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Legislature considering ending law protecting lifeguards

Makena State Beach Park could lose its Maui County lifeguards if a law protecting them and the county from personal injury lawsuits isn’t extended by the state Legislature.

That protection has been in place for 15 years and is due to expire June 30 without action from lawmakers to extend it or make it permanent.

A bill to extend limited liability immunity for county lifeguards made its way through the Senate, but the House’s version guts the original measure. It allows the current law to expire. The House bill returns to the Senate and a likely conference committee, where a panel of lawmakers from both chambers hammers out differences in the measure.

The House version requires the state attorney general to defend any civil action based on the negligence, wrongful act or omission of a county lifeguard for services at a designated state beach park.

The counties are seeking permanent protection for their ocean lifeguards.

“Simply put, without these protections, the County of Maui will not be able to provide lifeguard services at state beach parks, which includes the popular Makena Beach Park, due to fear of potential liability,” Mayor Alan Arakawa said.

As introduced, Senate Bill 562 would have made permanent the liability protections given county lifeguards since 2002. A revised bill that made it from the Senate to the House would have extended the law’s liability protection for lifeguards for four years, or until June 30, 2021.

The law shields county lifeguards and counties providing ocean lifeguard services at state beaches, “except in the case of gross negligence or wanton acts or omissions.” Without an extension by state lawmakers, the law sunsets June 30.

Lobbyist Bob Toyofuku opposed permanent liability protection for ocean lifeguards on behalf of the Hawaii Association for Justice, the professional organization for the state’s personal injury lawyers.

The association “has always maintained that giving lifeguards immunity from performing their duties in an unreasonable or negligent manner is bad public policy and compromises safety for residents and visitors alike,” Toyofuku said in written testimony.

Hawaii law requires all first responders — medics, police, firefighters, emergency room doctors and nurses — to perform their jobs with reasonable care under the circumstances, he said.

“There is no public policy justification for condoning negligent job performance by any government employee; nor is there any justification for treating lifeguards any different from other first responders who provide equally dangerous lifesaving services,” he said.

The state Tort Claims Act protects the counties, and the law treats lifeguards on state beaches as state employees and provides for the state to defend any lawsuits against the counties, Toyofuku said.

He said that the personal injury lawyers’ association would support modification of the current law to make it clear that the state attorney general shall defend in any civil action against any possible negligent conduct by a county lifeguard at a state park.

That language was incorporated into the House version of the bill, which is not what county officials had in mind.

Submitting testimony on behalf of the Hawaii State Association of Counties, Maui County Council Member Stacy Crivello supported the bill to extend liability protection.

“This measure allows the counties to be protected at the same level as the state against frivolous lawsuits,” she wrote. “Lifeguards already risk their lives to save others, and exposing them to further liability is unjust.”

Maui County Council Chairman Mike White told lawmakers that if the measure did not pass, then “it would make the liability of lifeguards at state beaches such as Makena State Park unclear as the county provides lifeguard services on behalf of the state.”

Testimony in favor of extending the liability protection for lifeguards came from Kauai Mayor Bernard Carvalho Jr., the Hawaii Council of Mayors, Kauai County Council Chairman Mel Rapozo, Kauai Council Member Derek Kawakami, Hawaii Government Employees Association Executive Director Randy Perreira and the Kauai and Hawaii county fire departments.

Providing testimony for the board of directors of the Hawaiian Lifeguard Association, Ralph Goto said there’s a need for permanent protection for the counties and their ocean safety employees providing lifeguard services at state beach parks.

“Without this protection, the counties have expressed serious concerns about continuing to provide these essential public safety services,” he said. “If county lifeguards were pulled from the four state parks (Makena, Hapuna on the Big Island, Ke’e on Kauai and Kaena Point on Oahu), the question to ask would be ‘when, not if’ drownings and serious injuries would occur.”

He pointed out that the measure would not protect lifeguards from all liability. “Cases of gross negligence and/or wanton acts or omissions would still be subject to adjudication based on the facts of each case.”

The state Department of the Attorney General submitted testimony in favor of maintaining immunity from lawsuits to lifeguards.

If the law were allowed to expire, “the counties may not be able to keep lifeguard coverage at state beaches, putting the safety of hundreds of thousands of yearly visitors to beaches at risk,” the testimony said.

It went on to recall that the Hawaii Association for Justice has opposed such measures and suggested the state purchase insurance for the lifeguards.

“However, if the state were required to include the additional cost of purchasing insurance for these beaches, the state would have to pay approximately $3 million a year in order to keep lifeguards on its beaches,” it said. “This yearly cost would not be feasible.”

The state Department of Health submitted written testimony citing a 2001 study by the Centers for Disease Control and Prevention’s Injury Center. It documented that most drownings occur at unguarded beaches.

“These findings underscore the importance of having trained lifeguards stationed at all beaches where people swim,” the department said.

* Brian Perry can be reached at bperry@mauinews.com.