A federal lawsuit alleging the city was negligent in the death of a 63-year old Honolulu firefighter during training in heavy surf off of Diamond Head in 2016 has been settled for a reported $5.25 million.

The terms of the settlement were placed on the public record during an open hearing on Friday, March 8. Attorneys representing the city agreed that $5.25 million will go to the estate of the late Clifford Rigsbee to settle all claims brought in the case.

The settlement remains subject to approval by the Honolulu City Council. The court will retain jurisdiction over the case pending council approval.

The settlement calls for each side to pay their own attorneys’ fees and costs. As of late February, the law firm of McCorriston Miller Mukai Mackinnon, which represents the city in the case, had billed the city a total of $211,784.64, and on March 8 the council authorized spending up to $550,000.

The settlement came just days before the trial, which had been scheduled to begin the following Tuesday, March 12.

Rigsbee was injured during a training exercise on June 14, 2016. KHON reported at the time:

Fire officials say the training involved personal rescue watercraft operations through rough surf, and Rigsbee and another firefighter were training near a surf spot known as Suicides.

According to Neves, Rigsbee was on the sled while the second firefighter operated the watercraft. “They were doing their practice maneuvers, and the operator looked back and he noticed that Rigsbee was in the water floating unconsciously, so he jumped in and rendered aid right away,” he said.

An off-duty firefighter helped bring the men to Makalei Beach Park, where additional rescue personnel treated and transported them to the hospital. The second firefighter has since been treated and released.

Neves says it’s still not clear what caused Rigsbee to fall unconscious. “We don’t know what the mechanism of harm is, whether it was an accident, something happened, or just a medical condition that was pre-existing,” he said.

Neves said surf was high along Oahu’s south shore and there were strong winds at the time.

Rigsbee was hospitalized in critical condition. He died two days later of massive injuries he had suffered.

Documents filed in court present a more complete account of the accident.

The firefighter who was operating the jet ski testified under oath during a pretrial deposition.

His testimony was recounted by attorneys for the Rigsbee family in their pretrial statement.

“[He] testified that during the incident, with Firefighter Rigsbee lying prone on the attached rescue sled behind him, he first punched the RWC, a 180-horsepower Yamaha Jet Ski, straight through the whitewater of two broken waves. For both waves, the whitewater was above his head, which he estimated was about 4 feet above Firefighter Rigsbee laying prone behind him on the sled. In other words, the whitewater after the waves broke was higher than 4 feet.”

[He] testified he then accelerated the RWC straight up the face of a third wave that “caught” them, and then came down on the other side of it feeling a “drag, a drop sensation, and then a jarring feeling” “[s]ort of all together”.

He immediately looked back at Firefighter Rigsbee and saw him face down, unresponsive, next to the rescue sled.

High surf warnings were in effect for Oahu’s south shore, and waves upwards of 8 to 10 feet were expected.

The jet ski operator “testified that beyond a range of 6 to 10 feet, he could not estimate the size of the third wave, nor could he estimate the speed at which he accelerated to the top of it.”

The captain in charge of the training operation said later he had been unaware of high surf advisories, and would have postponed the training had he known waves might exceed eight feet, according to court documents. The city was also cited by the Hawaii Occupational Safety and Health Division because the safety officer assigned to the observe the training had not been in a position where he could see the area where Rigsbee was injured.

Rigsbee suffered severe “blunt force injuries to the head and neck” despite wearing protective head gear. These whiplash-like injuries were the primary cause of death, according to testimony by the city’s chief medical examiner. According to documents filed in the case, Rigsbee suffered a broken neck similar to what is known as a “hangman’s fracture.”

Documents obtained during legal discovery also identified 26 prior incidents in which Honolulu Fire Department personnel were injured during rescue watercraft training, six involving injuries to the head or neck, and two under circumstances almost identical to those in which Rigsbee was hurt.

In an training accident in April 2010, a firefighter was lying on a rescue sled when the jet ski towing it went over a wave. When the sled landed on the back side of the wave, the rider being towed hit his head on the rescue board. In a subsequent accident report, HFD said employees “were advised to use more caution when transversing [sic] over a wave.”

Another accident in September 2014 also resulted in head and neck injuries to another firefighter on a rescue sled while being towed into surf by a jet ski.

The sled rider later reported:

We were “facing off” with the shorebreak at North Beach. As we tried to punch through one of the 3 foot waves, the sled bucked me straight up into the air. My head and body came down straight into the back of the rescue water craft, then my fins “scorpioned” me, wacked me in the head. I flopped back down onto the board. I blacked out for a few seconds and then things came back fuzzy and I saw stars. I felt numbness and then tingling in my left and right arms.

Attorneys representing Rigsbee’s son and estate argued that these prior incidents should have alerted fire department officials of the dangers of this type of training.

An internal fire department investigation of the accident identified four key contributing factors–an incomplete risk analysis, unsupervised training, lack of identified training objectives, and the high surf advisory.

Another firefighter testified he had warned the fire department that changes it introduced to the rescue water craft training program were dangerous and would eventually get someone killed.

Dean Stowell was in the first class of firefighters trained and certified in operating jet skis, which the department refers to as RWC (“rescue water craft”), and was a master instructor who provided training to others.

Stowell testified that when he was certified, the department required firefighters to pass a swim test and a fitness test before being entering the RWC program. But later the department changed its policy, and began requiring all personnel to be certified on jet skis, especially those assigned to frontline fire companies equipped with watercraft.

Stowell testified that he objected to the policy change.

“You can’t put everybody on a Jet Ski safely, just as you wouldn’t want me sitting at the alarm bureau operating a computer because I would screw things up, and I’m not stroking myself in any way , shape, or form, but Jet Skis are not for everybody, and you can put yourself in a situation that you can’t get out of. And if you don’t have the water background or the swimming capability to get yourself out of it, you’re—that’s a huge liability to ask of somebody and to ask of an instructor to allow that to happen.

He went on.

I don’t think it’s fair to put people in a position that they’re not comfortable in in the sense of—like, the ocean is a very dynamic field, if you will, and you can’t expect me to teach somebody about the ocean in two weeks in a class if they don’t already have a background in the ocean. And no amount of training is going to get them proficient and safe to operate that.”

Stowell said that as a result of his concern that the deparment was creating a dangerous situation, he declined to continue as a training instructor.

A designated spokesman for the city was unable to determine whether Rigsbee had ever received any training in a surf zone prior to the accident in which he was injured, seeming to underscore the dangers that Stowell foresaw.

Now, Stowell said because he believes the training program is now dangerous, he advises anyone who asks him about it “to run as far as they could. Stay away from it.”

When asked whether he told department higher-ups about his concern that the RWC training program was going to kill somebody, he answered directly. “Yeah,” Stowell said.