Legislature(2003 - 2004)
05/18/2003 10:45 AM House JUD
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* first hearing in first committee of referral
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SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS/AIR Number 0080 VICE CHAIR ANDERSON announced that the first order of business would be CS FOR SENATE BILL NO. 175(JUD)(efd fld), "An Act relating to civil liability for inherent risks in sports or recreational activities." The committee took an at-ease from 10:46 a.m. to 10:48 a.m. Number 0112 SENATOR RALPH SEEKINS, Alaska State Legislature, sponsor, paraphrased his sponsor statement, which read [original punctuation provided]: Alaska has many recreational opportunities to offer outdoor enthusiasts. Visitors from all over the world, along with in-state recreationalists [sic], enjoy commercial activities such as river rafting, guided hiking, snowboarding and sport fishing to name a few. Yet, the high cost of liability insurance presents a significant barrier to these enterprises, the vast majority of which are small Alaska-bases companies. Without exception, participation in outdoor recreational activities carries with it a degree of inherent risk. Senate Bill 175 adds the presumption that a participant accepts the inherent risks of a commercial recreation activity and as such has played a role in any damages resulting from that inherent risk. This legislation will decrease the uncertainties regarding the legal responsibilities for injuries and encourage the continued viability of responsible businesses that offer commercial recreational activities to the public. Existing legal uncertainties have resulted in high liability insurance costs, which are prohibitive, especially for smaller businesses. This bill will help avoid unfair and unreasonable claims that make it difficult to provide recreational and outdoor activities that are closely identified with the Alaska lifestyle and have come to be expected by visitors looking for exceptional experiences. SENATOR SEEKINS remarked that the high cost of insurance is also a substantial barrier to new businesses, that SB 175 "delineates the burden of responsibility" for businesses offering commercial recreation activities and persons who elect to participate in those activities, and that such businesses are still responsible for meeting safety standards and providing trained and competent personnel. VICE CHAIR ANDERSON turned the gavel over to Chair McGuire. Number 0269 REPRESENTATIVE GARA noted that there have been a few deaths caused by rafting on the Nenana River, and that although whitewater rafting carries with it the inherent risk of possibly dying, the chances of that are altered dramatically depending on the raft operator's level of competence. Why should a company that hires incompetent raft operators be exempt from liability? Isn't that unfair to companies that do hire competent raft operators? SENATOR SEEKINS asserted that SB 175 "doesn't do that." He referred to page 3, lines 1-3, which says: (c) This section does not apply to a civil action based on the (1) negligence of a provider if the injury, death, or damage was not the result of an inherent risk of the sports or recreational activity that was provided SENATOR SEEKINS opined that this language provides that companies are still responsible for hiring competent personnel and providing adequate training. He referred to an incident that occurred a number of years ago in which a woman in her eighties died on a rafting trip, and relayed that the plaintiff's attorney in that case assured him that under SB 175, the rafting company would not have been exempted from the negligence claim brought against it because it was clearly a case of negligence rather than inherent risk. He asserted that the aforementioned attorney considered SB 175 to be good public policy, and that it makes a distinction between negligence and inherent risk. REPRESENTATIVE GARA observed, however, that the aforementioned language contains a conflict because it says that a provider is liable for negligence unless the damage is caused by an inherent risk of the activity. Such would allow a rafting company to say, "Dying in whitewater, that's an inherent risk of the sports activity," and thereby escape liability even if the company were negligent. He asked Senator Seekins whether he would be comfortable with language that simply said a company is liable if it is negligent. Number 0522 SENATOR SEEKINS said he understood Representative Gara's concern, acknowledged that "it could probably go either way," but indicated that he felt the current language to be sufficient to allow for a civil action based on negligence. In the aforementioned incident, he said, it was