Honorable Calvin K.Y. Say

Speaker, House of Representatives

Twenty-First State Legislature

Regular Session of 2001

State of Hawaii

Sir:

Your Committee on Water and Land Use, to which was referred S.B. No. 796, S.D. 1, entitled:

begs leave to report as follows:

The purpose of this bill is to provide immunity from liability for the State and counties and their lifeguards in the operation of beach parks, or in providing lifeguard services except for damages arising out of gross negligence, or any wanton act, or omission of the State, county, or its lifeguards.

The Mayor of Kauai County, Mayor of Hawaii County, County of Hawaii, members of the County Councils from Hawaii, Maui Kauai, and Honolulu, Kauai Economic Development Board, Hawaiian Lifeguard Association, Kauai Visitors Bureau, and the Kauai Chamber of Commerce testified in support of this measure.

The State Attorney General, Department of Land and Natural Resources, City and County of Honolulu, the Kauai Office of the County Attorney, and others testified in support of the intent of the measure.

Consumer Lawyers of Hawaii (CLH) testified in opposition to this bill.

Your Committee has amended this bill by incorporating changes developed by attorneys from the State, the counties, and the Consumer Lawyers of Hawaii as heard and discussed in H.B. 280, H.D. 1. As amended, the bill provides immunity so that the State, the counties, and lifeguards will not be liable to any person for any civil damages resulting from providing lifeguard services at any public beach park or public beach.

As amended, this bill removes the exemption from liability for damages resulting from gross negligence, wanton acts, or omissions. Your Committee deliberated at length over this amendment. If the "gross negligence" provision were to remain, the counties would not be willing to provide the level of lifeguard services needed to protect ocean users due to the threat of costly lawsuits; nor would this reduce the number of lawsuits going to trial.

Your Committee finds that by deleting the "gross negligence" provision, there would be no opportunity to question the "state of mind" of a lifeguard, and it would allow a public entity to remove itself from the lawsuit at the early stage. This would result in considerably less exposure to an adverse judgment and reduced litigation costs. Most importantly, this would provide a greater incentive to furnish lifeguard services, and increase the likelihood of saving lives.

Your Committee also finds that Act 190, Session Laws of Hawaii (SLH) 1996, established a means for the development of a legally adequate warning system at public beach parks that:

Act 190, as amended by Act 101, SLH 1999, is scheduled to be repealed on June 30, 2003.

After further consideration, your Committee has amended this bill to repeal this "sunset" provision, thereby ensuring the continuation of increased public safety at State and county controlled beach parks.

As affirmed by the record of votes of the members of your Committee on Water and Land Use that is attached to this report, your Committee is in accord with the intent and purpose of S.B. No. 796, S.D. 1, as amended herein, and recommends that it pass Second Reading in the form attached hereto as S.B. No. 796, S.D. 1, H.D. 1, and be referred to the Committee on Judiciary and Hawaiian Affairs.