Personal injury lawyers have hired one of the state’s top lobbyists to kill a bill that would extend limited liability immunity to county lifeguards who work on state beaches.

Robert Toyofuku, representing the Hawaii Association for Justice, said in his testimony to House lawmakers last week that immunity lets lifeguards “perform at a substandard level.”

“Giving lifeguards immunity for performing their duties in an unreasonable or negligent manner is bad public policy and compromises safety for residents and tourists alike,” he said.

But county officials said without that protection, which has been in place for 15 years, lifeguards would have to be pulled off of state beaches as soon as July to avoid exposing their employees to frivolous lawsuits.

Hawaii County Battalion Chief Gerald Kosaki says the liability protection helps lifeguards do their jobs without worrying about getting sued.

Nathan Eagle/Civil Beat

“Lifeguards are on the beach every day providing lifesaving measures in an uncontrolled environment,” said Gerald Kosaki, the Hawaii County battalion chief in charge of ocean safety. “It makes it easier to do that job if they don’t have to worry about getting sued.”

The current law, which provides immunity except in cases of “gross negligence or wanton acts or omissions,” will expire June 30 without legislative action.

County council members, mayors and emergency responders were hoping this might be the year to remove the sunset clause and set the law in stone. The Legislature has extended the law every few years since its inception in 2002.

But supporters of the bill say the measure’s passage looks precarious this legislative session, now down to its last few weeks. They caution that its failure could mean no lifeguards at Hapuna Beach on Big Island, Kaena Point on Oahu, Makena Beach on Maui and Kee Beach on Kauai.

And it could compromise efforts to put lifeguards at other state beaches that are currently unguarded, such as Kua Bay on the Big Island.

A bill to provide $400,000 for county lifeguards at Kekaha Kai State Park, which provides access to the bay for a growing number of visitors since the state improved the road down to it, made it farther this session than in past years.

It cleared the House but ultimately died last week after not getting a hearing in the Senate Ways and Means Committee, chaired by Sen. Jill Tokuda. 

Four people have drowned since 2008 at Kua Bay at Kekaha Kai State Park. Efforts failed again this year to have the state provide funding for lifeguards there.

Courtesy: Andrew Smith/Flickr

The bill to extend the liability protection almost died last week as well.

Kosaki, who also co-chairs the Hawaii Drowning and Aquatic Injury Prevention Advisory Committee, said he and other county officials had to push Rep. Scott Nishimoto, who chairs the House Judiciary Committee, to keep Senate Bill 562 alive. Nishimoto finally heard it Wednesday, the deadline for committees to pass bills out for the full chamber to consider. 

But the committee gutted and replaced its contents. Instead of renewing the law for another four years, which is what the Senate version of the bill had proposed, the latest draft scrapped the part about limited liability protection and inserted a section requiring the Attorney General’s office to defend any civil action or proceeding brought against a county based on an allegedly negligent or wrongful act or omission of persons employed by a county as lifeguards at state beach parks.

Nishimoto did not respond to a message seeking comment Friday.

The measure’s next stop is a vote by the full House, expected later this week. From there, it will likely go to conference committee — a panel of key lawmakers from the House and Senate who work together to iron out the differences between the two versions.

Kalani Vierra, Kauai’s Ocean Safety Bureau operations chief, told lawmakers this month that there have been no drownings at Kee Beach — part of Haena State Park on the island’s remote north shore — since lifeguards started working there in 2008. There had been several drownings there in years prior.

In 2016, he said lifeguards rescued 28 people, administered first aid 258 times and took 24,936 preventative actions, such as warning people about the ocean conditions. Nearly 200,000 people visited the beach last year. Those numbers far surpassed 2015 as the beach continues to grow in popularity.

“On calm days it is a snorkeler’s paradise,” Vierra said. “On days, however, where waves break onto the barrier reef, water comes over the reef and this creates a strong, and unseen rip current that pulls unsuspecting people out to sea.”

Snorkeling is popular at Kee Beach on the north shore of Kauai. There have been no drownings there since 2008 when lifeguards started working at the beach.

Nathan Eagle/Civil Beat

The Hawaii Association for Justice, chaired by Cindy Adair, is the only group to submit testimony opposing the bill. The state Department of Land and Natural Resources, Attorney General, all four county mayors and members of each county council support it.

“It is the wrong solution for the situation,” Toyofuku said in his written comments on the bill. “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 proposed addressing the added risk for the counties by having the state enter into a contract with the county and provide sufficient funds to purchase liability insurance or having the state defend and indemnify the counties so the state carries the risks associated with state beach parks.

Deputies with the Attorney General’s office, led by Doug Chin, told lawmakers that if the law is allowed to sunset, “the counties may not be able to keep lifeguard coverage at the state beaches putting the safety of the hundreds of thousands of yearly visitors to beaches at risk.”

“In the past, the Hawaii Association for Justice has opposed this and similar bills and indicated that the State could simply purchase insurance for the lifeguards,” the AG’s office said in its written testimony. “However, if the State were required to include the additional cost of purchasing insurance for these beaches, the State would have to pay approximately $3,000,000 a year in order to keep lifeguards on its beaches. This yearly cost would not be feasible.”

Chair Scott Nishimoto sits during house meetings at Capitol Room 308. 5 april 2016.

County officials and others lobbied Rep. Scott Nishimoto to keep the liability bill alive this legislative session.

Cory Lum/Civil Beat

Jim Howe, Honolulu’s former ocean safety chief who now directs its Department of Emergency Services, noted that ocean drownings continue to be the leading cause of visitor deaths in Hawaii.

A Civil Beat special project, published in January 2016, found Hawaii’s visitor-drowning rate is 13 times the national average and 10 times the rate of Hawaii residents. Local water safety experts said there is no better way to prevent injury or death than a lifeguard on the beach.

Ralph Goto of the nonprofit Hawaiian Lifeguard Association said the chances of fatal drownings at a beach protected by a United States Lifeguard Association-certified lifeguard are 1 in 18 million. All guards in Hawaii are certified by USLA.

He said it is time to make the limited liability protection for lifeguards permanent.

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