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Kauai still fighting
for immunity from
lifeguard suits

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By Anthony Sommer
Star-Bulletin

Kauai County's perennial "lifeguard bill" clings to life again this legislative session after a last-minute rescue late Friday saved it from sinking.

For the past four years, Kauai has attempted to pass a bill that will protect it from lawsuits if county lifeguards are stationed on state beach parks. Last year a measure made it to Gov. Ben Cayetano's desk, but he vetoed it.

The Department of Land and Natural Resources, which maintains the state beach parks, refuses to put lifeguards on its beaches. On Kauai, the majority of drownings -- there were 12 in each of the past two years -- occur on state beaches.

"The counties already have lifeguard services in place and they have developed relationships with the fire department rescue squads and the air evacuation helicopters and the ambulance companies," said Dann Quinn, acting state parks administrator. "It seems much more prudent to contract with the counties to provide lifeguards at state beaches than completely reinventing the wheel"

Until five years ago, each county stationed county lifeguards at state beaches and the state Parks Division provided funding and liability insurance. Then, as a cost-cutting move, the state told the counties that it would continue to purchase insurance but under new policies each county would have to pay a $500,000 deductible if it lost a lifeguard-related suit.

As a result, Kauai and Maui counties pulled their lifeguards off the state beaches. Honolulu maintains a lifeguard station at Keawaula State Beach Park, and the Big Island provides lifeguards at Hapuna State Beach Park

Kauai County -- which provides lifeguards at county beach parks -- asked the Legislature for help, either by indemnifying county lifeguards or granting them outright immunity from lawsuits.

What Kauai County really would like, according to County Attorney Hartwell Blake, is for Hawaii to adopt the "natural conditions" law used in California. In that state, anyone who is knocked down by a wave and sucked out to sea by a rip current (the most frequent drowning scenario on Kauai), is a victim of an "act of God" and no one can be sued as a result. But, he noted, the county is willing to settle for less.

This year measures were introduced in the House and Senate providing outright immunity for county lifeguards. And, for the first time, all the counties banded together to lobby for it. A Senate bill passed out of the Judiciary Committee is scheduled for a Senate floor vote this week.

A change in the law isn't needed, said Bob Toyofuku, lobbyist for the Consumer Lawyers of Hawaii, which lobbies for attorneys. "It isn't good policy to give immunity," he said. He noted since 1996 uniform warning signs should give "adequate warning to the public of any possible dangers."

Charles Fell of the state attorney general's office said the protection given by those signs isn't nearly as complete as the trial lawyers claim. The attorney general's office is backing the counties in their effort to gain immunity for lifeguards.

"Let's not keep fear of lawsuits from putting lifeguards out. There is nothing more important to public safety," Fell said.

As a practical matter, lifeguards almost never get sued. The last negligence lawsuit against a lifeguard was in 1982.

"Our position is that trained lifeguards are the first line of defense. We are in the public safety business,"said Ralph Goto, Honolulu ocean safety administrator.