negligence on the part of the provider because "they didn't look for the old lady soon enough". REPRESENTATIVE GRUENBERG remarked that in a case from the early 1960s, the Alaska Supreme Court did not adopt the defense known as "assumption of the risk," which had previously been applied in cases involving injury to a spectator at a sporting event. He asked whether SB 175 would include spectators of activities. SENATOR SEEKINS said SB 175 would apply to people who are actually involved in an activity, adding that they should be assuming the inherent risks involved in that activity. REPRESENTATIVE GRUENBERG asked Senator Seekins whether he would be willing to accept an amendment that would exclude passive spectators. SENATOR SEEKINS indicated that to some degree, spectators of sporting events are participating in those events, and thus should assume the inherent risks involved. REPRESENTATIVE SAMUELS said he agrees that people should take responsibility for the inherent risks of the activities they choose to participate in. REPRESENTATIVE GARA said he agrees with the idea that people need to take responsibility for themselves, that there are certain activities that are very dangerous, and that others should not be held responsible for mishaps during those activities. However, with regard to the aforementioned rafting example, he noted that Senator Seekins did acknowledge that the language currently in the bill could allow a case of negligence to "go either way." Number 0941 REPRESENTATIVE GARA said that this is a problem for him. He proffered that were he in the position of defending against a claim of negligence because someone he took on a rafting trip died, in order to get out of being held civilly liable, he would rely on the language currently in the bill allowing for an exemption because of an inherent risk. He said he would simply make the argument that he tells his passengers beforehand that the water is so cold in Alaska that they will get hypothermia within a matter of minutes, and therefore dying from falling in the water is an inherent risk of the activity. He offered the example of a rafting company hiring someone incompetent who ends up dumping all of his/her passengers in the river and they die as a result; the defense for that company could simply say that dying is an inherent risk of the activity, and the company would not be held liable even though it was negligent in hiring the person that was incompetent. Why immunize something like that, he asked, adding that because people could argue about how the language under discussion should be interpreted, he did not want to provide for that kind of uncertainty in the law. SENATOR SEEKINS predicted that after determining that the people got in the water in the first place through an act of negligence, the court would simply rule that the company is liable. He added, however, that the people choosing to participate in the activity accepted the inherent risk of that activity. CHAIR McGUIRE said she could see Representative Gara's point, as well as that of Senator Seekins. She said she would like to focus on the drafting of SB 175. REPRESENTATIVE GARA suggested that he and Senator Seekins didn't disagree. He added, There is some dividing line between when you've engaged in a potentially dangerous sports activity and you have to accept that it's dangerous - I understand that. But I don't want to throw the baby out with the bathwater, because there are also circumstances where somebody, through complete irresponsibility, who is trying to make money off of you, does a terrible job. And we don't want to encourage that. SENATOR SEEKINS indicated that he agrees that negligence should not be [exempted from liability]. He said he doesn't have a problem with saying that the negligent person should be held responsible, but that should not include being held responsible for inherent risks. Number 1220 REPRESENTATIVE GARA said he agrees with Senator Seekins's comments, adding, however, that he wants to "get there and not someplace else." He asked whether it would be alright to rewrite lines 2-3, on page 3, to essentially say there is immunity if the injury, death, or damage is the result of the inherent risk of the sports or recreational activity that are provided except insofar as the provider was negligent. REPRESENTATIVE HOLM opined that language on page 2, lines 4-7, sums up what the Act is to do and specifies precisely what Representative Gara intends; that language says: (b) it is the intent of this Act to (1) limit or eliminate the liability of a provider of a sports or recreational activity to a participant in the activity when an injury or damage caused by or to the participant is the result of the risks inherent in the activity