Legislature(2007 - 2008)BELTZ 211

02/20/2008 01:30 PM Senate JUDICIARY


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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ HB 25 RECREATIONAL LAND USE LIABILITY/ADV. POSS TELECONFERENCED
Heard & Held
+ HB 182 OFFERING PROMOTIONAL CHECKS TELECONFERENCED
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
= HB 197 TRUSTS
Moved HB 197 am Out of Committee
        HB  25-RECREATIONAL LAND USE LIABILITY/ADV. POSS                                                                    
                                                                                                                              
1:35:19 PM                                                                                                                    
CHAIR FRENCH announced the consideration of HB 25.                                                                              
                                                                                                                                
REPRESENTATIVE PAUL SEATON, sponsor of  HB 25, explained that the                                                               
bill encourages  the expansion of recreational  opportunities for                                                               
Alaskans by  increasing liability  protection for  landowners who                                                               
allow free  recreational use of  their land. This is  achieved by                                                               
raising the standard  of care that a landowner  owes for allowing                                                               
someone to use  their land. The bill provides  immunity from suit                                                               
unless  there is  gross  negligence,  intentional misconduct,  or                                                               
reckless endangerment. HB  25 is consistent with  practices in 45                                                               
other states.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  SEATON said  that the  current simple  negligence                                                               
liability  standard applies  to unimproved  land. That  generally                                                               
makes  landowners uncomfortable  and the  result is  that they're                                                               
more  inclined to  restrict access  to their  land. He  clarified                                                               
that  this bill  does not  address landowners  who charge  to use                                                               
their  land and  it does  not apply  to municipalities  and other                                                               
governments. He highlighted letters  and resolutions from diverse                                                               
groups and private citizens supporting HB 25.                                                                                   
                                                                                                                                
1:37:04 PM                                                                                                                    
SENATOR THERRIAULT joined the meeting.                                                                                          
                                                                                                                                
SENATOR HUGGINS asked how airstrips are treated.                                                                                
                                                                                                                                
REPRESENTATIVE SEATON  explained that  current law says  that for                                                               
abandoned  airstrips and  unimproved  land the  standard for  the                                                               
private  landowner is  gross negligence,  intentional misconduct,                                                               
or reckless endangerment.                                                                                                       
                                                                                                                                
SENATOR HUGGINS  asked about the  hypothetical scenario  where he                                                               
allows free use of a snow machine track on his property.                                                                        
                                                                                                                                
REPRESENTATIVE  SEATON  explained  that  as long  as  you  aren't                                                               
charging and you aren't grossly  negligent you aren't liable. But                                                               
if you were to  put up a cable across the  trail and someone were                                                               
to get  hurt as  a result, that  would be  intentional misconduct                                                               
and you'd  be liable. But  if someone is accidentally  hurt while                                                               
using the snow  machine track or getting ready to  use the track,                                                               
the gross negligence standard would apply.                                                                                      
                                                                                                                                
1:41:30 PM                                                                                                                    
SENATOR HUGGINS  asked if  he could  subsequently deny  access to                                                               
that hypothetical snow machine track.                                                                                           
                                                                                                                                
REPRESENTATIVE  SEATON said  he  could. He  added  that the  bill                                                               
specifically  protects  landowners  from  adverse  possession  or                                                               
prescriptive easement  claims by  someone using the  property for                                                               
free for recreation.                                                                                                            
                                                                                                                                
1:44:08 PM                                                                                                                    
SENATOR HUGGINS asked if this  affects traditional trails running                                                               
through private property.                                                                                                       
                                                                                                                                
REPRESENTATIVE SEATON replied this  wouldn't change the aspect of                                                               
traditional trails, but it is  important to separate recreational                                                               
use from  access. This bill  doesn't address the  situation where                                                               
someone is using  a road on private property to  gain access to a                                                               
recreational area.                                                                                                              
                                                                                                                                
CHAIR FRENCH referred  to the scenario Senator  Huggins posed and                                                               
said should this bill pass  the landowner who allows access would                                                               
have  a  legal   problem  only  if  they  are   guilty  of  gross                                                               
negligence.  But  once  a  no trespassing  sign  is  posted,  the                                                               
standard of care reverts to  negligence. Essentially the standard                                                               
reverts to  what the law  is now. He  asked if that  scenario had                                                               
been discussed and if he agrees.                                                                                                
                                                                                                                                
