County lifeguards will remain on state beaches even if the Legislature ends the protection they have had since 2002 from certain personal-injury lawsuits, a group of mayors and council members said Wednesday.

Hawaii State Association of Counties Press Conference

But the Hawaii State Association of Counties and the Hawaii Council of Mayors are still calling on House lawmakers to extend the lifeguard immunity law another four years as the Senate version of a bill had proposed.

“If this legislation should pass as currently written, it will put our lifeguards at risk and will most certainly put our beachgoers at risk,” Kauai County Council Chair Mel Rapozo said.

Mayor Caldwell, Council Vice Chair Ikaika Anderson, Maui Mayor Alan Arakawa, Honolulu Mayor Caldwell, right, Kauai Mayor Bernard Carvalho, with Kauai City Council Chair Mel Rapozo speaking against act 170 lifeguard liability. 12 april 2017
Kauai County Council Chair Mel Rapozo gestures while speaking against the latest draft of a bill related to limited liability protection for lifeguards. Standing around him, from left, are Honolulu Mayor Kirk Caldwell, Honolulu City Councilman Ikaika Anderson, Kauai Mayor Bernard Carvalho Jr. and Maui Mayor Alan Arakawa. Cory Lum/Civil Beat

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

The House gutted Senate Bill 562 last week, replacing an extension of the sunset provision in the existing law with a section that would require the Attorney General’s office to defend any civil action or proceeding brought against a county based on an allegedly negligent or wrongful omission by county lifeguards at state beach parks.

That change, inserted by the Judiciary Committee, chaired by Rep. Scott Nishimoto, did not sit well with the mayors and council members.

The counties staff 30 lifeguards across four state beaches: Hapuna Beach on Big Island, Kaena Point on Oahu, Makena Beach on Maui and Kee Beach on Kauai. County officials had threatened to pull them off those beaches if the Legislature scrapped the liability protection they have had the past 15 years.

But the four county mayors and members of each county council softened that stance at a press conference Wednesday afternoon at Honolulu Hale.

“We’re not going to pull them off any beach that we have now,” Honolulu Mayor Kirk Caldwell said, echoing the sentiments of Wil Okabe, managing director for Hawaii County Mayor Harry Kim.

Kauai Mayor Bernard Carvalho Jr. said the counties “stand united” in their concerns for how the loss of the limited immunity would affect the safety of beachgoers and the wallets of taxpayers.

House Finance Chair Scott NIshimoto during meetings held at the Capitol, Room 305. 5 april 2016.
House Judiciary Chair Scott Nishimoto says he amended the bill in the interest of fairness. Cory Lum/Civil Beat

“This provides no benefit to the state,” Rapozo said, noting that if anything it just increases the state’s expenses because the latest draft requires the Attorney General to defend the counties.

“The only people that benefit from this action that’s about to pass is the trial attorneys, the personal injury attorneys, who stand to gain a significant amount of revenue because they will now have the ability to sue the counties and the state,” he said.

The Hawaii Association for Justice, a group of personal injury lawyers, have hired Robert Toyofuku, one of the state’s top lobbyists, to kill the bill. He said in his testimony to House lawmakers last week that the immunity lets lifeguards “perform at a substandard level.”

“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.”

Nishimoto did not respond to a message seeking comment Wednesday afternoon but did issue a statement saying the amendments made to the bill were done in the interest of fairness.

“No other first responders, such as firefighters, police officers, or EMT ambulance personnel have statutory immunity to perform their duties at a level below reasonable care,” he said.

Lifeguard station 2E near Waikiki beach for Nick's Story. 7 november 2014. photograph by Cory Lum.
Of the 406 county lifeguards in Hawaii, 36 work on the four state beach parks. cory Lum / Civil Beat

Nishimoto also said the current law “leaves members of the public, who are injured or die because a lifeguard may have performed his or her job in an unreasonable manner, without any way to seek justice.”

He said the fundamental question is whether the state should be liable for the actions of county lifeguards on state beach parks, and that legislators believe the answer is “yes.”

“The amended bill protects County lifeguards who work on State beach parks by treating them as State employees for liability purposes and requiring the Attorney General to defend any civil action against a County lifeguard for services at State beach parks,” he said in the statement.

The full House passed SB 562 unanimously Tuesday. The Senate version, extending the sunset date to 2021, also passed unanimously.

Members of each chamber will be appointed in the coming days to a conference committee which will try to reach a compromise on the bill before the legislative session ends May 4.

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