The waters edging Hawaii’s beaches can be unpredictable. Rip currents and rogue waves can startle visitors and residents alike. Swimmers, surfers and snorkelers who want to enjoy our shorelines but have middling aquatic skills are wise to stay within sight of lifeguard posts.
State law currently provides limited protection from lawsuits when lifeguards undertake rescues. It shields the counties, the state and the lifeguards themselves with immunity, except in cases involving “gross negligence or wanton acts or omissions” on the part of lifeguards.
House Judiciary Committee Chairman Scott Nishimoto has advanced a draft of Senate Bill 562 Opens in a new tab that would effectively drop that liability shield. His ill-advised move would leave counties — and taxpayers, of course — vulnerable to a potential tidal wave of lawsuits tied to injuries and drownings at public beaches.
Lawmakers in the state Senate, meanwhile, have approved a draft of SB 562 that would extend the protections for county lifeguards for five years. When lawmakers meet in conference committee to work out the differences, the Senate draft should prevail as it has the backing of county leaders, lifeguards and other knowledgeable first-responders as the more viable option for keeping shoreline waters reasonably safe for beachgoers.
During a news conference held last week in support of extending the liability cover, which has been in place for 15 years, Kauai County Council Chairman Mel Rapozo said the proposed House draft “does absolutely nothing but punish the counties” while benefiting trial and personal injury attorneys who would be free to sue the counties and the state for any level of perceived negligence.
Nishimoto has contended that the shield should be dropped for the sake of equality as other first responders — police, firefighters and emergency medical technicians — are not afforded the same level of legal immunity. In a statement, he asked: “If your loved one is hurt or dies due to negligence, would you not want the right to seek resolution? Under the current law, you have no recourse.”
That point echoes bill testimony submitted on behalf of the Hawaii Justice Association (a professional organization for personal injury lawyers and other attorneys), which noted: “Currently, only lifeguards are allowed to perform at a substandard level by providing them with immunity against … negligent performance.” That may be so, technically. But our lifeguards are held to high standards in ocean-safety training and county employee conduct. And this law stands as a case in which the benefit of immunity outweighs detriment.
The limited liability protection was established in 2002 because some counties would not otherwise provide lifeguard services at state beach parks, due to the fear of potential liability issues. The law is needed to ensure continued safety efforts at our shorelines.
Lifeguards make a difference. On Kauai for example, there were 12 ocean-related drowning deaths in 2016 — all at unguarded beaches.
In testimony supporting the liability shield, Kauai’s Fire Department chief, Robert Westerman, said before lifeguards were stationed at the Garden Isle’s Ke‘e Beach nine years ago, there were eight drownings between 1970 and 2008. Since then, there have been none.
Last year, he said, lifeguards and ocean safety officers at the North Shore beach rescued 28 swimmers in distress and conducted nearly 25,000 preventive interactions with beachgoers — all “possible rescue avoidance.” Westerman added, “Nothing can replace the physical bodies on the beach providing these services.” He’s right.
In the islands, where drownings are by far the leading cause of tourist deaths, lifeguards make up a first responder category that should be set apart from the others.
If SB 562 negotiations fail and lawmakers do nothing, the liability protection for the counties will expire on June 30. For the sake of public safety, the current law, which allows our lifeguards to work at rollicking shorelines without fear of liability-related repercussions, should be extended or — better yet — established as permanent.
