said, and the incident “stressed my guys out” as it was a “pretty hazardous rescue that could have gone sour.”
Under Federal Aviation Administration rules, firefighters cannot train while hanging from a cable underneath a single-engine helicopter unless that helicopter operator is considered a “public agency,” said Ian Gregor, communications manager for the FAA Western-Pacific region that includes Hawai‘i.
“Fire and other emergency-response agencies, which are public agencies, can train like this without FAA oversight or guidance. If the operator is not a public agency, the FAA would not allow personnel on cables below a single-engine helicopter” for training purposes, he said.
For actual rescues, “if these rescues are done by a public agency, such as the city or county, or by a private company that contracts with a public agency,” the FAA is fine with those circumstances, said Gregor.
On Kaua‘i, that FAA rule has precluded most KFD rescue training involving helicopters for the past several years, said Westerman and D’Attilio.
“It is a matter of safety,” Westerman said recently. “We need to actively train exactly how we work so we reduce the chance of failure.”
• Paul C. Curtis, staff writer, can be reached at 245-3681 (ext. 224) or pcurtis@kauaipubco.com.
