Legislature(1993 - 1994)
03/31/1993 01:55 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 returned CS FOR SENATE BILL NO. 44(JUD) (CIVIL
LIABILITY FOR SKIING ACCIDENTS) to committee and noted the
sponsor, SENATOR KELLY, was present.
SENATOR TAYLOR turned to the teleconference network to invite
ANNIE WILLIAMS, the Legislative Officer for the Municipality
of Anchorage, to testify.
Number 059
MS. WILLIAMS said the municipality supported the legislation;
however, she referred to page 5, lines 1 through 11 and asked
to have that section amended to provide for rope tows that
do not transport skiers more than 500 vertical feet.
SENATOR TAYLOR clarified her testimony dealing with the
standards as set by the National Ski Patrol and explained the
committee substitute included the provisions she wanted.
MS. WILLIAMS did not have the draft he identified, so SENATOR
TAYLOR directed a copy of CS FOR SENATE BILL NO. 44(JUD) to
be faxed to her in Anchorage. He asked her to report back to
committee on the changes that have been made, if she was not
satisfied.
(There was a pause in the proceedings.)
Number 134
SENATOR LITTLE moved to amend SB 44 to insert on page 4, line
6, after "chapter" , a provision of a ski area plan, or a
regulation adopted by the Department of Labor under AS
05.20.070 is negligent and civilly liable to the extent the
violation causes injury to a person or damage to property.
SENATOR KELLY objected to the amendment, and SENATOR LITTLE
thought the amendment would be helpful because many items in
the ski area plan were critical in nature and should be
followed.
MR. BOND said the bill already requires the ski operator to
prepare and implement the plan throughout the season. He was
concerned it would have the effect of being a statute, and he
predicted area operators would pare down their operation
plans, because whatever they write in their plan would be an
obligation.
SENATOR TAYLOR clarified it would define at what stage it is
inherent risk or negligence, and MR. BOND said it would make
a different standard of negligence for each skier. They
discussed the implementation of such a plan.
SENATOR KELLY explained the object of the plan was to provide
safety for the skier, and he agreed the operators would have
the smallest operational plan possible.
Number 197
SENATOR LITTLE debated her understanding that terrific plans
existed in place, but critical parts of the plan were not
being implemented, and she defended her amendment which would
require implementation.
SENATOR KELLY also thought the plans should be implemented,
and he noted it was on page 5, (a). He added the ski areas
were presently not specifically required to implement them.
SENATOR TAYLOR checked the teleconference network to contact
DENNIS MESTAS, who had submitted some proposed amendments to
SB 44.
SENATOR TAYLOR reviewed SENATOR LITTLE's amendment for MR.
MESTAS, who agreed with her amendment.
There being no objection from committee members, SENATOR
LITTLE's amendment was passed.
Since MR. MESTAS was not physically present, SENATOR TAYLOR
presented each of his amendments for consideration. He said
he would give MR. MESTAS a chance to explain his amendments,
and MR. BOND a chance for rebuttal.
Number 260
SENATOR TAYLOR moved to adopt Amendment 13, MESTAS, on page
3, lines 15 through 23.
MR. MESTAS explained the purpose of the amendment was to
eliminate superfluous language dealing with the supreme court
opinion.
There was some discussion with MR. MESTAS as to the scope of
his amendment, and SENATOR TAYLOR determined there were
actually two different amendments, hence, the proposed
amendments became 13A and 13B.
After clarification, SENATOR TAYLOR moved to adopt Amendment
13A on page 3, lines 14 and 15 to delete [,AS INTERPRETED BY
THE ALASKA SUPREME COURT IN HIIBSCHMAN V. CITY OF VALDEZ, 821
P.2d 1354, (ALASKA 1991)].
MR. BOND explained the relationship of the bill to the supreme
court decision in Hiibschman v. City of Valdez with inherent
risk injuries. He quoted JUSTICE EDMOND BURK pondering the
meaning of the decision as being extraordinarily unclear. MR.
BOND said the statement, MR. MESTAS wishes to delete, is
critical.
Number 337
SENATOR LITTLE asked MR. MESTAS to respond to the statement
by MR. BOND. MR. MESTAS gave his interpretation of the
Hiibschman Decision as containing a lot of law, and he
defended his understanding of the decision about inherent
risks and man-made structures.
SENATOR TAYLOR quizzed both attorneys on the accident that
brought about the Hiibschman case, the indecision by the
supreme court, and the remanding of the case back to the
superior court for a finding in the inherent risk of skiing.
Number 372
MR. BOND explained the court decided they couldn't determine
whether it was a man-made jump or a natural feature of the
hill, and he described the accident as to the type of risk.
SENATOR TAYLOR asked MR. MESTAS for his opinion, and MR.