REPRESENTATIVE GRUENBERG remarked that in spectator sports, there are steps that can be taken by industry to reduce the risks to spectators; for example, there are high Plexiglas barriers around ice hockey rinks [and huge nets are now put in place in the stands behind the goals] to reduce the risk of a spectator getting hit with a puck. He turned attention to page 3, line 4, and noted that it says, "design or manufacture of sports or recreational equipment or products or safety equipment used". He said that he would like the language to also specify the proper installation of the equipment and so forth; thus it could read, "design, manufacture, or installation". CHAIR McGUIRE asked Representative Gruenberg whether his intent is to create a cause of action against the person who installed the equipment, or whether it is to create a cause of action against the person who installed one type of equipment while knowing that another type should have been installed instead. REPRESENTATIVE GRUENBERG replied, "Either. Or the operators of the rink or whoever it was." Number 1381 SENATOR SEEKINS opined that that would result in a cause of action against someone who was not the provider, and so SB 175 would not provide immunity for that person. The committee took an at-ease from 11:10 a.m. to 11:15 a.m. REPRESENTATIVE GRUENBERG indicated that his concern is that the current language in SB 175 could be interpreted two different ways and, therefore, it is unclear as to whether there would be a cause of action if safety equipment is not installed properly. He asked Senator Seekins: "If they fail to raise the net or fail to install a Plexiglas shield in a hockey rink, is it your intent to allow a cause of action? Or not?" SENATOR SEEKINS replied: I believe that if the normal protections were there, with the normal installations ..., for an example, and someone failed to put them in place, ... that would subject the provider to a certain degree of liability. And that would not be tolled by this bill. REPRESENTATIVE GRUENBERG assured Senator Seekins that he is not referring to "the pickup hockey game or basketball game." Instead, he is referring to the Sullivan Arena or a university rink, for example, which are professionally designed but might fail to meet normal [safety precaution] standards. CHAIR McGUIRE suggested to Representative Gruenberg that he offer an amendment to address his concern. Number 1535 REPRESENTATIVE GRUENBERG [made a motion to adopt Amendment 1, to add "or installation" to page 3, line 4, after "manufacture"]. CHAIR McGUIRE objected. Number 1551 A roll call vote was taken. Representatives Gara and Gruenberg voted in favor of Amendment 1. Representatives Ogg, Samuels, and McGuire voted against it. Therefore, Amendment 1 failed by a vote of 2-3. CHAIR McGUIRE asked Representative Gara which amendment he would be offering. Number 1574 REPRESENTATIVE GARA said, "The longer one," and offered the following handwritten amendment [original punctuation provided]: Delete p. 3 line 2-3 Insert "inherent risk of the sports or recreational activity that was provided, except insofar as the provider was negligent." REPRESENTATIVE GARA went on to say: I think everybody in this room has the same intention on this bill, but currently the wording doesn't satisfy that intention. The wording at page 3, line 2, says, and will be interpreted, that if you are negligent, you are not liable if it was within an activity where the inherent risk is such that you should expect that you might die or be hurt. So, if you are negligent, you're still not liable. And I don't believe that's the intention of the sponsor of the bill. And so what the amendment says is that you should clearly, clearly be immunized if you are injured because of the inherent risk ... of the activity, but if you are injured because of somebody's negligence, then you're not immunized. And that will be the standard that the court will impose on us; the jury will be asked, "Was it because of the inherent risk, or was [it] because of the negligence?" And if it's because of the negligence, then you're just not immunized. And I believe, from the discussion, that that seems to be the intent of all of us, and this language gets us there. SENATOR SEEKINS pointed out however, that the language in the bill would then read, "This section does not apply to a civil action based on the inherent risk of the sports or recreational activity that was provided, except insofar as the provider was negligent." He opined that this was exactly the opposite of what's been discussed. REPRESENTATIVE GARA acknowledged that "there's a negative; Senator Seekins is correct." Number 1653 CHAIR McGUIRE suggested putting the offered language in a different part of the bill. She said: Section 3 is where it sets out those things that you're immunized from, essentially, and then [subsection] (c) is sort of the carve out - it's the caveat, it's the exception. So it's saying the rule is [proposed Sec.] 09.65.290, and that sets it out: "Civil liability for sports or recreational activities." And then it goes on to say, "But please understand, essentially, you can still sue for negligence of a provider if the injury, death, or damage was not the result of inherent risk of the sports activity." REPRESENTATIVE GARA remarked that he is [rewriting] his amendment. Number 1687 STEVE CONN, Special Projects Coordinator, Alaska Public Interest Research Group (AkPIRG), said that one of his concerns is that many tourist ventures run by small operators are sold through cruise ship lines, and so these cruise ship lines may "serve up," to the small operators, people that the small operator may or may not want to have participate in the activity offered. "It's going to put quite a burden on that small operator because all shapes and sizes come on the cruise ships," he added. Another concern he said he has is that if misinterpreted, SB 175 will do damage to Alaska's ability to attract participants to Alaska's fledgling tourist industry by suggesting that Alaska is attempting to block providers' normal responsibilities during activities that do have some inherent risk. He said he is assuming that the committee will consider both of his concerns as general policy matters while it proceeds with the bill. Number 1825 REPRESENTATIVE OGG said he objects to Representative Gara's amendment. REPRESENTATIVE GARA indicated that he withdrew it in order to create a new version of it. CHAIR McGUIRE, after determining that no one else wished to testify, closed the public testimony on SB 175. Number 1853 REPRESENTATIVE GRUENBERG made a motion to adopt Amendment 2, a handwritten amendment which read [original punctuation provided]: e This section does not apply if the cause of action is based upon the failure of a professionally designed sports arena to have or utilize normal safety equipment designed to protect patrons who purchase tickets to watch sporting events. Number 1862 CHAIR McGUIRE objected. REPRESENTATIVE GRUENBERG said the purpose of Amendment 2 is to protect spectators who purchase tickets at a professionally designed sports arena that fails to have or utilize normal safety equipment designed to protect them. He said he wants this point to be clearly stated so that it is not subject interpretation. In response to another member's concern, he said that he is referring to professional sports arenas that are designed using national standards, and that he does not expect owners of such arenas to put up brick walls, for example, in order to protect spectators. He assured members that he is not suggesting that sports arenas put up anything other than what they would normally have, but if the arenas fail to meet just normal national standards or neglect to utilize what they already have, then they would be liable. REPRESENTATIVE GARA mentioned that the whole issue of liability to sports arenas almost never comes up. Under existing law, if an arena is built to national safety standards, the jury would be told that, "and they would laugh at the case and it would be done with," he added. He said he has no interest in changing the bill in the manner proposed by Amendment 2 "because it's not a liability problem in the first place." REPRESENTATIVE GRUENBERG said he is simply concerned about instances in which sport arenas clearly fail to meet national safety standards, adding that he doesn't want SB 175 to change the normal jury instruction in such cases. REPRESENTATIVE GARA opined that as currently written, SB 175 would change the jury instruction in lot of areas unless it is altered such that "negligence is still in there." REPRESENTATIVE GRUENBERG said he would not want to adopt Amendment 2 if it wouldn't have any effect on current practice, adding that he just wants to keep the normal standard. Number 2005 REPRESENTATIVE GARA posited that if SB 175 could be clarified to reflect that one is still liable for negligence but not for inherent risk, then Amendment 2 will not be necessary. Absent that clarification, however, Amendment 2 will be necessary. REPRESENTATIVE GRUENBERG reiterated that his intent is for Amendment 2 to only pertain to situations in which professional sports arenas do not meet normal national standards. CHAIR McGUIRE said she understood Representative Gruenberg's intent in offering Amendment 2. However, she remarked, it is a hastily crafted amendment that could have unforeseen consequences. For example, she said that she doesn't know what normal national safety standards are with