1:46:54 PM                                                                                                                    
REPRESENTATIVE  SEATON  replied that  was  discussed  and it's  a                                                               
different  scenario  if  someone  is  criminally  trespassing  by                                                               
disregarding  the no  trespassing  signs. "You're  thrown into  a                                                               
whole  different series  of obligations  when  you have  criminal                                                               
trespass." This bill allows free  recreational access as compared                                                               
to someone trespassing.                                                                                                         
                                                                                                                                
CHAIR FRENCH  restated that if  this becomes law the  standard of                                                               
care  becomes  gross negligence,  but  the  standard of  care  if                                                               
access is denied is negligence.                                                                                                 
                                                                                                                                
REPRESENTATIVE   SEATON  highlighted   AS  09.65.200,   which  is                                                               
immunity for  unimproved land.  "So if  it's unimproved  land the                                                               
standard  is already  gross negligence."  This involves  improved                                                               
land.  It   becomes  difficult  because  there   are  conflicting                                                               
statutes.  For  example the  standard  for  abandoned runways  is                                                               
gross  negligence. And  if you're  allowing someone  to use  your                                                               
private  airstrip  it's  gross   negligence  for  take  offs  and                                                               
landings, but it's a question with  regard to walking to and from                                                               
the  plane. If  the  land  is unimproved  the  standard is  gross                                                               
negligence, but  if you've  mowed the grass,  set a  snow machine                                                               
track, or  it you're  too close  to a barn  then the  standard is                                                               
simple  negligence.  It's  confusing  for  the  public  and  it's                                                               
difficult for the property owner to  know if somebody could get a                                                               
proscriptive easement  if they let  someone use their  land. This                                                               
gives the  landowner confidence that  he or she can  help provide                                                               
recreation in  Alaska. "Gross negligence comes  down to choices,"                                                               
he said.                                                                                                                        
                                                                                                                                
1:50:07 PM                                                                                                                    
CHAIR   FRENCH  consulted   Blacks  Law   Dictionary  about   the                                                               
difference between  negligence and  gross negligence so  that the                                                               
committee has in mind the consequences  of this bill. He read the                                                               
following:                                                                                                                      
                                                                                                                                
     Negligence.  The  omission  to  do  something  which  a                                                                    
     reasonable    man,    guided    by    those    ordinary                                                                    
     considerations   which    ordinarily   regulate   human                                                                    
     affairs, would  do, or the  doing of something  which a                                                                    
     reasonable and prudent man would not do.                                                                                   
                                                                                                                                
     Negligence  is  the  failure  to use  such  care  as  a                                                                    
     reasonably prudent  and careful person would  use under                                                                    
     similar  circumstances; it  is  the doing  of some  act                                                                    
     which  a person  of  ordinary prudence  would not  have                                                                    
     done under similar circumstances  or failure to do what                                                                    
     a  person of  ordinary prudence  would have  done under                                                                    
     similar circumstances.                                                                                                     
                                                                                                                                
     Gross negligence. The intentional  failure to perform a                                                                    
     manifest   duty   in    reckless   disregard   of   the                                                                    
     consequences  as  affecting  the life  or  property  of                                                                    
     another.                                                                                                                   
                                                                                                                                
     It  is materially  more want  of care  than constitutes                                                                    
     simple  inadvertence.   It  is   an  act   or  omission                                                                    
     respecting  legal duty  of an  aggravated character  as                                                                    
     distinguished from a mere  failure to exercise ordinary                                                                    
     care. It amounts to indifference  to present legal duty                                                                    
     and to utter forgetfulness  of legal obligations so far                                                                    
     as other persons may be affected. …                                                                                        
                                                                                                                                
CHAIR FRENCH opened public testimony.                                                                                           
                                                                                                                                
