Legislature(2003 - 2004)
03/26/2004 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 474 - LIABILITY FOR AIRPORTS AND AIRSTRIPS Number 0247 CHAIR McGUIRE announced that the final order of business would be HOUSE BILL NO. 474, "An Act relating to civil liability associated with aircraft runways, airfields, and landing areas." REPRESENTATIVE HOLM, speaking as the sponsor, noted that members have a proposed committee substitute (CS) in their packets. Number 0299 CHAIR McGUIRE moved to adopt the proposed CS for HB 474, Version 23-LS1745\D, Bullock, 3/23/04, as the work draft. There being no objection, Version D was before the committee. REPRESENTATIVE HOLM said that HB 474 proposes to make minor changes to AS 09.65.093. It will remove the word "natural" so that "person" will include "a corporation, company, partnership, firm, association, organization, business trust, or society, as well as a natural person", which is currently the definition of "person" given in AS 01.10.060(a)(8). With regard to civil liability, the law currently only protects individuals who maintain airstrips without compensation; HB 474 will allow "a greater range of people and organizations to provide this service for free." Also included are changes intended to make the statute more comprehensive and clear, he relayed. The goal is to allow volunteer organizations and good corporate neighbors to provide some services that might otherwise fall to the state. If a company or organization or individual spends their own time and money to maintain or construct an airstrip that others are free to land upon, they should not be sued for "this kind act," he concluded, noting that HB 474 is [supported] by the Aircraft Owners and Pilots Association (AOPA). REPRESENTATIVE GARA asked if proposed subsection (b) is supposed to apply to people who voluntarily provide or maintain an airfield. REPRESENTATIVE HOLM indicated that that is his intent. REPRESENTATIVE GARA remarked, however, that as written, subsection (b) appears to apply to all airfields, even those that are "run for profit." He suggested adding a specific reference, in subsection (b), to the airfields described in subsection (a). REPRESENTATIVE HOLM replied: I think the reason is ... that private or public airfields would fall underneath this release of liability. And the reason being is that there are public airfields that are maintained by private individuals without compensation, and ... we didn't want to limit the ability of somebody to assist the state and feel that their liability is increased. REPRESENTATIVE GARA said he agrees that those individuals volunteering their services should not be held liable. He opined that such would be clarified if, on page 1, lines 12-13, the words were changed to say in part: "A person who is the owner or operator of an aircraft runway, airfield, or landing area described in subsection (a) ...". REPRESENTATIVE HOLM said he would accept such as a friendly amendment to Version D. Number 0552 REPRESENTATIVE GARA made a motion to adopt Amendment 1, to add to page 1, line 13, after "landing area" the words, "as described in subsection (a)". There being no objection, Amendment 1 was adopted. REPRESENTATIVE GRUENBERG suggested that the language currently in proposed subsection (b)(1) would exclude a person from liability - even if the act or omission constitutes gross negligence, recklessness, or intentional misconduct - as long as the runway is not marked with a large "X." Number 0706 TODD LARKIN, Staff to Representative Jim Holm, Alaska State Legislature, in response to questions about a possible duplication of language in proposed subsections (a) and (b), relayed that proposed subsection (a) essentially covers "groomers," whereas proposed subsection (b) is "an additional consideration for owners who are already covered under" proposed subsection (a). He said that it is possible in Alaska for someone - for example, a gold miner or a corporation like Alyeska [Pipeline Service Company] ("Alyeska") - to actually own an airstrip privately and not charge any fees but be on public land. Currently, such persons would be liable to whoever lands on the airfields they maintain even though they receive no compensation. He went on to say: [Proposed subsection] (b) ... specifically speaks to ... negligence and recklessness; if you're that owner or operator [and] you're not charging the fee, that's the important part. And [say you] need to dig a utility ditch across your airstrip ..., you will be grossly negligent or reckless if you don't put an X [on the strip] and notify the FAA [Federal Aviation Administration] that that strip is closed. Now, everybody who wants to land there who's in trouble can go ahead and land, but if they see a big X or read in FAA that you've said your strip is closed, and they crash, that owner who dug a ditch across their [airstrip is] ... not going to be liable: the strip was closed - you landed at your own risk. REPRESENTATIVE OGG offered his understanding that proposed subsection (a) pertains to open airstrips, whereas proposed subsection (b) pertains to closed airstrips. Number 0850 REPRESENTATIVE GRUENBERG disagreed. He offered his understanding that proposed subsection (b) applies to owners, and that "the rule is you're not civilly liable for one of these types of airfields." He surmised, however, that "even if the owner was grossly negligent, the field would have to marked for [he/she] to be liable." MR. LARKIN opined that if the owner closes the field through the two methods listed in paragraphs (1) and (2), then there is no opportunity for gross negligence of recklessness. REPRESENTATIVE GRUENBERG asked, "How about if the ... field is not closed but it is open?" MR. LARKIN replied, "If you have not received compensation, again, without gross negligence or recklessness, you're not liable." REPRESENTATIVE SAMUELS said he assumes that the people who work on the runways for Alyeska Pipeline Service Company are paid, and thus do not fall under the category of not having received compensation. MR. LARKIN said that in the case of