Shark-Detection System Raises Liability Concern in Massachusetts

The promise of an increased amount of protection has raised concerns over whether or not towns could be held liable for injuries or death caused by sharks. Officials worry such a system could create a false sense of security.

by Doug Fraser, Cape Cod Times / April 8, 2019
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(TNS) — Heather Doyle was making fair progress in soliciting donations to install a privately funded system of buoys reportedly capable of detecting sharks. But a crucial part of the project was getting permission from an Outer Cape town or the Cape Cod National Seashore to locate it at one of their beaches.

Although there were concerns about permitting and evaluating whether the system worked, the main impediment to any agreement seemed to be liability. Towns were worried that deploying any technology that promised a heightened level of protection by either detecting or deterring sharks would create a "false sense of security" for the public, lead people to be less cautious and make it easier for any victim or their families to sue municipalities and their employees.

"Verbally, and in all of my conversations (with town and federal officials) it has been raised," Doyle said. "It's been a barrier to the conversation."

But Massachusetts has one of the most protective municipal liability laws in the nation, according to one expert. Worries about liability shouldn't be a barrier to progress, he cautioned.

"I would agree that they (municipalities) shouldn't simply be guided by whether or not they can be held culpable or liable for decisions they make. They should make decisions based on what's best for the public," said John Davis, a partner at the Boston law firm Pierce Davis & Perritano. Davis said his primary focus is defending cities, towns, and other public employers from civil and criminal claims, and he successfully defended the town of Dartmouth in a landmark case in 1999 that helped establish the limits of municipal liability.

Last week, Wellfleet Town Administrator Dan Hoort said Doyle's sonar buoy project could not be located on town property, citing concerns over increasing the town's vulnerability to a lawsuit by installing any shark detection or deterrence equipment.

"Town counsel (John Giorgio of KPLaw) said if we put something in the water that ensures safety, or we're saying it's going to increase the safety, we risk becoming liable for that," Hoort told his Select Board at its March 26 meeting. "What (Giorgio) said is, 'You don't want to hear this, but it's best if you do nothing.'"

Hoort later qualified that remark in a separate interview, saying he wanted to delay making a decision on any shark technologies until after the Woods Hole Group had completed the regional analysis of shark safety commissioned by six towns from Chatham to Provincetown. That study will not be finished until after Labor Day.

State law sets a $100,000 cap on liability awards in cases against municipalities and protects public employees executing their job from litigation. Under state law, municipalities are authorized to insure employees for up to $1 million.

Case law has reinforced those protections. In Brum v. Town of Dartmouth, the 1999 case Davis tried, school officials were found not to be liable in the stabbing death of a 16-year-old student attacked by three assailants in the town's middle school. Earlier in the day, the school principal was warned that these individuals would enter the school to harm the student. When the three individuals, visibly armed, did so later in the day, school officials failed to stop them.

Even so, the state Supreme Judicial Court found that the school employees had not directly caused the death and could not be held liable.

Jim Lampke, executive director of the Massachusetts Municipal Lawyers Association, cautioned that there is no blanket immunity from litigation under state law and that expenses arise in defending against lawsuits.

"It doesn't stop someone from filing a lawsuit even if under case law it's not a well-pled suit," he said. Discoveries, depositions, responses and information gathering all cost a lot of money.

And lawyers are always looking for something that could distinguish their case from others and result in a big financial award for their clients, Lampke said. That is especially true in parsing just what kind of assurance of safety was given by the town and/or its employees, one of the major exceptions to immunity.

"If someone goes to a beach and there are drones flying around and someone asks a lifeguard, he might say it's safe to go in," Davis said.

According to state law, public officials can be sued if direct injury occurred after the officials have given "explicit and specific assurances of safety or assistance" to a victim or member of his or her family or household. But even that bar is set high. In 1998, 16-year-old Wilson Ortiz drowned in heavy surf at Horseneck Beach in Westport. One of Wilson's friends had been told by a lifeguard that the beach would remain closed for swimming for about an hour, and that the seas were expected to drop in the afternoon.

When Ortiz and a friend returned an hour later, the lifeguards were gone for the day and there were no warning signs posted. Ortiz was swept out to sea on a rip current and his mother sued the town. But the 2002 court decision found that town employees were protected under an immunity clause that gives them the right to make discretionary decisions. As in the Dartmouth case, the court also found that immunity from litigation was possible because the employees did not directly cause the man's death; they did not contribute to the dangerous surf conditions that resulted in the drowning.

"The Horseneck Beach case is still good law," Davis said. "In an incident involving a shark attack that analysis would still apply."

Davis felt that in this state there is little chance of public officials or municipalities being successfully sued in the case of a shark attack.

"Massachusetts municipal law, in terms of negligence, is more protective of communities than most other jurisdictions," Davis said. Additional protections include the two-year limit on filing a case and a state law that exempts from liability landowners who allow their property to be used by the public for recreation as long as they don't charge for the use. Most municipalities charge for beach parking, not the use of the beach, Lampke said in a prior interview.

Both Davis and Lampke agreed that signs explaining the limitations of technologies for shark detection or deterrence would help in defending municipalities.

"There are things you can do to lessen the risk of liability, but you're not likely to eliminate it 100 percent of the time," Lampke said. "That's the challenge that government has to take."

Davis pointed to the decisions some towns face over whether to staff a beach with lifeguards.

"I grew up in Barnstable. Every summer they hired lifeguards, and that is a good idea even though there's potential liability. They protect the public," Davis said.

©2019 Cape Cod Times, Hyannis, Mass. Distributed by Tribune Content Agency, LLC.