regard to sporting arenas. She reiterated that she objects to Amendment 2, adding that she thinks Representative Gara is correct in that the jury in a cause of action resulting from an injury occurring at a sports arena will be told whether the arena met with national standards. REPRESENTATIVE GRUENBERG said that if such is the case, he would be satisfied, reiterating that he just doesn't want SB 175 to change that. He asked Senator Seekins whether such a cause of action would still be allowed under SB 175, adding that if the answer is yes, he would withdraw Amendment 2. SENATOR SEEKINS said he doesn't know whether there is a national standard. He offered his belief, however, that SB 175 would not immunize a sports arena that left one of the Plexiglas panels down during a hockey game. REPRESENTATIVE GRUENBERG withdrew Amendment 2. CHAIR McGUIRE turned attention to Representative Gara's new proposed amendment, which - because the amendment offered by Representative Gruenberg was withdrawn - she then referred to as [Conceptual] Amendment 2. Number 2134 REPRESENTATIVE GARA made a motion to adopt his amendment, now called [Conceptual] Amendment 2, which reads [original punctuation provided]: Insert at p 3 line 7 (d) Immunity under this section shall apply if the injury is the result of the inherent risk of the sports or recreational activity that was provided, except insofar as the provider was negligent, and the negligence caused the injury. Number 2144 REPRESENTATIVE SAMUELS objected for the purpose of discussion. REPRESENTATIVE GARA said: This leaves the sanctity of the original language, so that Senator Seekins's intent is clear. And so on page 2 and on page 3 it states ..., if it's inherent risk, you're not liable if that's the reason for the injury, but then it just clarifies in a new subsection (d), right after that discussion on page 3 ... CHAIR McGUIRE interjected to clarify that the current subsections following the insertion of this new subsection (d) would be relettered accordingly. REPRESENTATIVE GARA said that in essence, [Conceptual] Amendment 2 would clarify that if the injury is the result of negligence, the immunity shall not apply. In this way, the focus of the question will be, "Was it the result of the inherent risk or was it the result of negligence?" SENATOR SEEKINS opined that [Conceptual] Amendment 2 simply restates the language already in the bill. Number 2215 CHAIR McGUIRE suggested instead that perhaps page 3, line 2, could be altered to say that the section doesn't apply if the negligence was the cause of the injury, death, or damage. Number 2231 REPRESENTATIVE GARA relayed that the committee aide has created language that simply says, "This section does not apply to a civil action based on the negligence of a provider." CHAIR McGUIRE noted, however, that what she likes about Representative Gara's language is that it says, "and the negligence caused the injury." REPRESENTATIVE GARA offered that that is why he, too, prefers his language. "I think it protects the provider much better and protects the consumer; the focus is on which one caused it," he added. SENATOR SEEKINS remarked that he understands Representative Gara's intention. He returned to his earlier remark that the court is first going to ask how a person got into the water: was it because of the inherent risk or was it because of the negligence. He opined that SB 175, as currently written, already address that issue - if the person got into the water because of the provider's negligence, there is a cause of action, but if the person dies because of the inherent risk of the activity, there isn't a cause of action. REPRESENTATIVE GARA replied: With all due respect, Senator Seekins, what will happen is, the question in the case is always, "How did she die." ... And one of the how-did-she-dies was that she was rafting a glacial river, she got hypothermia, she should have known that if she fell into the river she would have got hypothermia. And so once that's the how-did-she-die answer, ... there's a very big risk the court is going to say, "Well that was an inherent risk." And that's why we have to be more clear in this bill or else we're just going to throw a statute over [to] the courts and we'll have no idea how it's going to be interpreted. REPRESENTATIVE GARA said that if this concern of his is addressed by an amendment, he would work with the minority leader and members of the Senate to make sure that the bill is not held up on the floor, because he thinks that the sponsor's intention in introducing this legislation is good one. Number 2345 CHAIR McGUIRE relayed that the committee aide has suggested the following language change, such that on page 3, lines 2-3, it would read, "an action or failure to take