Legislature(1993 - 1994)
03/05/1993 02:05 PM Senate JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATOR TAYLOR introduced SB 44 (CIVIL LIABILITY FOR SKIING ACCIDENTS) and invited the prime sponsor, SENATOR TIM KELLY, to testify on his bill. SENATOR KELLY reviewed the complaints of others on the bill that it would absolve ski resorts from all liability and is a special interest ski industry bill. He didn't believe the allegations were true, nor did he think the detractors understood the changes that were made since the legislation was introduced, and he explained the changes. SENATOR KELLY listed those in support of SB 44: Municipality of Anchorage, the Alaska Visitors Association, the Alaska Hotel and Motel Association, the United Brotherhood of Carpenters, Anchorage Economic Development Corporation, and Eaglecrest in Juneau. SENATOR KELLY explained how the legislation protected the skiers' safety and the ski resorts from frivolous lawsuits. He said it would encourage further ski resort development. SENATOR KELLY noted there were a number of amendments and asked the indulgence of the committee to examination them carefully. SENATOR TAYLOR indicated a number of people who wished to testify, and he began with CYNTHIA CHRISTIANSON on teleconference from Anchorage. MS. CHRISTIANSON explained she was testifying as an avid skier, as a mother of ski racers, and as a lawyer against the legislation. She conceded the responsibility of the skier for the truly inherent risks of skiing, and she thought skiers should be responsible for their own actions, but the resort should not be relieved of all responsibility. In reading the bill, she noted this lack of responsibility on the part of the resort, and she assailed the bill for what she perceived as the shortcomings. She concluded with an example of her child being lost the same day as the Rizer child died and receiving poor attention from the ski resort. Number 465 SENATOR TAYLOR moved back to Juneau to hear DENNIS MESTAS. MR. MESTAS identified himself as a plaintiffs lawyer with cases against Alyeska, and he claimed the bill was being driven by Seibu, not withstanding what others say. He described Seibu as being a gigantic Japanese ski and resort operation throughout the world. MR. MESTAS portrayed the bill as representing a step backwards with no protection for skiers, and he quoted parts of the Hiibschman decision to determine that skiers should be protected from unforeseeable harm. MR. MESTAS referred to AS 5.45.010 to quote, "(1) a person may not bring an action against a ski operator for an injury resulting from an inherent danger and risk of skiing;" which is the law now; however, in Subsection (2) he quoted, "if a person is injured as a result of an inherent danger and risk of skiing and negligence by the ski area operator, in determining percentages of fault the trier of fact may treat the inherent danger and risk of skiing, as part of the fault attributed to the ski area operator." He described how these apparent conflicting subsections could be used in a court case, with a percentage of fault assigned to an inherent risk, such as a cliff, in assessing the injury. MR. MESTAS expressed his distress and discussed the courts decisions on comparative negligence which didn't include "things." He continued to discuss jury instructions, the percentage of fault, inherent risk in accidents, and comparative negligence. He summarized the bill as delineating specific duties for a ski area and to insulate them from other duties. MR. MESTAS said he had provided some material to the committee as to the specifics of the duties of the ski area to warn skiers about hazards and inherent risks. He read the footnote on the Hiibschman decision on page 1360, "A risk must be necessary to be an inherent risk of the sport. The question is whether a risk is necessary as it relates to the operator's duty, if a given danger could be eliminated or mitigated through the exercise of reasonable care, it is not necessary." MR. MESTAS said, since Eaglecrest had supported the bill, he provided to the committee the Eaglecrest safety and operations plan, which indicates the ski operators are duty bound to have a plan of action and protection. He asked to have the following read into the record: "Hazard Marking - There are still many who refuse to seriously consider hazard marking because of their belief in the long outmoded concept that the marking or padding of one object or obstacle that has the potential to become a hazard, means that the area operators are some how obligated to mark or protect all objects or obstacles, regardless of their potential to become a hazard to the reasonable, prudent skier. It is essential that area operators focus on the standard of ordinary and reasonable care by which they will often be judged in determining whether or not they should have marked or identified particular hazards. Area operators must adopt an evaluation approach to hazard identification, such an approach mandates that the operator views his ski area through the eyes of the so called reasonably prudent skier, skiing in control, attempting to appreciate the visibility factors, which change with variations in surface conditions, light, and weather. A skier has, or should of had, notice of the presence of the obstacle, so he can take the necessary evasive or corrective action to avoid it. The combination of sufficient warning and appreciation of potential danger, keeps the obstacles from becoming a hazard. The often cited position, if you make an obstacle, you must mark them all, does not reflect a thought process, and should not be used as a policy." He summarized