MESTAS explained his understanding the ski area was directly
involved in creating the jump.
SENATOR JACKO objected to Amendment 13A, and in a vote the
amendment failed.
SENATOR TAYLOR moved to adopt Amendment 13B, MESTAS, on page
3, lines 22 and 23, to delete Subsection (4).
SENATOR JACKO objected for an explanation.
MR. BOND explained the subsection as being an important
statement regarding the legislative intent of the bill, and
he defended the importance of the language.
MR. MESTAS explained the subsection was unnecessary because
it already was the law, and there was no need to restate it.
Number 419
With consent of committee, SENATOR TAYLOR withdrew Amendment
13B.
SENATOR TAYLOR moved to adopt Amendment 14, MESTAS, on page
3, lines 30 and 31, and on page 4, lines 1 and 2, to delete
Subsection (2).
SENATOR JACKO objected for an explanation, and SENATOR TAYLOR
called on MR. MESTAS.
MR. MESTAS said this amendment was one of the most critical.
He explained why it was unworkable in the instruction of a
jury on the law of negligence, and how it differed from the
present law on negligence. He suggested a percent of injury
would be attributed to every part of the ski area, and he
described how absurd that would be.
MR. BOND agreed with MR. MESTAS' explanation and explained
why.
There being no objection, SENATOR TAYLOR announced Amendment
14 passed.
SENATOR TAYLOR moved to adopt Amendment 15, MESTAS, on page
5, lines 2 through 10, which would delete (a), (1) and (2) of
Section 05.45.040. SENATOR JACKO objected for sake of
discussion.
Number 461
MR. MESTAS questioned the elements of the plan of operation
and by whom would it be implemented and regulated. Rather
than deleting the specified subsections, MR. MESTAS decided
rather to insert additional language which would increase the
stringency of the operating plans after the word, "aid," on
line 6. He thought there didn't appear to be adequate public
comment on what was going to be in the operating plan.
The sponsor of SB 44, SENATOR KELLY, stressed the Department
of Public Safety did not wish to be involved, and SENATOR
TAYLOR entertained a motion to delete Public Safety and
substitute the Department of Natural Resources. He was
informed this had been done.
SENATOR LITTLE and SENATOR TAYLOR discussed who would be
responsible, and SENATOR TAYLOR emphasized there had to be
some responsible agency.
Number 508
MR. BOND explained that ski operation plans were highly
individualized, and he objected to regulations that would
apply to all ski areas in the State of Alaska. He preferred
to see the plans tailored to specific ski areas, and he had
some problems with the definition of stringent. He suggested
the regulations should be left to the Department of Natural
Resources with their expertise.
SENATOR LITTLE expressed concern that with the amendment, ski
operators could pare down their area operation plan. MR. BOND
surmised area operators would do the absolute minimum, and he
thought the Department of Natural Resources should review the
plans for changes each year.
MR. MESTAS cited (c) on line 19, as specifying the state would
not be liable for civil damages resulting from review and
approval of the operation plan. He asked the record to
reflect it would be a misinterpretation of Subsection (c).
MR. BOND said (c) was recently added by the committee.
SENATOR JACKO maintained his objections, and Amendment 15
failed on vote. SENATOR TAYLOR expressed his difficulty with
the word, stringent, also.
SENATOR TAYLOR moved to adopt Amendment 16, MESTAS, on page
8, lines 22 through 31, which would revise Subsection (4) on
line 22.
MR. MESTAS described what he considered mixed messages to the
public on the marking of "man made structures," and he was
concerned there was some limit in the responsibility of man-
made structures. He had some problems with the definition in
what he considered the "natural" variations on the slopes.
SENATOR TAYLOR was skeptical over the object of MR. MESTAS'
amendment, and SENATOR LITTLE asked about the removal of the
portion he had faxed to the committee, beginning with "natural
variations," inserted after "include" on line 29.
SENATOR LITTLE asked if he planned to eliminate the last
section of Subsection (4), and KENNY LEAF, aide to SENATOR
TAYLOR explained why he had underlined the last part of (4).
Number 577
SENATOR TAYLOR quizzed MIKE FORD, the drafter of SB 44, about
the section in question. MR. FORD suggested that MR. MESTAS
was trying to clarify the section by adding "natural" before
variations on line 29 and put a ; after terrain.
TAPE 93-34, SIDE B
Number 001
MR. FORD explained, if the committee wanted to change the
exclusion, the remainder of the sentence could be deleted.
SENATOR TAYLOR checked the changes on the work draft, and
SENATOR LITTLE asked MR. MESTAS if he intended to add, on line
22, after "water pipes," roads, catwalks, and terrain
modifications. MR. MESTAS said he did make the additions on
line 22.
