County prepares as liability coverage for lifeguards ends

Colin Yamamoto

Prevention and education are the best defenses against future lawsuits when immunity for lifeguards expires at the end of the month, ocean safety officials said Tuesday.

“Just as in health care, you know how important prevention and education is,” said Colin Yamamoto, battalion chief for Maui County Ocean Safety.

“It’s the same with ocean safety. So what can the county do? The county can beef up our prevention and education awareness for visitors and residents. . . . Bottom line, if we can do more prevention and education, there’s going to be less chances of a lawsuit for the lifeguards or any of our first responders.”

Yamamoto and county officials are searching for solutions after state lawmakers did not extend special legal protections for county lifeguards this year. Because parks are under the county and the ocean is under the state, the question over who should be held responsible for incidents at beaches dogged council members Tuesday during a Parks, Recreation, Energy and Legal Affairs Committee meeting.

The debate centers on a measure introduced in 2002 by Sen. J. Kalani English that gave lifeguards limited liability protection in incidents at state beach parks, “except for gross negligence or wanton acts or omissions.” Known as Act 170, it was the first measure of its kind, and English helped extend it every five years.

Alan Arakawa

This year, lawmakers considered making it permanent. But the House of Representatives stripped immunity from the bill and passed it unanimously. Stuck in what English called “a take-it-or-leave-it situation,” the Senate agreed to the changes.

The bill, which is awaiting the governor’s signature, requires the state attorney general to defend county lifeguards at state beach parks but leaves the county to deal with lawsuits at county beach parks. County officials were frustrated, saying lifeguards would be exposed to more personal injury lawsuits that the counties could not afford.

Beach protection in Maui County has been expanding over the years, Mayor Alan Arakawa said Tuesday. The use of personal watercraft, helicopters and better telecommunications allows lifeguards “to respond faster and more accurately,” which is good for beachgoers but raises issues for the county.

“I think it’s time for us to start really looking at, are we overreaching?” Arakawa said. “And what should the state be ponying up if they expect us to cover all of these other areas that formerly were not being covered by our lifeguards but currently are now because we have that capability?”

By law, the state covers the ocean “up to the high water mark,” the mayor and council members pointed out. The state contracts the counties to provide lifeguards at beaches.

Don Guzman

“Right now, we’re spending over $3.5 million a year to provide ocean safety officer coverage to different beach parks and facilities,” county Managing Director Keith Regan said.

That doesn’t count Makena State Beach Park, which costs about $1 million to cover and is only about 60 percent reimbursed by the state.

So, committee Chairman Don Guzman asked what was on the minds of many: “How do we deal with the high water mark and our duties to patrol the beach itself, but then having to jump into the ocean” to save people?

“This is a very complex issue,” Corporation Counsel Pat Wong said. “For me, I need to be very cautious because what you say today . . . can and will be used against you in a court of law. . . . I’d prefer not to get into what our duties are and what our responsibilities are because those will be litigated topics as we move forward.”

“Rest assured that if an event occurs, we will tender that to the state,” Wong added. “We’ll have to get into a litigated issue with them about whether or not it’s their responsibility or ours.”

For nearly an hour, council members discussed legal issues in executive session.

While there’s no way to halt the end of lifeguard immunity on June 30, the county is exploring ways to show lifeguards “that we’re going to be able to back them up,” as Regan said.

Yamamoto credited recent steps, such as allowing the Kihei-Wailea Rotary Club to install 28 rescue tubes at South Maui beaches last month.

“That’s good, but there’s a lot more prevention and education things that we can do,” he said. “That’s why I am all for this body and all the other Neighbor Islands in Hawaii, how we’re fighting for more of the TAT (transient accommodations tax) funds cause we could use some of the TAT funds for prevention and education, which is the bottom line.”

Council Member Stacy Crivello agreed that she would rather have the county pay for more personal watercraft or training than for defense in a lawsuit. She was hopeful that lifeguards and lawmakers could work together to revive Act 170 next year.

Until then, the county has some hard questions to answer.

“This is a topic that is coming home to roost come July 1 . . . and we are going to have to deal with it,” Arakawa said. “So I leave it up to you, the legislative body of our county, to have that discussion, and our staff is willing to sit and work with you. But we really need to do a lot of legwork to try to figure out exactly what our position should be and how we should be approaching this issue.”

* Colleen Uechi can be reached at cuechi@mauinews.com.