the remainder of the language dealing with the protection of the public." MR. MESTAS directed attention to page 8 of the bill for items to be marked and those not marked. He indicated Subsections (4), (5), and (6) were added in the Labor and Commerce Committee. Number 553 MR. MESTAS said the original bill did not provide for marking man-made structures, but he pointed out in (4) some man-made structures that are exempted but reinstated in (6). He outlined the confusing aspects he noted in SB 44, and he quoted the Hiibschman decision again to make his point about hazards and grooming. MR. MESTAS directed attention to page 12 and the definition of "inherent danger and risk of skiing," which lists all of the inherent dangers and risks of skiing, including man-made structures installed by the ski slope operators. He next pointed to the contradiction in the list which "does not include the negligence of a ski area operator..." He stated it would be a defense attorney's dream and a courtroom nightmare, and he gave other evidence of unbalance in the bill, including a review of the warning sign on page 9. MR. MESTAS said the bill was a direct attack on the jury system, and he described the role of summary judgement in any injury claim. TAPE 93-21, SIDE B Number 001 MR. MESTAS claimed the bill was an attack on fundamental rights and should be taken seriously. He accused the bill of depriving a person of a jury trial, and he explained how this would be done. SENATOR TAYLOR asked for specific amendments, and MR. MESTAS asked for a few extra days to submit some amendments focused on the provisions he named. SENATOR TAYLOR asked for the number of suits brought against ski areas in Alaska, and MR. MESTAS reviewed about three cases including the one he represented, BART RIZER. MR. MESTAS said SB 44 would insulate Seibu from avalanches, and he gave a possible scenario. He presented information from the forest service through their federally mandated plan. He charged the bill would put Alaska in direct conflict with the federal government, at least as to U.S. Forest Service land that is being used by Alyeska, because there are rules and regulations already in effect. SENATOR LITTLE asked to see MR. MESTAS' amendments. SENATOR TAYLOR clarified that MR. MESTAS was representing the estate of BART RIZER and the parents of BART RIZER against Seibu. SENATOR TAYLOR asked for the facts of the case, and MR. MESTAS explained the circumstances that led to the death of BART RIZER. He described the weather conditions of the ski bowl at Alyeska, the lack of grooming, and the unmarked stream bed filled with powder snow and frozen waterfalls, into which BART skied. According to the death certificate, he died of hypothermia. MR. MESTAS claimed it took the rescue crew three hours to get to the accident site even though it was known to his skiing companion. He said the search and rescue operations had left the hill at Alyeska, and he outlined other negligent problems with the management of the ski area. He said the Employee Safety and Grievance Committees has been dissolved so procedures have been lost. Number 072 SENATOR KELLY said the bill was an attempt to be sure what MR. MESTAS described would never happen again, and he claimed there were provisions in the bill to force Alyeska to follow proper rules and regulations. MR. MESTAS explained that under the operations plan they have to follow the present rules of the United States government. He expressed concern there was no reference in the bill to specific plans or standards set equal to the present plans of Alyeska and Eaglecrest, with which he has no problem. SENATOR TAYLOR asked MR. MESTAS for his opinion on the provisions in the bill. MR. MESTAS said the bill was very specific as to the duties but tries to sweep many duties out the door. He said the law and the plan they have to follow is a general, broad set of duties which lacks some of the important duties. SENATOR TAYLOR asked if the same accident could occur under SB 44, or what changes would have to be made. He reviewed some of the description from the accident and asked if the hazards, as described, were inherent hazard. MR. MESTAS explained, under SB 44, the Rizer family, or any other situated family, could not sue Sabu, and he explained the pertinent provisions. SENATOR TAYLOR turned next to MR. FRED TURTON, the program director for the Juneau Ski Club, for his testimony. MR. TURTON described his ski background as a level 3 certified alpine coach for the United States Ski Association, a full certified instructor of PSIA, a member of the Western Region Alpine Committee and holds membership in several membership and development committees, including those in Alaska. In addition, he is a member of the United States Course Approvals Committee, which oversees the providing of safe and fair courses for competition throughout the United States and internationally. As well, he is a full certified official, a licensed FIS technical delegate, and current ranking official in Alaska. MR. TURTON said he was here to fully support the bill, and he distanced himself from being a lawyer. He explained, as a coach, he was to provide challenge for young athletes, and the best teacher was the mountain. He outlined the difference in skiing in Alaska and any other place in the United States. MR. TURTON said he encouraged the youngsters to ski off the groomed slopes, into the glades, the trees, off cliffs, and into the open bowl areas. He spent some time describing his training programs in Alaska as being dramatically different with a variety of conditions. Number 195 MR. TURTON stressed teaching personal