Lawsuits and Liability Over Shark Safety on Cape Cod

Doug Fraser — 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 established 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.'"

What kind of world do we live in where private citizens like Heather Doyle try to get proactive and protect people and the prospect of a lawsuit derails it in order to protect the town’s purse-strings? The next issue will probably be about cell phone service to the area and its impact on the environment.

Side note/rant: Did you know the single-lane section of Route 6 affectionally dubbed “suicide alley” was originally constructed due to environmental constraints. Funny that you can now view parallel streets in most sections, but the roads haven’t been widened? Scandalous.