Alyeska using its employees to do the work, those employees would be considered assets of Alyeska, and thus would not be liable as individuals because Alyeska would be simply using its assets to improve/maintain its airfield. REPRESENTATIVE SAMUELS referred to the Red Dog Mine, and asked, "If somebody works for Cominco [Alaska] and they go out there and they tell you the breaking action is fine, and Alaska Airlines slides off the runway because the breaking action was nil, is anybody accountable for their actions?" Number 1060 MR. LARKIN said he would defer the question of whether such action constitutes gross negligence to those with legal experience. REPRESENTATIVE SAMUELS said: That would be considered maintaining the runway, but I don't think -- I assume that you're getting after little mining strips here and there, or [if] some guy owns a lodge and gets a bulldozer and he plows a runway, and if some guy happens to land there and he flips over his [plane] ... he can't sue [the lodge owner]. I assume that's what you're trying to get at. But when you said Alyeska Pipeline [Service Company], if you look at Coldfoot and all the pump stations up the line, that's a little different story. REPRESENTATIVE OGG surmised that "compensation" refers to things like landing fees. "But if these folks had [an] airport for their own business and other people landed on it and they're just negligent, they're not liable, but if they're grossly negligent, then they are liable," he suggested, adding his belief that "the same thing" applies under proposed subsection (b): "you're not liable for just negligence, but if you have gross negligence, you're liable even if you marked [the airstrip]." Number 1141 TOM GEORGE, Alaska Regional Representative, Aircraft Owners and Pilots Association (AOPA), said that the AOPA's interest is in preserving a healthy aviation infrastructure, including backcountry airstrips. He relayed that the AOPA supports HB 474, which, he opined, broadens the current statute limiting civil liability on aircraft runways, airfields, and landing areas. The primary goal of [the proposed statutory changes], he suggested, is to protect the backcountry airstrips that [the AOPA's members] rely on for access to Alaska's remote locations; HB 474 should help protect the companies, corporations, and organizations that devote their time and resources, without compensation, to maintaining airstrips across the state. MR. GEORGE said that currently, the statute only applies to an individual person, and the AOPA feels it is necessary to use the broader definition of person so that entities such as mining companies, lodges, and aviation associations are included. He offered that the other changes encompassed in Version D will clarify what activities and situations "this protection" applies to. The AOPA thinks HB 474 is a good step towards protecting airstrips that provide access primarily to public lands, and that protection from liability should help the AOPA find support for keeping those airstrips open and usable in years to come. In conclusion, Mr. George thanked Representative Holm for sponsoring the bill, and relayed that he would be happy to answer any questions from the committee. Number 1219 REPRESENTATIVE GARA, after noting that he'd made a mistake regarding Amendment 1, moved that the committee rescind its action in adopting Amendment 1. There being no objection, the committee rescinded its action. REPRESENTATIVE GARA asked whether it is the intent of the bill to extend the limitation on liability to someone who operates a business and orders supplies, thereby requiring that a delivery plane land on an airstrip being maintained by the business owner. In such a situation, the delivery plane would not be paying a landing fee. MR. GEORGE suggested that the issue is whether the operation of the airstrip is commercial; in other words, is somebody being paid, either by the government or through landing fees, to operate the airstrip. He noted that there are approximately 260 airstrips that the Department of Transportation & Public Facilities (DOT&PF) supports, and those would not be covered by HB 474. Thus it wouldn't matter whether the people landing on the airstrip are doing it as private individuals or as commercial operators. He pointed out that there are FAA regulations regarding what class of aircraft can use what kind of airport, adding that these regulations "would deal with that issue." REPRESENTATIVE GARA asked whether the intent of the bill is to extend the limitation on liability to those who run a commercial airstrip but don't charge landing fees; for example, the Red Dog Mine airstrip. "Assuming that they're not charging any landing fees, do we want to extend this limitation to an airstrip that knows that supply planes are going to come in for a commercial operation," he asked. MR. GEORGE replied: I would argue that we would want to extend it because they are providing a service that the state is not having to pay for. So ... limiting their liability would hopefully be an incentive for them to continue to provide that service. And ... the same case is covered with Alyeska Pipeline [Service Company], where they're operating airports on, as I understand it, public lands, but they're totally paying the cost of maintenance and operation, yet those are open to the public to land on. So I think limiting liability ... in a balanced way ... is a reasonable way to ... [provide] an incentive to continue doing that maintenance function. REPRESENTATIVE SAMUELS asked: "What's the standard that the state follows? ... Is it gross negligence?" REPRESENTATIVE GARA said it is negligence. Number 1475 REPRESENTATIVE HOLM, in response to further comments by Representative Samuels, said that the size or type of the business does not matter; the intent of the bill is to limit liability for those who [maintain airstrips] without compensation, and thereby provide incentive for them to continue. He suggested, however, that if a business makes an assertion that an airstrip is maintained in a certain condition and that is not