Water Safety

By Monty Downs, M.D.

07/16/07

Act 170, Act 190, Senate Bill 732.  What are these, and why are they important for Kauai?

Act 190 was established in 1996 and it holds that if approved signs are put up at State and County Beach Parks, then the State and County will be able to point to the presence of these signs as an effective defense if they are sued for “failure to warn” (if someone gets injured).  The idea behind enacting this law was to encourage putting up signs – and I’m sure you’ve seen them.  They depict internationally recognizable images of “Strong Current”, “Dangerous Shorebreak”, “Waves on Ledge”, etc.

There’s a State Task Force that meets 4 times/year and approves the type and location of each of these signs.  You will also see that some have been approved and placed at beaches that aren’t Beach Parks (e.g. Lumahai, Marine Camp, to name a couple).   The law doesn’t necessarily cover these situations, and I applaud the State Task Force for agreeing to them.  I’m not sure anyone has proved the extent to which signs prevent ocean accidents, but it makes sense to try any and all means at prevention/education in order to try to prevent such accidents.

Act 170 is a bit easier to understand.  It also was passed in 1996, and it provides legal immunity for the County and for County Lifeguards when they attempt rescues that aren’t at County Beach Parks.  With this law in their back pocket, our County Lifeguards make incredible, world-class rescues (mainly from JetSkis) at Ke’e, along the NaPali Coast, as well as at Waimaumau (aka Queen’s Bath), Larsen’s, Anini, Polihale, offshore Koloa, etc.  Without Act 170, the County and the Lifeguards would run the risk that if their rescue attempt were unsuccessful and they got sued, their legal defense would be much more difficult for them and for the County.  (Act 170 does not apply if a Lifeguard were found to be “grossly negligent”.)

Here’s one example of these rescues:  On New Year’s day a couple got swept off the rocks at Queens Bath, of course with the guide book in their hand.  (Note:  The rock ledge at Queens Bath should at all costs be avoided in winter when there are north swells, and the guide books should clearly state this).   911 was called by a bystander who happened to be there.  The Hanalei JetSki was scrambled (the Lifeguards practice this the way submarine commanders practice “Dive, dive”) and screamed out of the bay and around the corner to the area.  When they got there the woman had lost her struggle in the water and had slipped under.  The Lifeguard dove off the ski, pulled her up to the surface, she took a gasp of air – and survived (thanks also to a couple of days in the Wilcox  ICU)!  WOW!  Thank you, Mark McKamey and Matt Burman!

These 2 laws were passed and I believe they have saved many lives.  However, a “Sunset” provision was built into them, such that they are to expire on June 30.  Our Ocean Safety professionals and advocates are very involved in this year’s Legislature, giving our testimony to get this sunset repealed via a bill called HB 38.  HB 38, with strong support from our Representatives Tokioka, Morita, and Sagum, passed through the House Judiciary Committee – thanks to testimony from the Mayor, the Fire Chief,  most of our Councilors, our Lifeguards, hotel representatives, as well as the usual water safety advocates.  It has now crossed to the Senate.  If it passes through the Senate committees (and we’re not sure just which they will be as yet), then it gets to the Governor’s desk.  If any of our readers know Senator Hooser or any other Senator or the Governor, please ask him/her to guide HB 38 through to being law!  Losing these Acts would be disastrous for Kauai and her people since it could lead to severe curtailing of our JetSki program.

Another bill, SB 732 was put forth by Senator Hooser and others, and it proposes that the State provide 50% of the funds necessary to establish a Lifeguard Tower at Ke’e Beach (which is a State Beach park).  If this passes, the hope would be that the County will provide the other 50% -- then we’d have a new guarded beach on Kauai, a very heavily used beach that can have strong rip currents.  We are of course strongly behind this Bill.  We’ve given testimony to the Ways and Means Committee on its behalf.  This will be a tough battle, however, since it will require the State to spend money that it isn’t currently spending.  The first article I read before this year’s Legislative session reported that the Governor’s #1 priority was a tax and spending cut. 

Well, this was kind of a dry column for our readers who aren’t attorneys.  But I think it’s important that our citizens understand some of the legal groundwork that underlies our water safety program, and that allows our brave and talented Lifeguards to do their great work. 

 
Respectfully,
Dr. Monty Downs