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By CYRIL TUOHY, managing editor of Risk & Insurance®

Discovery Channel's "Shark Week" airs July 31, so what better time is it to remind readers that there's very little risk of dying from a shark attack--one in 3.74 million, to be exact, according to statistics listed on the website of the International Shark Attack File.

So when Great White sharks earlier this month were spotted closer to shore than any locals could remember in Cape Cod, Mass., it's no wonder mayors and concerned public risk managers didn't bother granting interviews.

Municipal governments vary in how they decide to warn the public about dangers in the ocean. Posting signs is the most common way to warn people of dangers in the water; beach closings are another.

In Peter Benchley's movie classic "Jaws," the Amityville mayor, fearing the loss of tourism dollars, decided against posting signs and warning the public once it was confirmed that a swimmer's death was due to a Great White. The movie was set in Long Island, N.Y., but was inspired by a series of real shark attacks off the Jersey Shore.

Real-life municipalities with prior knowledge of shark attacks, undertows, rip tides and hidden rocks, however, need to let people know of the risks. There is no exclusion for such risks in general liability policies covering municipal governments.

"In 'Jaws,' they knew about it, and they didn't do anything about it. You have to prove gross negligence," said Mark Turkalo, senior vice president in charge of the public-entity placement group for Marsh.

In Florida, the No. 1 state for shark attacks in the United States, municipalities are protected by "total immunity," said Dave Marcus, co-managing director of the public entity and scholastic division for Arthur J. Gallagher & Co.

SHARK ATTACK NUMBERS

Florida led the nation last year in the number of shark attacks, with a total of 13, one of them fatal. North Carolina reported five attacks. California reported a total of four attacks, one of them fatal. Hawaii and South Carolina each reported a total of four attacks. None in those two states was fatal.

But overall, shark attack numbers rose last year after a down year in 2009.

In the United States, there were 36 shark attacks in 2010, up from 28 in 2009. Last year, two of the attacks were fatal, according to the International Shark Attack File. There were 36 attacks in 2008, one of them fatal; 49 attacks in 2007 and 35 attacks in 2006. No fatalities were reported in 2007 and 2006, according to the Shark File.

According to Marcus, every time someone sets foot in the ocean, "you're talking about 100 percent contributory negligence," the common law doctrine that states that if a person was injured in part due to his or her own negligence, the injured party is not entitled to collect damages.

The only possibility in which a municipality may potentially be liable is if on-duty lifeguards were somehow negligent in responding to a distressed bather, Marcus said. Many shark attacks lawsuits against municipalities don't even come to trial.

However, if municipal authorities know of a danger but don't alert the community, then plaintiffs may have a case.

In 1976, a Florida appeals court upheld a lower court's ruling that the city of St. Petersburg and its insurance carrier were not liable for severe injuries sustained by Robert Wamser following a shark attack that took place 25 feet from shore and 20 feet north of the lifeguard stand.

The lifeguard on duty in this case helped pull the victim to shore and radioed for help, and there was no negligence involved.

In a separate case, the family of Amber Benningfield, a teenage girl from Bowling Green, Ky., who was bitten by a shark during a Florida vacation in July 2000, later sued Volusia County alleging negligence because the county failed to warn swimmers of sharks.

The suit was met with the following response from Volusia County spokesman Dave Byron according to news reports: "I think we'll successfully defend this lawsuit."

Municipal protections under general liability coverage extend to other animals as well--bears roaming public parks, for example, and alligators living and nesting near golf courses or residential developments, Turkalo said.

"Insurance policies would not exclude anything like this, so if you proved negligence, the policy would come into play," he said. "There's tort caps and you can't sue over a certain limit, but when it's gross negligence, all bets are off."

In some cases, warning signs disappear, Turkalo said. Winds blow them over or mudslides tear them down. Municipalities are faced with a "negligent situation," in which there is "prior knowledge" of the risk but they aren't aware that the warnings have been compromised in one way or another.

July 19, 2011

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