true, then there might be [a cause of action]. REPRESENTATIVE SAMUELS said that he could understand limiting liability for those who provide this service without compensation. However, companies like Alyeska Pipeline Service Company are getting paid: "that's their job, is to plow the runway or make sure the lights are working or what ever it is [they're] doing - they are being compensating." He offered his belief that such a company should not be liable for any airstrip it built but then abandoned, but it should be liable if it is paying somebody to plow an airstrip or maintain its lighting or approach. REPRESENTATIVE OGG surmised that if a company like Alyeska is maintaining a runway, it then becomes a "person" and so the limit on liability extends to any of its employees because they are a part of the company. The compensation being referred to in the bill, he also surmised, is probably a landing fee, not an employee's paycheck. Number 1625 REPRESENTATIVE GRUENBERG said that when considering whether there has been compensation, the question becomes: compensation for what? For example, is it somebody who is compensated specifically for maintaining the runway? Or is it somebody who is compensated for maintaining the facility? Or is the entity doing the maintaining a profit-making business? The question of what the legislature means by the term, "without compensation" will become the subject of some litigation, he predicted. REPRESENTATIVE HOLM pointed out that the language on page 1, lines 6-7, says in part: "who without compensation constructs, maintains, or repairs an aircraft runway, airfield, or landing area". REPRESENTATIVE GRUENBERG noted, though, that the bill also refers to the owner of "an aircraft runway, airfield, or landing area", and surmised that the target will be the owner of the airfield. Current law refers to situations involving private land, but HB 474 could conceivably refer to situations involving any airfield anywhere, he remarked, and opined that such is much broader than would be good public policy. The bill proposes to immunize airfield owners, and could conceivably be considered precedent for immunizing owners of docking facilities or people who maintain private roads, he added. Number 1769 REPRESENTATIVE GARA said he did not mind limiting liability for those who do something on a volunteer basis, and surmised that that is the goal of the bill. With that in mind, subsection (a) is written fine, he remarked, but coming up with the right language so that subsection (b) has the same effect could be problematic. He added: I would assume that we're essentially trying to get at airfields that are run by noncommercial entities, and for which nobody is receiving compensation. ... I assume we don't want to extend the liability [limitation] to an airfield that a supply plane has to use because they've got a contract with the business that's running the airfield, even though they're not charged a landing fee; I think the supplier should have an expectation that that's a responsibly-run airfield. ... So maybe we can say "a noncommercial airfield operated without compensation". REPRESENTATIVE GARA asked Representative Holm to describe the circumstances that he'd like HB 474 to apply to and which ones he doesn't want it to apply to. REPRESENTATIVE OGG asked whether the definition of "person" could be interpreted to mean state agencies or state corporations. CHAIR McGUIRE noted that "person" is defined in AS 01.10.060(a)(8) as: "a corporation, company, partnership, firm, association, organization, business trust, or society, as well as a natural person". REPRESENTATIVE GRUENBERG offered his belief that none of the members object to having that definition of "person" apply in the bill. However, the bill also eliminates the phrase, "that is located on private land". REPRESENTATIVES OGG and HOLM offered their understanding that that phrase only pertains to closed airports. Number 1947 MR. GEORGE - with regard to the phrase, "that is located on private land", in subsection (b) - said that part of the problem is that most of Alaska is still public land, and so a lot of backcountry airstrips are operated - to the extent that they are operated at all - by miners and lodge owners, and so if they didn't do it, either there wouldn't be access or there would be pressure put on the state to do it. He went on to say: The second part of this bill is about extending that protection from liability in the case where the airfield needs to by closed, and showing how to go about doing that closing. So I guess I think that is a reasonable thing to do and I don't think it takes the lid off Pandora's box in terms of wildly extending the coverage provided by the statute. CHAIR McGUIRE, in response to questions, highlighted the changes proposed by subsection (b) of the bill. REPRESENTATIVE GARA offered his belief that proposed subsection (b), as written, applies to both open and closed airfields, specifically that everything after "a person" on page 2, line 1, applies to closed airfields, and everything up to and including "a person" applies to open airfields. He suggested that the committee should add language to the bill that would limit its effect to airfields that are not part of some sort of commercial operation. Another alternative, he remarked, would be to leave subsection (b) applying only to a "natural person", because that would maintain the current policy that a person who owns an airfield would not be held liable, but corporations that own an airfield could be held liable. CHAIR McGUIRE relayed that HB 474 would be held over for the purpose of allowing the sponsor to address the issues raised. REPRESENTATIVE HOLM offered his understanding that proposed subsection (b) applies strictly to closed airfields, but agreed to look into the issue further. REPRESENTATIVES OGG and SAMUELS agreed with Representative Holm's interpretation of proposed subsection (b). CHAIR McGUIRE suggested that any forthcoming amendments be in writing. [HB 474 was held over.]
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