Legislature(1993 - 1994)
01/21/1993 01:32 PM Senate L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
The only order of business to come before the committee was SB 44 (CIVIL LIABILITY FOR SKIING ACCIDENTS). SENATOR KELLY indicated the committee members received a letter, dated January 21, 1992, from Patti Rizer to SENATORS KELLY, RIEGER, PEARCE, LINCOLN, and SALO. He asked JOSH FINK, committee aide, to review proposed amendments from the committee members. MR FINK reviewed the following amendments: Amendment #1: Page 5, line 9, after "United States" insert "or State of Alaska" Amendment #2: Page 8, line 24 insert: "(5) Mark exposed forest growth, rocks, stumps, stream beds, and trees, or other natural objects, on groomed slopes or trails that are not readily visible to skiers under conditions of ordinary visibility from a distance of at least 100 feet; (6) 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," These were to be renumber accordingly. Number 058 CHAIRMAN KELLY moved the adoption of amendment #1. Without objections, so ordered. MR. FINK explained that amendment #2 added two additional requirements to be placed on a ski operator. There was some concern that in the definition of "inherent risk" there was some items people felt should be the responsibility of the ski operators for marking. The amendment would require that forest growth, rocks, stumps, stream beds, trees, or other natural objects on groomed slopes, not readily visible, must be marked. SENATOR RIEGER noted concern with amendment #2. He referred to the Supreme Court's ruling in the Valdez case in which the Supreme Court listed specific items as the responsibility of a ski operator, and said it suggested an intent to presume liability for anything not listed. SENATOR RIEGER said it would make sense to have a more conceptual approach, saying a skier assumes the risk when the person decides to go skiing. SENATOR RIEGER continued to discuss a case in which a 15 year old, who had been drinking alcohol, had been injured while skiing. CHAIRMAN KELLY explained the list in amendment #2 were the minimum requirements they have to follow. Number 140 MITCH GRAVO said the amendment sets up the minimums, but he said the legislation doesn't make it clear that complying with the minimums absolves them of liability. They still have to follow the negligent standards in common law. SENATOR RIEGER indicated that he doesn't read the bill in the context of the Supreme Court ruling. He said, in the Valdez case, a person was judged not capable of exercising prudent judgement, therefore, the ski resort operator was liable. MIKE FORD, Legislative Legal Counsel, explained in this case, there was perhaps a question as to whether there was negligence, but enough doubt to go to the jury. MR. FORD explained SB 44 set out an expanded list of inherent risks. He said he doesn't believe the bill would change the existing law, and to revise existing law to reflect inherent risks. Mr. Ford explained there would be no liability for an inherent risk, but risks would be assumed by the skiers. Number 206 SENATOR SALO said clearly the bill was trying to get rid of nuisance law suits on inherent risks, but she asked to what degree would it limit the ability to go to a jury trial. She requested an example as to how a person might be limited in securing a jury trial under the proposed legislation. MR. FORD said the legislation wouldn't prevent anyone from filing a law suit, and he gave examples of inherent risks on ski slopes. MR. FORD explained how the jury could divide the fault between the operator and the skier. SENATOR KELLY said he doesn't intend to move the bill at the present meeting, but he asked the committee to review the amendments for a committee substitute. Number 275 - SENATOR LINCOLN, in reference to page 12, said she was still struggling with the definition of "what is a ski area." She referred to the non-Alpine ski slope at the University of Alaska - Fairbanks and asked if the bill would apply to them. MR. FORD said as he reads the bill, it would apply to down hill and cross country areas. - SENATOR LINCOLN asked for a definition of "a single enterprise." Mr. Ford said it was operated as one business. Senator Lincoln indicated that the University of Alaska's ski slope wouldn't fit into the definition in the bill. Mr. Ford indicated he didn't believe it would either. SENATOR LINCOLN asked how many areas fit the definition of "a single enterprise." - SENATOR KELLY asked his staff to check on the number of areas that fit the definition and, under existing law, the definition of an operator of a ski area. - SENATOR PEARCE suggested also reviewing the definition of "conditions of ordinary visibility." She expressed concern with the existing definition which means "daylight or nighttime in non-precipitating weather." Number 343 - SENATOR SALO, in reference to amendment #2, asked why the distance of 100 feet was being used. MR. FORD indicated the number came from the model law. There was discussion regarding the marking of exposed areas and natural objects. Number 390 RAGA ELIM, Special Assistant, Department of Natural Resources, indicated interest in the bill by the Division of Land and the Division of Parks and Outdoor Recreation. He said he wasn't sure whether cross country trails were included. SENATOR KELLY said he didn't think cross country trails would be covered. There was continued discussion regarding the definition of "alpine," "nordic," and "a ski area." SENATOR SALO believed it would be difficult to apply all the standards listed in terms of the ski area's responsibility to "nordic" skiing. She thought if reasonable standards of operation were established on "nordic trails," it should either be separate legislation or an additional section of the bill. SENATOR KELLY said he believed that by including the words "alpine" and "ski operator," it would be it clear that it would be ski operators running alpine slopes. SENATOR LINCOLN said she believes that the words "and other areas" should be deleted. SENATOR KELLY asked if there was an objection to amendment ordered. SENATOR KELLY asked if there was an objection to the adoption of amendment #2. Without objections, so ordered. SENATOR RIEGER offered the following amendments: - Page 