1:52:32 PM                                                                                                                    
GEORGE  SCHAAF,  Executive  Director,  Trail Mix  Inc,  spoke  in                                                               
strong support of  HB 25. Trail Mix is a  local non-profit trails                                                               
organization  that was  created  in part  to address  complicated                                                               
landownership problems.  He explained  that Southeast  Alaska has                                                               
lots  of trails  and recreational  facilities that  may begin  on                                                               
public land  but any given  trail may  cross back and  forth from                                                               
federal land, to  state parks land, to city land,  and to private                                                               
land. Because no one was  interested in maintaining 20 percent of                                                               
a trail,  Trail Mix came  along to coordinate trail  building and                                                               
planning efforts in the Juneau  community and borough. He said he                                                               
believes that  HB 25 is  a well-considered measure  that protects                                                               
the interests of landowners and recreational hikers.                                                                            
                                                                                                                                
MR.  SCHAAF reiterated  that  landownership  issues in  Southeast                                                               
Alaska  are  complicated given  the  terrain  and the  amount  of                                                               
public land  that's there. In  Juneau three trails  in particular                                                               
will be affected  by this bill. The trails  going up Perseverance                                                               
Basin  and Mount  Juneau cross  private  land owned  by the  Keen                                                               
family.  They've been  fantastic supporters  of trails  and grant                                                               
public access, but liability has  always been an issue. This bill                                                               
will  go  a long  way  in  alleviating  some of  their  concerns.                                                               
Another  trail at  Tee Harbor  has recently  led to  some tension                                                               
among  community  members  because  the trail  access  crosses  a                                                               
corner of private  land. Potentially that trail  will be rerouted                                                               
at significant  expense because the  property owner is  afraid of                                                               
liability. This  bill will help  address that issue, he  said. On                                                               
behalf of the  350 members of Trail Mix, he  restated support for                                                               
HB  25.  This  will  go  a long  way  toward  supporting  outdoor                                                               
recreation and the benefits that provides the community.                                                                        
                                                                                                                                
SENATOR WIELECHOWSKI asked  if he's aware of anyone  who has been                                                               
sued for this.                                                                                                                  
                                                                                                                                
MR.  SCHAAF said  not in  Juneau but  the concern  is out  there.                                                               
Folks in this  community have been very trusting  and have wanted                                                               
to maintain  open access  to recreational  areas. You  never know                                                               
what will happen in the future, he added.                                                                                       
                                                                                                                                
1:56:51 PM                                                                                                                    
DAVE BRANN,  Kachemak Nordic Ski  Club reported that  he's worked                                                               
on recreational  trails in the Homer  area for about 25  years. A                                                               
long-standing concern  has been  trails that  cross a  variety of                                                               
properties  including private,  borough,  state,  and Native.  In                                                               
fact,  potential trail  access across  private property  has been                                                               
limited because of  liability concerns. People in  the Homer area                                                               
have been  generous in allowing  trail use on their  property but                                                               
there is  increasing concern  about liability.  On behalf  of the                                                               
Kachemak Nordic Ski  Club he stated strong support for  HB 25. He                                                               
added that  he allows free  recreational use of his  property and                                                               
he finds existing statutes to be  very confusing; a lot of people                                                               
don't know what is and isn't allowed.                                                                                           
                                                                                                                                
1:58:44 PM                                                                                                                    
LEAH  JENKIN, Homer  resident  said  she owns  10  acres near  an                                                               
equestrian center  and ball parks  and the state built  an access                                                               
road through  part of  her property.  Although she  supports both                                                               
facilities, she's  worried about  liability. "When  we're talking                                                               
about children and  horses, a landowner needs  all the protection                                                               
they can get." She urged the committee to pass HB 25.                                                                           
                                                                                                                                
2:00:37 PM                                                                                                                    
MICHAEL SCHNEIDER, Attorney  at Law, reported that  he's lived in                                                               
Anchorage  since 1975.  He said  his  testimony is  based on  two                                                               
assumptions. The first is that this  bill was heard by the Senate                                                               
Resources  Committee last  session. Second,  he assumes  that the                                                               
committee   received   a   copy   of  his   3/16/07   letter   to                                                               
Representative Seaton addressing his concerns about the bill.                                                                   
                                                                                                                                
