A 15-year-old state policy granting immunity to county lifeguards from civil liability ended Friday, but it’s business as usual for the roughly 350 of them as they patrol Hawaii waters this Independence Day weekend.
Representatives from Honolulu and the three other counties all said last week there would be no change in lifeguard coverage despite the loss of their legal shield.
This year’s state Legislature opted to not extend a 2002 statute that had protected the counties and their lifeguards from liability for the rescue services they provide, so long as their actions did not arise from “gross negligence or wanton act or omission.”
Instead, the Legislature passed Senate Bill 562, which, in its final form, required state attorneys to give legal representation to the counties and their lifeguards when there are ocean safety-related lawsuits against them arising from duty at the four state beaches staffed by county lifeguards: Hapuna in the South Kohala region of Hawaii island, Makena Beach on Maui, Kaena Point (also known as Yokohama Bay) on the Waianae Coast, and Kee Beach on Kauai.
State Rep. Scott Nishimoto (D, McCully-Moiliili-Kapahulu), who authored the final draft, said he didn’t consider it fair that lifeguards should be afforded additional protections not enjoyed by police officers, firefighters, paramedics and other first responders.
But Gov. David Ige placed Senate Bill 562 on a list of 15 measures he is expected to veto by a July 11 deadline.
The city paid $2.2 million for general liability protection in 2016, so no additional insurance is being considered, city spokesman Andrew Pereira said.
Mayor Kirk Caldwell will return to the Legislature next year seeking to restore liability protection for lifeguards, Pereira said. “If we have to spend time and resources defending our lifeguards, we don’t think that’s the best use of our time.”
If a lifeguard is sued, the Department of Corporation Counsel will determine whether he or she was acting within the scope of duties.
Kauai Mayor Bernard Carvalho Jr., in an email, said his administration is talking to the county’s insurance broker about the possibility of additional liability coverage. He estimated that additional coverage would cost about $150,000 annually.
“There will be additional costs to the county, either in the form of additional insurance premiums and/or deductibles from any claims,” Carvalho said.
Hawaii County Managing Director Wil Okabe said Mayor Harry Kim has yet to sit down with attorneys to determine whether additional liability coverage is warranted.
Okabe said lifeguards deserve additional protection because “when they go in the water to save someone, they’re really not thinking about trying to get legal representation from either the county or the state. Their only action is to try to save a person’s life.”
Maui County spokesman Rod Antone said Mayor Alan Arakawa’s administration also is looking at additional liability insurance. “But as far as how much that would cost, we don’t know,” he said.
Arakawa, in an email, expressed disgust at the lack of action by the Legislature. “Now we have to protect our lifeguards against frivolous lawsuits while they save lives on beaches and in waters under state jurisdiction,” Arakawa said. “That’s politics for you. The only ones who win here are the plaintiffs and their attorneys.”
The head of the union representing the state’s roughly 350 beach lifeguards hopes the counties will offer some additional legal protections to the men and women who protect oceangoers entering Hawaii waters.
Randy Perreira, executive director of the Hawaii Government Employees Association, which represents Hawaii lifeguards, said he hopes the counties will see fit to provide some kind of additional legal protection for its lifeguards.
“Clearly, we’re now looking to the counties,” Perreira said. “Lifeguards risk their lives all the time — people ignore signage, they go into areas they’re not supposed to. We just find it very demoralizing for the lifeguards to fear the possibility of lawsuits and litigation when they’re just trying to do their jobs trying to save people who oftentimes don’t do anything to help themselves.”
HGEA represents 206 lifeguards on Oahu, 51 in Maui County, 48 on Hawaii island and 47 on Kauai, the union said.
Correction: An earlier version of this story incorrectly said the City Council must approve legal counsel for a lifeguard. The final decision rests with the Department of Corporation Counsel.