State bill will end liability protection for county lifeguards at state beaches

Mayor: Lifeguards at Makena would not be affected

The state Senate has agreed to a state House version of a bill that would end limited liability protection to county lifeguards at state beach parks, but Mayor Alan Arakawa said that lifeguards at Makena State Beach Park would not be affected.

The House version requires the state attorney general to defend any civil lawsuit brought against a county based on negligence, a wrongful act or omission by a county lifeguard providing services at a state beach park.

“The Senate agreed that the concerns raised by the potential sunset of the current law outweigh the difference of opinion in the current form of the bill that exists between the House and Senate,” a Senate announcement said.

Senate Majority Leader J. Kalani English, who represents East Maui, Upcountry, Molokai and Lanai, pledged to try again next session to get immunity from lawsuits for lifeguards.

“I’ve always advocated for the protection of county lifeguards and to provide them the tools they need to do their job,” he said. “I will continue to pursue this issue and introduce a bill next session to try to restore immunity for the lifeguards.”

Lifeguards at state beaches have had limited liability protection since 2002. The law set to expire June 30 shields county lifeguards and counties providing ocean lifeguard services, except in cases of gross negligence or wanton acts or omissions.

On Friday afternoon, Arakawa said that the bill advanced by lawmakers keeps the protection for lifeguards working at Makena State Park, “so Makena is not affected and there would be no reason to pull lifeguards from there.”

Makena State Beach Park consistently ranks among the top beaches in the state for spinal cord injuries. From 2009 to 2013, Makena had the most spinal cord injuries, 22, according to the state Department of Health’s Injury Prevention and Control Section.

Arakawa said the House version of the bill requires the attorney general to defend lifeguards only on state beaches.

“The county isn’t required to provide lifeguard services on state beaches, but agreed to help the state by placing lifeguards at Makena Beach,” he said. “As far as I know, county lifeguards at nonstate beaches would not be protected. The county lifeguards may be subject to personal liability.”

Without the state legal protection, “our lifeguards will be subject to frivolous lawsuits,” the mayor said. “We were always liable for what is called ‘gross negligence,’ but this really puts our lifeguards at risk legally. The state needs to take into consideration that beaches and the ocean up to the high water mark are under the state’s jurisdiction. Yet, they have no lifeguards at any of their beaches. The county does this where we have beach parks, but really this is a state responsibility.”

The bill originally called for making legal protection permanent for lifeguards, but it was changed to extending the immunity for another four years, or until June 30, 2021.

Now, despite permanent protection for lifeguards sought by the counties, lawmakers have taken up language proposed by lobbyist Bob Toyofuku, representing the Hawaii Association for Justice, the professional organization for the state’s personal injury lawyers.

Toyofuku told lawmakers that it’s “bad public policy and compromises safety for residents and visitors alike” when lifeguards have immunity from performing their duties in an unreasonable or negligent manner.

First responders — ambulance medics, police, firefighters, emergency room doctors and nurses — are legally required to perform their jobs with reasonable care, and there should be no exception for lifeguards, 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.

Ralph Goto, representing the board of directors of the Hawaiian Lifeguard Association, said that if county lifeguards were pulled from four state parks (Makena, Hapuna, Ke’e and Kaena Point), “the question to ask would be ‘when, not if’ drownings and serious injuries occur.”

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