action that was a result of an inherent risk, except insofar as the provider was negligent, and the negligence was a proximate cause of the injury." CHAIR McGUIRE asked Senator Seekins whether it is just that he doesn't even want the issue of negligence to be raised. "Is it that you just want to say, plain and simple, "if you go rafting, whether people are negligent or not, forget it." She indicated that she could not tell, by the current language in bill, what his intent is. SENATOR SEEKINS again reiterated his belief that the court would ask the question, how did the person get into the water, and that if it was via negligence, then there would be a cause of action. However, he added that if the person got into the raft knowing he/she was going to get wet and that that would cause health problems, then that is something for which the provider should not be held liable. TAPE 03-70, SIDE B Number 2369 SENATOR SEEKINS then said that he wants people who are negligent to still be held responsible. He opined that if a provider uses the wrong size raft, or uses people that aren't trained, then SB 175 would hold them responsible for that negligence. He again added, however, that SB 175 would not hold a provider responsible for death, injury, or damage that was the result of inherent risk. CHAIR McGUIRE suggested setting HB 175 aside. REPRESENTATIVE GARA opined that either his proposed language or the committee aide's proposed language would make the statute clear and accomplish everyone's goals. Without some change, however, that goal will not be accomplished, he predicted. He asked members to support one of the two suggestions, adding that he is confident that if such is done, he can get the bill moved on the "House side." The committee took an at-ease from 11:43 a.m. to 11:45 a.m. Number 2321 CHAIR McGUIRE, upon the committee's return, indicated that during the at-ease, members came to agreement that [Conceptual] Amendment 2 would do the following: page 3, lines 2-3 delete: "injury, death, or damage was not the result of an inherent risk of the sports or recreational activity that was provided" insert: "negligence was the proximate cause of the injury, death, or damage" Number 2296 CHAIR McGUIRE made a motion to adopt Conceptual Amendment 2. REPRESENTATIVE GARA said he would be honored to be a co-sponsor of Conceptual Amendment 2. Number 2290 CHAIR McGUIRE asked whether there were any objections to the motion. There being none, Conceptual Amendment 2 was adopted. REPRESENTATIVE SAMUELS noted that page 3, line 12, contains a typo: "sport of recreational" should read "sport or recreational". CHAIR McGUIRE announced that Amendment 3 would, after "sport" on page 3, line 12, replace "of" with "or". Number 2265 REPRESENTATIVE SAMUELS made a motion to adopt Amendment 3. There being no objection, Amendment 3 was adopted. Number 2257 REPRESENTATIVE GARA made a motion to adopt Amendment 4, to delete lines 7-9 on page 3. The language being deleted reads: Nothing in this section shall be construed to conflict with or render as ineffectual a liability release agreement between a person who participates in a sports or recreational activity and a provider. CHAIR McGUIRE indicated that she disagrees with [the goal of] Amendment 4. The committee took an at-ease from 11:52 a.m. to 11:54 a.m. REPRESENTATIVE GARA relayed that there is an existing law used by the courts regarding whether to uphold a release. He said he did not know how the courts will interpret the language on lines 7-9, and that he did not know whether, "at this late hour, with very little reflection," current law should be changed. CHAIR McGUIRE said she thinks the court has the ability to determine whether a release was signed under duress; whether the waiver was clear; and whether the person signing the release was of reasonable age, intelligence, and so on to understand what he/she was signing. She opined that waivers are an important part of life today. REPRESENTATIVE GARA mentioned that what he doesn't want to have happen is for a provider to use the language on lines 7-9 as an incentive to create a waiver that says, "And you're also waiving any action if I'm negligent or reckless." SENATOR SEEKINS pointed out that the language on lines 7-9 starts off with "Nothing in this section shall be construed to conflict with or render". Number 2137 REPRESENTATIVE GARA concurred with that point and withdrew Amendment 4. Number 2125 REPRESENTATIVE SAMUELS moved to report CSSB 175(JUD)(efd fld), as amended, out of committee with individual recommendations [and the accompanying zero fiscal note]. There being no objection, HCS CSSB 175(JUD) was reported from the House Judiciary Standing Committee.
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