responsibility by the youngsters as well as fitness, and he said the bill shouldn't be left to the lawyers to decide responsibility. He urged a close look at alpine ski racing, and he described the unique conditions under which they train. In contrast, he described what he considered over-groomed slopes for Olympic skiing for some of the races. SENATOR DONLEY said he didn't understand, and MR. TURTON asked for more time to plead his case for un-groomed slopes and against protected skiing. He railed against the increase in the cost of lift tickets and the decrease in skiing freedom. MR. TURTON described skiing as having evolved dramatically in the last 50 years, and he thanked the ski areas for both himself and his athletes. He expressed concern that more and more, lawyers dictate how he could enjoy the sport. Number 232 SENATOR TAYLOR thanked MR. TURTON and asked for questions. SENATOR DONLEY asked MR. TURTON for some of the particulars of his occupation, and he described his relations with the Juneau Ski Club, a non-profit organization. SENATOR TAYLOR asked MR. TURTON what freedoms had been taken away from him by the current laws, and MR. TURTON explained he had watched many of the areas he had skied in the past - closed. At SENATOR TAYLOR'S probing, MR. TURTON describe his years spent in Jackson Hole, Wyoming. Due to minor changes in snow conditions or visibility, the area has been closed because of possible lawsuits. He expressed his belief that the attitude about the type of training he provides has changed. He finds limitations in the type of assertive training he provides, and the amount of speed that may not be available to the youngsters in a controlled environment. He spoke of these as limiting choices and training. MR. TURTON reported on his conversations with PAUL SWANSON, who manages Eaglecrest, that should we not have responsibility for our own actions, he may not have a choice but to place restrictions on the training program. He discussed his relationship to the Eaglecrest ski area. Number 278 SENATOR TAYLOR pushed for a reason, and MR. TURTON described the structure of their non-profit organization. He expressed his concern for the health and freedom for the sport of skiing in his conversations with MR. SWANSON. He lamented not being able to provide ski races that didn't cost a great deal of money and he blamed lawyers and insurance companies for meddling in the ski racing arena. SENATOR DONLEY asked if the sport of skiing was safer now. MR. TURTON said it was a different type of safety, and he cited several examples of ski slope grooming, ski boot design, and stress on skiers. He denied knowledge of catastrophic injuries, but he has had students who suffered injuries. SENATOR DONLEY discussed injuries and safety with MR. TURTON, who expressed the exhilaration of skiing, but didn't urge everyone to do rapid skiing. He did think it was all part of the challenge - like fine tuning a race car. SENATOR DONLEY queried MR. TURTON about the responsibility for accidents, and MR. TURTON spoke about the very responsible people in the sport of skiing. He thought any ski injury was because of the inherent risk of skiing. Number 352 SENATOR TAYLOR clarified that in his 30 years of skiing, MR. TURTON had never seen a lawsuit that won. MR. TURTON narrowed that to the racing arena, but he has seen his insurance rates go from $3 to $50. They discussed all facets of the soaring rise in the cost of insurance, membership fees, and equipment. SENATOR TAYLOR was concerned about the number of skiers at Eaglecrest who had suffered injuries during the season, but MR. TURTON had no knowledge of the injuries, nor was he aware of any suits. PAUL SWANSON introduced himself and answered SENATOR TAYLOR'S question about possible suits as one pending suit. There was a general discussion of possible suits, and SENATOR TAYLOR said he wanted to know the extent of the problem. Number 419 SENATOR DONLEY said he understood the athletic mentality for the thrill of pushing to the extent of their ability, but he was concerned about the casual skiers, who are not in shape. He said these people should expect reasonable protection, but he thought MR. TURTON'S students were different in their approach to skiing. MR. TURTON reiterated his concern that any changes to the skiing terrain creates a logistical nightmare for the staff, and he reviewed the bill in terms of less change. SENATOR TAYLOR said he was concerned about excessive marking, too, and he thought they were setting up ski operators to constantly patrol the slopes to comply with current legislation. Number 514 MR. TURTON explained ski racing was governed by a strict set of rules and not an easy arena, and he further explained that adhering to those rules was his first order of business. He spoke for clear delineation of the rules. SENATOR LITTLE apologized for missing his testimony and expressed concern the legislation would make the public less safe. SENATOR TAYLOR thanked MR. TURTON again and said he had heard of his wonderful coaching. TAPE 93-22, SIDE A Number 001 SENATOR TAYLOR asked MR. TURTON for any additional comments, and MR. TURTON reported that CHRISTIE HERRON was unable to testify. They agreed she was supportive of the legislation. SENATOR TAYLOR noted he would continue taking testimony on the SB 44, but the mark-up on the bill would be later. He next called on MR. SWANSON, formerly identified as the manager of Eaglecrest, to testify. MR. SWANSON listed the ski organizations with which he was associated and for whom he spoke in support of SB 44. He pointed out that in all sports there are inherent risks, and he named quite a few. He