SENATOR TAYLOR clarified Amendment 16 on line 22 and line 29.
MR. BOND reviewed the hazards of skiing, including man-made,
with the redesigning of contour slopes for easier access for
various reasons. He claimed the bill already requires the
marking of some physical objects, and he referred to MR.
MESTAS ' proposed amendment on page 9, lines 5 through 7. MR.
BOND envisioned a sea of bamboo if the amendment was allowed,
and he gave an example from the Alyeska Resort.
SENATOR DONLEY reviewed the arguments and added his own for
safety on the ski slopes. He expected the hazards to be
marked, especially since he was spending a large amount of
money to ski. He thought marking hazards was the only
redeeming feature of the bill, but he thought the bill was
lacking in the protection of public policy.
SENATOR TAYLOR called for questions on Amendment 16, and on
a 3-2 vote, the amendment passed.
Number 068
SENATOR TAYLOR offered Amendment 17A, on page 9, lines 1
through 4, and asked MR. MESTAS to explain his amendment.
MR. MESTAS explained the amendment would change the word,
"groomed," after "located on," to open, on line 2, and he
explained his reasons. He claimed the most hazardous spots
are on the un-groomed runs at Alyeska, and he thought there
was no rationale for not marking un-groomed runs.
MR. MESTAS explained the present language would severely
downgrade the responsibility of Sabu at Alyeska, where they
are presently required to mark hazards without limitation to
groomed runs, as well as hazards on their primary and open
runs.
MR. BOND said there was no possible way to mark all of the
natural hazards on the entire mountain, and he described how
the terrain can change quickly with the variety in weather.
He thought marking groomed runs made a substantial burden on
the area operator, and the operators would not be able to
comply with the amendment.
MR. MESTAS said that philosophy would mean the committee was
wasting time with the entire bill, and he suggested a good
common sense marking policy such as in Appendix J of the
Eaglecrest Plan would be best. He said hazards should be made
reasonably visible before they were hit.
Number 129
SENATOR TAYLOR suggested MR. MESTAS had raised an interesting
point, and he was bothered by MR. BOND's comments on grooming.
MR. BOND said the desire for grooming was driven by the
demands of the skier population, so area operators were going
to groom no matter what, and he described how a grove of trees
would need to be marked as the weather changed on a minute by
minutes basis.
SENATOR TAYLOR and MR. BOND discussed what hazards would need
to be designated with bamboo markers.
SENATOR TAYLOR reviewed Amendment 17A, and it passed the
committee. Without objections, so ordered.
SENATOR TAYLOR moved to adopt Amendment 17B, MESTAS, on page
9, lines 5 through 7, which would delete [(C) MARK ROADS,
CATWALKS, OR OTHER TERRAIN MODIFICATIONS THAT ARE NOT READILY
VISIBLE TO SKIERS UNDER CONDITIONS OF ORDINARY VISIBILITY FROM
A DISTANCE OF AT LEAST 100 FEET;].
MR. FORD explained the previous amendment now makes this
provision unnecessary.
SENATOR TAYLOR announced Amendment 17B had passed committee.
Without objections, so ordered.
SENATOR TAYLOR moved to adopt Amendment 18, MESTAS, on page
9, lines 9 through 31, and asked MR. MESTAS to explain his
proposed amendment.
Number 177
MR. MESTAS said he was suggesting by Amendment 17 that, first
of all, a correct statement of the law be made to people who
are reading the sign, since, he contended, the present form
of the warning is not correct under this bill, nor the law as
it was previously. He said skiers are going to be told by the
legislature that virtually under no circumstances can they
ever recover from a ski area. He suggested the legislature
was mandating legal advice and would be responsible in the
event of an accident.
SENATOR TAYLOR asked for MR. BOND's response. MR. BOND said
the warning sign was displayed in every ski area in Colorado
and was generally uniform across the country. He denied it
was legal advice, but he said was information about the
inherent risks of skiing. He said it was to inform a person
before they become a patron that there are certain inherent
risks listed by the legislature in the statute. He said they
could then choose whether or not to incur those risks, and he
compared it to warning labels on tobacco products.
MR. BOND offered an alternative borrowed from the current
Minnesota proposal which would require operators to provide
skiers with a full copy of the statute upon request and would
inform the patrons fully, not piecemeal such as suggested in
the bill.
In playing the devil's advocate, SENATOR TAYLOR reviewed the
proposed warning supported by MR. BOND in the legislation,
which would prohibit a skier from recovering from a ski area
operator for an injury resulting from a list of inherent
dangers and risks of skiing. He asked MR. BOND why it
wouldn't be fair to tell the skiers from what things they
could recover.
