The recent press release from Gov. David Ige on why he vetoed SB 562 states the following:
Rationale: This bill is objectionable because it requires the Attorney General to defend the counties for any civil action or proceeding, without exception. Although the liability protections of Act 170 lapsed on June 30, 2017, the Attorney General will defend any civil action or proceeding based on acts or omissions of county lifeguards working on state beaches that are within the scope of the lifeguard’s duties.
It would take me several pages of legalese to clearly explain the full scope of SB 562 and its associated Act 170 and what took place with them in the past and in this year’s legislative session. In a nutshell, Act 170 offered immunity to county lifeguards who work at state beach parks — except in the event of performance below their profession’s standard of care and conduct. Act 170 was at one time seen as a prerequisite in order for the counties to agree to take on the exposure of having county lifeguards working at state beach parks. SB 562 was introduced this year in order to perpetuate this act, which had a sunset on June 30. SB 562 failed and Act 170 is no more.
Times have changed and thankfully this prerequisite no longer applies. The counties have figured out to do the right thing and to continue with their lifeguards covering these state parks despite the loss of Act 170. On Kauai we’re talking about Ke‘e Beach. In the other counties there are other analogous beaches. I applaud and I respectfully bow my head to our county administrators, starting with Mayor Bernard Carvalho Jr., for knowing to do the right thing by keeping our guards at Ke‘e.
Before there were lifeguards at Ke‘e we had regular drownings there, mainly because people would be snorkeling in this lovely lagoon and would unknowingly be pulled out to sea by the subtle rip that exits in the lagoon at its western portal.
Once out of the portal they were immediately in the open and wide Pacific Ocean, next stop Kwajalein. Since we’ve had lifeguards there, not only have there been zero drownings (mostly because of vigilant preventive work by our lifeguards), but there have also been several stunning, lifesaving and heroic actions performed by our lifeguards along the nearby Kalalau Trail, actions that are far beyond what we would normally think of for an ocean lifeguard.
That sentence of the governor’s press release is huge: “The Attorney General will defend any civil action or proceeding based on acts or omissions of county lifeguards working on state beaches, that are within the scope of the lifeguard’s duties.”
Although I personally would adjust the commas a bit for more clarity, this sentence needs to be posted on our Ocean Safety (Bureau) administration office walls, and it’s ultimately what our lifeguards and the county need to know.
Yes, implicit in that sentence is that if a lifeguard’s performance is below his or her profession’s standards of care and conduct, he/she will not be defended by the Attorney General and the lifeguard would have to get a defense lawyer from elsewhere. I don’t have a problem with that implication because Act 170 itself excluded immunity if there were substandards of care and conduct performance.
Furthermore, I am totally confident that our dedicated and carefully-trained lifeguards will not in fact ever perform below the standard of care and conduct for their profession.
Although I sorely miss the special honor and aloha that Act 170 bestowed on our lifeguards, I’m happy and relieved that their defense is assured should an adverse outcome take place as they carry out their beautiful, brave, sometimes dangerous, and always Kauai-protecting and lifesaving work.
Monty Downs, M.D., is president of the Kauai Lifeguard Association.