thought the legislation clearly defined the responsibilities of both the skiers and the ski operators and would help the small ski operators. He reported that 14 other states had adopted the inherent risks of skiing. He reviewed the wishes of skiers as to groomed or un-groomed slopes, but declared the mountain couldn't be completely manicured. Number 092 SENATOR TAYLOR continued to discuss examples of an attractive nuisance and an inherent risk. He referred to page 12, lines 10 and 11, to talk about stairs going into the Eaglecrest Lodge, which is a man-made structure. SENATOR TAYLOR discussed with MR. SWANSON whether he would be able to sue Eaglecrest under this provision in the bill. MR. SWANSON said he looked at hydrants as snow-making hydrants and other man-made structures as lift towers and signs. SENATOR TAYLOR said he wanted to find something that works, too. He gave an example of a lift tower at Alyeska that has invisible damage and collapses. Under the definition of inherent danger and risk of skiing, an injured person could not sue. MR. SWANSON had been thinking more about collision with man-made objects, which he interpreted a skier colliding with something. They agreed it was confusing. MR. SWANSON said SB 44 was a copy of the Colorado bill, with some changes. SENATOR TAYLOR asked MR. SWANSON if he knew of a time when Eaglecrest was successfully sued, and he said Eaglecrest had been very fortunate, but he knew there had been a death some years ago. Number 185 MR. SWANSON knew of cases where Eaglecrest paid some medical bills but no suits. SENATOR TAYLOR asked if their insurance carrier had spoken to him about SB 44, and MR. SWANSON said he had given their carrier a copy of the bill, but there had been no response. MR. SWANSON offered to take any interested person on a tour of Eaglecrest, and SENATOR TAYLOR praised the operation and his attendance. SENATOR TAYLOR asked MIKE FORD, the drafter of SB 44, for his opinions. Number 223 SENATOR TAYLOR referred to an opinion from MR. FORD in January for REPRESENTATIVE MARK HANLEY and asked for clarification on "This draft probably does not change the law as set out in Hiibschman." MR. FORD explained that Hiibschman did not make the law, but interpreted the law as enacted by the Legislature some years ago. He further explained that present law provides that the ski area is not liable for inherent risks of skiing, and that SB 44 simply elaborates on that law. MR. FORD said the legislation enacted consistent duties for skiers and for ski area operators. In addition, it changes the definition of an "inherent danger and risk of skiing." He explained the Hiibschman case looked at our existing law and applied the case "for an inherent risk, the ski area is not liable; if the ski operator is negligent, they are liable." He thought the problem was in distinguishing between the two that causes the problem. MR. FORD portrays SB 44 as defining those duties for the ski area operator and for the skiers, as well - and not reinventing the wheel. MR. FORD didn't believe the bill changed the Hiibschman case, and he explained the definition of "inherent risk" in the bill did not mention the key finding that "ski jumps are not on the list." Now, it will be up to the jury to decide if a ski jump is an inherent risk. SENATOR TAYLOR clarified the question of liability would still go to the jury, and the ski operators would not get out from under the case on a motion for summary judgement. MR. FORD further clarified it with "... if there was evidence of negligence." They continued to discuss the evidence of negligence, summary judgement, and litigation in relation to the inherent risk of skiing. SENATOR TAYLOR asked him to speak to the questions from MR. SWANSON and MR. TURTON about the narrowing of their right to ski. Number 314 MR. FORD expanded his remarks to explain it does change the law, but it is not a fundamental change in the existing system. Ski operators are still liable for negligence under the existing law - and the proposed law. He reiterated the changes in the definition for "inherent risk," and he reviewed the key issue for the Legislature - to decide how to balance the changes. In addition, he also expanded the importance of a ski area plan, and the political entities involved - such as the U.S. Forest Service or the Bureau of Land Management. SENATOR TAYLOR quoted MR. TURTON'S concerns, and to some extent those of MR. SWANSON, about the unwanted grooming of slopes, which would ruin the thrill of unfettered recreation. SENATOR TAYLOR expressed the apprehensions of others that if standards aren't established, there would be blanket immunity given to the ski operators, so they couldn't be sued by anyone for damages. He thought there were two extreme points of view on the legislation. MR. FORD, who has skied throughout the state, thought there had been giant strides made in the improvement of the ski slopes. He also thought some of the improvements had blunted the extreme end of skiing, where wild places had been tamed, which might be an inhibiting factor. SENATOR TAYLOR clarified with MR. SWANSON the risk of falling through the stairs at the ski lodge, and MR. FORD agreed. MR. FORD concluded with a thorough review of groomed v. un- groomed slopes with ever changing conditions, and they discussed the marking provisions of both. SENATOR TAYLOR apologized to the participants on the teleconference network in Anchorage: BRUCE & PATTI RIZER, LORI MAPE, SUSAN LOWE, PAUL BROOKS, MATT SUNDERLAND, MARC BOND, and ROBERT GIGLER. He promised a mark-up session on the bill as soon as possible.
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