MR. BOND explained why it would be unacceptable to the
industry, and he argued it would be an invitation to sue. He
blamed MR. MESTAS for wanting an open invitation to sue ski
area operators. MR. BOND then suggested saying, "Under Alaska
law the risk of an injury to a person or property resulting
from an inherent danger of risk of skiing rests with the
skier, and inherent risks include ...." He thought this would
get away from the accusation of legal advice. With this, he
also suggested having copies of the statute available for any
patron who wants it. He reiterated his objection to putting
an invitation to sue on a sign board beside a chairlift.
SENATOR TAYLOR corrected MR. MESTAS' amendment to include the
word "solely," after the word, "resulting" in two places on
lines 24 and 26, and he checked with MR. MESTAS, who said he
was correct.
SENATOR LITTLE asked MR. MESTAS about an inconsistency in the
language in the warning sign and how it related to flagging.
Number 247
MR. MESTAS pointed out other inconsistencies in SB 44 which
seemed to be an invitation to a suit and not a correct
statement of the bill.
SENATOR JACKO questioned MR. BOND's statement of providing
skiers with a copy of the statute, and SENATOR TAYLOR relayed
his statement to MR. MESTAS.
MR. MESTAS suggested posting the law rather than giving an
incomplete statement of the law, but he objected to MR. BOND's
suggestion of making the statutes available. He said there
should be a correct statement of the risk, which he thought
was MR. BOND's warning to skiers. MR. MESTAS still contended
the warning statement in the bill was inaccurate.
SENATOR JACKO suggested skiers would need to bring along an
attorney to interpret the statute, and the committee members
agreed it was complex.
SENATOR LITTLE said she was not in favor of providing a
statute to the skiers, and she quoted SENATOR JACKO as to the
confusion of such actions.
SENATOR LITTLE moved to adopt an amendment to Amendment 18 to
insert "visible" before "bare spots," on line 28, before
"rocks," and before "stumps." SENATOR TAYLOR discussed the
drafting of her amendment with MR. FORD, and the amendment
to Amendment 18 passed. Without objections, so ordered.
After some discussion, SENATOR TAYLOR announced Amendment 18
had passed. Without objections, so ordered.
SENATOR TAYLOR moved to adopt Amendment 19, MESTAS, page 11,
lines 11 through 13, to delete the last line of Section
05.45.100(a). He explained MR. MESTAS' argument and asked for
MR. BOND's rebuttal.
MR. BOND clarified the present legislation would encourage
litigation between the skiers rather than the ski area, a
collision would be an inherent risk of skiing, hence, no
liability on the part of the ski area for such a collision.
He reviewed the skier's responsibility as outlined on page 11
in Section 05.45.100(b). He reiterated his opposition to the
amendment.
Number 335
After a vote, SENATOR TAYLOR announced Amendment 19 had passed
the Judiciary Committee, which deleted lines 11 through 13 on
page 11. Without objections, so ordered.
SENATOR TAYLOR moved to adopt Amendment 20, MESTAS, on page
20, line 5, to insert "rebuttable" before the word
"presumption." Without objections, so ordered.
SENATOR TAYLOR moved to adopt Amendment 21, MESTAS, on page
12, line 31 and on page 13, line 1 through 12, which would
delete the definition of "inherent danger and risk of skiing,"
and substitute another definition. SENATOR TAYLOR asked MR.
MESTAS to explain the definition change.
MR. MESTAS said his object in offering the amendment was to
achieve simplicity as opposed to the present definition which
he described as confusing and unworkable for any jury or
judge. He quoted the language from the Hiibschman decision
as to the definition of inherent risk reflected in his
language in the amendment.
MR. BOND accused MR. MESTAS of being selective in quoting
parts of the Hiibschman decision, and he reviewed parts in the
decision which listed the inherent risks. He said the list
was very important and had to be there.
Number 409
SENATOR LITTLE expressed confusion at MR. BOND's comments, and
she quoted some of his comments.
MR. MESTAS praised SENATOR LITTLE as defining the problem of
previous hazards, and he suggested there should be consistency
with the previous provisions of the bill as to the ski area
liability.
SENATOR TAYLOR announced the passage of Amendment 21. Without
objections, so ordered.
SENATOR TAYLOR discussed with GRETCHEN PENCE, Special
Assistant for the Department of Public Safety, on page 5, line
8, the change of responsibility from the commissioner of
Public Safety to the commissioner of natural resources.
SENATOR LITTLE asked if there would be any changes in the
fiscal note in relation to changes made by the committee.
SENATOR TAYLOR concluded there would be no fiscal impact.
SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 44(JUD),
as amended, out of committee with individual recommendations.
SENATOR DONLEY objected. The roll was taken with the
following result: Senators Little and Halford voted "Yea" and
Senators Donley and Taylor voted "Nay." The Chairman stated
the motion to move the bill out of committee had failed.
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