CHAIR FRENCH told him that both assumptions are correct.                                                                        
                                                                                                                                
MR. SCHNEIDER said he takes  issue with the overriding premise of                                                               
the bill because there's no way  that folks who are interested in                                                               
public access  and trail use  can figure out whether  a landowner                                                               
has or  has not given  permission to  use their land.  They can't                                                               
check at  the recorders office,  for example, because  nobody has                                                               
to do anything  official to obtain the immunity  status set forth                                                               
in the  bill. His letter  suggests a  way around that  problem so                                                               
that there would never be any  doubt about whether or not a given                                                               
property is  open for public use  and the owner is  thus entitled                                                               
to immunity.                                                                                                                    
                                                                                                                                
2:03:30 PM                                                                                                                    
MR.  SCHNEIDER  suggested  that the  bill  encourages  fraud  and                                                               
perjury  by property  owners who  may be  sued in  the face  of a                                                               
death or serious injury. Hypothetically  the insurance agent will                                                               
inform the  property owner that  barring gross negligence,  he or                                                               
she will  be immune  from suit  if the property  is open  to free                                                               
recreational  use. He  surmised that  that that  defense will  be                                                               
asserted 100 percent of the time  even though the property may be                                                               
open for recreational use less than 100 percent of the time.                                                                    
                                                                                                                                
MR.  SCHNEIDER  observed  that  there  seems  to  be  a  foregone                                                               
conclusion that  if someone engages  in a specific  conduct, such                                                               
as  pulling a  cable  across  a trail,  that  amounts to  grossly                                                               
negligent conduct. But  whether or not the  particular conduct is                                                               
grossly  negligent will  be a  jury question  in virtually  every                                                               
case. Also, he  does not agree with the  sponsor's statement that                                                               
the  bill is  of no  benefit to  someone who  charges for  use of                                                               
their  land.  Anybody after  the  fact  can divert  funds  toward                                                               
hazard remediation and  claim the benefit of  this loosely worded                                                               
legislation, he said. Furthermore the  term "land" includes a lot                                                               
of things  - including machinery,  which would make  it difficult                                                               
to  prove  liability.  It  would  provide  broad  immunity  under                                                               
circumstances where  the public is receiving  nothing tangible in                                                               
exchange.                                                                                                                       
                                                                                                                                
MR.  SCHNEIDER  offered  his  view  that  from  a  public  policy                                                               
standpoint  the sponsor's  intent is  a good  idea, but  the bill                                                               
needs  many things  fixed or  it's a  give away  of constituents'                                                               
rights for virtually nothing in return.                                                                                         
                                                                                                                                
2:07:02 PM                                                                                                                    
ROBERTA  HIGHLAND, Homer  stated strong  support for  HB 25.  She                                                               
agrees  with Mr.  Schneider  that it's  important  to get  things                                                               
right, but  she can't imagine that  the 45 states that  have this                                                               
law  haven't already  addressed every  potential legal  issue. In                                                               
her   view  the   litigation-happy  standard   in  this   country                                                               
negatively  affects quality  of  life. She'd  like attitudes  and                                                               
laws to  change such that  personal responsibility is  given back                                                               
to the individual. HB 25  begins that process. She explained that                                                               
she and  her husband welcome  non-motorized use on the  trails on                                                               
their  land and  this  bill would  relieve  their concerns  about                                                               
litigation.  Trails are  an important  part in  the enjoyment  of                                                               
life.                                                                                                                           
                                                                                                                                
