You’ve heard the old joke: It takes three personal injury lawyers to change a lightbulb — one to turn the bulb, another to shake him off the ladder, and the third to sue the ladder company.
The stereotype about personal injury lawyers, of course, is that they’re “ambulance chasers” — not actually interested in their clients’ health or well being, just the payout. Whether this characterization is universally true or not is up for debate and individual interpretation.
But the Hawaii Association for Justice — a professional association of the state’s personal injury lawyers — is certainly not doing anything to help the scumbag image.
As Civil Beat’s Nathan Eagle reported Monday, the lawyers have hired one of the state’s top lobbyists to do away with a long-standing law that protects county lifeguards working on state beaches from liability.
Given that there is no evidence of negligence on the part of county lifeguards, and that there is ample evidence that lifeguards routinely save lives, this political posturing can only be read one way: as a shameless, greedy and transparent attempt by the lawyers to drum up business for themselves at the cost of beachgoers’ safety and lifeguards’ livelihoods.
County lifeguards working on state beaches have been protected from liability since 2002, except in cases of “gross negligence or wanton acts or omissions.” Without such protections, the counties initially said they would have to pull lifeguards from beaches since their employees could be exposed to frivolous lawsuits.
While county mayors backed off that threat Wednesday, saying they’d leave lifeguards on the state beaches, they remain concerned about the repercussions of doing so without the liability protection.
Lawmakers have renewed the protection every few years and, with the current law set to expire June 30, many thought it might even be made permanent this year.
But while the Senate called to renew the law for another four years, Senate Bill 562 almost died last week when Rep. Scott Nishimoto neglected to hear it in the House Judiciary Committee.
Nishimoto did not respond to Eagle’s message seeking comment, but Gerald Kosaki, who co-chairs the Hawaii Drowning and Aquatic Injury Prevention Advisory Committee, told Eagle he and other county officials had to push Nishimoto to hear the bill Wednesday, the last day for committees to pass bills for full consideration.
Then, when the House did hear the bill, it scrapped the part about limited liability protection and inserted a section requiring the Attorney General’s office to defend the counties in civil cases that arise from allegedly negligent lifeguards.
The House’s current version of the bill demonstrates how one small but powerful special interest can hijack our political process. The only opposition to the original Senate bill is the personal injury lawyers’ professional organization. The state Department of Land and Natural Resources, the Attorney General, and all four county mayors and members of each county council supported it.
Common sense supports extending the liability protection too. The protection works for two very important reasons:
• It makes hiring lifeguards cheaper, meaning counties can afford to staff more beaches.
• There is no evidence that lifeguards perform less effectively or professionally just because they’re protected from liability.
But Robert Toyofuku, representing the misleadingly named Hawaii Association for Justice, tried to scare House lawmakers into submission, saying in his testimony 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, offering zero evidence for his claims.
This fear-mongering is especially flagrant because the limited liability currently in place does not apply in cases of “gross negligence or wanton acts or omissions.” In other words, if a lifeguard is truly negligent, you can still take action against him or her.
But cases like that are most certainly a small minority. Lifeguards, by and large, are the good guys, and Hawaii could use a lot more of them. Our visitors are drowning at alarming rates, according to a Civil Beat special report published last year. And the single best way to prevent injury or death, according to experts, is to have a lifeguard on the beach.
SB 562 now heads to conference committee, where lawmakers from both the House and the Senate will hash it out behind closed doors.
Stripping lifeguards of their legal protection is the real world equivalent of shaking them off the ladder. If the House’s perverse version of the bill moves forward, Hawaii’s personal injury lawyers will be lining up to sue.
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