Navy still on the hook for negligence claims by military families injured by jet fuel leak

The government managed to dodge failure to warn claims thanks to the Federal Tort Claims Act.

by Candace Cheung, Court House News, January 11, 2024

HONOLULU (CN) — A federal judge on Thursday advanced the bulk of negligence claims related to a 2021 U.S. Navy jet fuel leak that contaminated the drinking water and sickened hundreds of the military’s own dependents on a Honolulu base.

Military families brought the suit against the United States in September 2021, claiming the jet fuel from the Navy’s Red Hill Bulk Fuel Storage Facility polluted water along the military’s own water system and caused severe medical ailments ranging from gastrointestinal issues, skin conditions and neurological symptoms. The plaintiffs say the government failed to warn them about the potential dangers of the Red Hill facility and had denied them proper medical treatment.

Ruling on a motion to dismiss Thursday, U.S. District Judge Leslie Kobayashi found a misrepresentation exception in the Federal Tort Claims Act — which bars claims against the United States for fraud or misrepresentation by a federal officer — shields the government from failure to warn elements in the plaintiffs’ negligent undertaking and medical negligence claims. The military families had said in their suit that the government had, at least partially, waived sovereign immunity.

The dozens of plaintiffs had argued their failure to warn claims shouldn’t be considered misrepresentation but rather a violation of the public notification requirement of the Safe Drinking Water Act.

“The court finds plaintiffs’ failure to warn claims are more properly characterized as a failure to communicate information, rather than as a negligent performance of an operational task,” Kobayashi wrote, finding the government’s failure to issue a water advisory did not fall under the Safe Drinking Water Act’s requirement to notify.

“Even if defendant possesses a duty to issue a public notification pursuant the SDWA and Title 40 Code of Federal Regulations Sections 141.201 and 141.202(b), the misrepresentation exception still applies because the focus of the failure to warn claims is on the communication of information, Kobyashi wrote.

The plaintiffs, represented by Texas-based law firm Just Well Law and locally by Honolulu attorney Lyle Hosoda, also argued that the exception only applies to commercial or financial cases, and not personal injury cases. Kobayashi cited the Ninth Circuit’s previous rejection that the Federal Tort Claims Act only applies in economic contexts in her dismissal of the argument.

The failure to warn element of the plaintiff’s negligence claim, however, survived dismissal. Kobayashi found the relationship between government and the families, who lived on base on housing owned by the Navy, was akin to a lessor/lessee relationship and under Hawaii law, property owners have a duty to warn their lessees of any potential hazards.  

“Defendant possessed greater knowledge of the dangerous condition, given that defendant owns and operates the water system, and had more information about the leaks, given that the leaks were allegedly caused by negligent errors of United States personnel,” the judge wrote.

Nuisance, premises liability and emotional distress claims also remain in place. A non-jury trial for the suit is scheduled to begin in March.

The judge also declined to dismiss 77 plaintiffs from their medical negligence claim accusing the military of failing to treat the myriad of medical conditions they developed after ingesting the contaminated water. The government had argued that the claim for these plaintiffs hadn’t been specific enough as to the dates or from whom they sought treatment. Kobayashi disagreed, finding that the general allegations were sufficient for a medical negligence claim.

The jet fuel leaks from May and November 2021 have since been attributed by the Navy to operator error. The state has pushed for the Navy to take responsibility over the contamination, which continues to threaten the island’s main aquifer, that lies underneath the Red Hill facility which has been shut down and defueled.