2:09:11 PM                                                                                                                    
PHILIP  PAUL  WAGONER, Attorney  at  Law  and Anchorage  property                                                               
owner,  said he  concurs with  Mr. Schneider.  He recognizes  the                                                               
good  will  intent of  the  bill  but  it provides  such  blanket                                                               
immunity to persons that engage  in culpable conduct that it will                                                               
ultimately  shift  the responsibility  for  that  conduct to  the                                                               
coffers of the state. He gave  examples of several cases where he                                                               
represented people who were severely  injured by cables that were                                                               
strung  across  trails.  The  way  the bill  is  written  if  any                                                               
landowner  directly   or  indirectly  allows   free  recreational                                                               
activity,  then it's  blanket  immunity even  if  they stretch  a                                                               
cable across  a trail.  It's also a  situation where  a landowner                                                               
could allow  a select  group to  engage in  recreational activity                                                               
without charge and then stretch a  cable across the trail for the                                                               
general public. He expressed the  view that the bill really needs                                                               
to be  reworked. "It's  always problematic  when laws  are passed                                                               
that infringe  on constitutional rights" We  sometimes forget the                                                               
fact  that  the writers  of  the  U.S. and  Alaska  constitutions                                                               
granted a  right to  a jury  trial as it  existed in  common law.                                                               
That means if  someone puts up a dangerous  obstacle on developed                                                               
or  undeveloped land  they're liable  and the  resulting harm  is                                                               
shifted to their coffers and not  to the victim or the public. He                                                               
asked the committee to send the  bill back for fine-tuning so its                                                               
purposes can  be achieved without  providing blanket  immunity to                                                               
people who engage in conduct that will cause serious harm.                                                                      
                                                                                                                                
2:13:11 PM                                                                                                                    
CHAIR FRENCH asked  if he had reviewed Mr.  Schneider's March 16,                                                               
2007 letter.                                                                                                                    
                                                                                                                                
MR. WAGONER  said he  had and  he concurs  with his  comments. He                                                               
understands  the   good  intent  but  it's   dangerous  to  grant                                                               
immunity. "As  sure as  we're all  here on  this Earth  today, if                                                               
this bill is passed in its  present form, somebody's going to get                                                               
seriously hurt  due to culpable  conduct and the person  is going                                                               
to escape  and … their insurance  company is going to  escape and                                                               
the ultimate harm  is going to be  left to the victim  and or the                                                               
public coffers."                                                                                                                
                                                                                                                                
2:13:51 PM                                                                                                                    
SENATOR McGUIRE joined the meeting.                                                                                             
                                                                                                                                
2:14:13 PM                                                                                                                    
JACK MOSBY,  former President, Alaska  Trails, relayed  that this                                                               
statewide  non-profit group  was formed  to enhance  Alaska trail                                                               
experiences  by supporting  sustainable  trails through  advocacy                                                               
and education.  He's aware that  liability is a  continuing issue                                                               
with  projects  in Anchorage,  MatSu  Valley,  and Fairbanks.  It                                                               
sounds as thought  it's an issue in other places  in the state as                                                               
well. He reiterated the group's continuing support for HB 25.                                                                   
                                                                                                                                
CHAIR FRENCH asked  if he's aware of any lawsuits  that hinged on                                                               
allowing  or  not  allowing access  -  instances  where  innocent                                                               
homeowners  have been  dragged into  a legal  dispute because  of                                                               
accidents on trails.                                                                                                            
                                                                                                                                
MR. MOSBY replied he's not aware of any such cases.                                                                             
                                                                                                                                
CHAIR  FRENCH  stated  his  intention  to hold  the  bill  for  a                                                               
subsequent hearing.                                                                                                             
                                                                                                                                
2:16:17 PM                                                                                                                    
REPRESENTATIVE  SEATON distributed  two documents  to respond  to                                                               
the  issues Mr.  Schneider raised  in his  letter. One  discusses                                                               
gross  negligence  and associated  case  law.  The second  is  an                                                               
opinion from  legislative legal  services about  the hypothetical                                                               
circumstance where a landowner strings  a cable on their property                                                               
that results  in the decapitation  of a  person who is  using the                                                               
property  for recreational  purposes.  He  also highlighted  that                                                               
this bill  removes the ambiguity  between improved land  and land                                                               
that is  mowed or a hayfield  close to a building.  Under current                                                               
Alaska  statute  the  standard  for  unimproved  lands  is  gross                                                               
negligence, but unless  protected by HB 25 the  hayfield could be                                                               
considered  improved   land  which  has  the   simple  negligence                                                               
liability standard.                                                                                                             
                                                                                                                                
CHAIR  FRENCH  said  the  committee would  look  closely  at  the                                                               
documents. [HB 25 was held for a subsequent hearing.]                                                                           
                                                                                                                                

Document Name Date/Time Subjects