4, line 13, after "if" insert "(1)." At the end of line 13 after "and," add "(2)." - Page 4, line 4, after "skiing" insert "In apportioning comparative fault if there if there is negligence by a ski operator, the court shall treat the inherent risk of skiing, to the extent that it contributed to the damage, as part of the fault of the skier." - SENATOR RIEGER suggested, as part of the previous amendment, deleting on page 3, lines 27 and 28, "(4) exclude a comparative negligence or comparative fault analysis from the ski context where an injury is the result of an inherent risk of skiing; and" - Page 3, line 4, after "skiing;" delete "it is impractical to expect the operator to eliminate or mitigate these hazards." - Page 2, delete lines 26 through 29, "(9) ski area operators have a very limited ability to alter terrain features; it is not reasonable to expect operators to turn wild, natural alpine terrain into croquet lawns; there will always be rocks, trees, stumps, tree roots, bushes, branches undergrowth, and other natural alpine features within a property operated by a ski area;" At this point in the meeting, SENATOR KELLY called for a short recess. When the meeting was called back to order, the committee members were given a copy of the proposed amendments. - SENATOR RIEGER explained that the purpose of the amendment on page 4, line 13, was to clarify how the court awards damages. He said he doesn't believe the amendment changes the legislation, but only puts in writing the drafter's expectations as to the stated law under the bill. SENATOR KELLY asked for any objections to the amendment. Without objections, so ordered. - SENATOR RIEGER noted the amendment would also require the deletion of lines 27 and 28 on page 3. He indicated that the stated purpose of the act, to exclude comparative negligence, was not exactly accurate. MR. FORD suggested modifying the phrase rather than removing it because if it was clearly an inherent risk, comparative negligence should not apply. He suggested adopting a conceptual amendment to modify the language, to which SENATOR RIEGER agreed. Number 560 - SENATOR RIEGER, in reference to the amendment on page 2 which deletes lines 26 through 29, said it was his understanding the purpose of a ski area was to have terrain features and hazards to attract people to ski. He explained the amendment was to attract skiers to areas where the terrain features have not been altered unless there are undesirable hazards. SENATOR KELLY suggested saying, "ski area operators have a limited ability to alter terrain features." He said there were certain things that couldn't be altered - like a huge rock or the slope of a mountain. SENATOR RIEGER agreed with SENATOR KELLY and withdrew the amendment. - SENATOR RIEGER referred to his next amendment on page 3, line 4, after "skiing;" and proposed to delete "it is impractical to expect the operator to eliminate or mitigate these hazards." He then moved the amendment be adopted. SENATOR PEARCE objected. She said while it was true, all hazards could not be entirely eliminated, she expected mitigation of severe hazards, and wouldn't want to delete the mitigation part of the bill. TAPE 93-4, SIDE B Number 001 SENATOR RIEGER thought a responsible operator would mitigate unreasonable hazards. SENATOR SALO suggested working on better language before the next meeting. SENATOR KELLY said the amendment could be adopted in concept and directed staff to work on the amendment with SENATOR RIEGER. - SENATOR RIEGER referred to the amendment on page 4, line 13, after "if" to insert "(1)," and at the end of line 13 after "and," to add "(2)." He said he was suggesting the passenger had two duties. First was to have the physical ability to use the facility, and secondly, to have adequate knowledge to be safe on the ski hill. SENATOR KELLY asked if there was any objection to the amendment. Without objections, so ordered. Number 022 SENATOR KELLY noted for the minutes he had received a letter from the Alaska Ski Areas Association, STEVEN P. REMME, Chairman, in support of the legislation. SENATOR KELLY said he didn't want the state to be a deep pocket if they become the leaser to the Alyeska Resort, and he asked how it would be avoided. The second problem included the involvement of state parks. SENATOR SALO asked if SENATOR KELLY would entertain amendments to the bill at the next meeting. SENATOR KELLY indicated other amendments could be made, but he would like to move the bill on Tuesday. He explained the next committee of referral would be the Judiciary Committee, where some of the legal questions will be reviewed more closely. - SENATOR SALO proposed an amendment on page 2, line 24, to add the word "all" after "controlling." It would read "ski area operators are financially and physically incapable of controlling all the conditions under which skiing take place." Without objections, so ordered. - SENATOR SALO, in reference to page 3, lines 16 and 17, believed the first part of the paragraph was redundant. She also noted this section of the bill was particularly offensive to those with a family member who was seriously injured or had lost their life while skiing. She moved to insert a period on line 15 after the word "man-made" and to delete the rest of the sentence. Without objections, so ordered. - SENATOR SALO referred to page 5, line 4 which spoke to the required plan and patrol by ski area operators and would reference the American National Standards Institute (ANSI) Code. GARY MENDIVIL, Business Manager for the Eaglecrest Ski Area, indicated that ANSI Code was updated on a regular basis, with the current code dated 1990. - SENATOR KELLY asked SENATOR SALO where she would like to have the codes referenced in the bill. SENATOR SALO said she would like a new part "(b)" where it would advise a ski area to comply with the current ANSI codes. The current "(b)" would then become "(c)." SENATOR KELLY asked staff to take a look at the ANSI codes and report back to committee. Number 088 - SENATOR PEARCE proposed lines 21 and 22 on page 2 should be deleted, and SENATOR KELLY agreed the lines were superfluous. The lines were dropped. - SENATOR PEARCE, in reference to page 3 line 26, expressed concern about the phrase, "for which there can be no recovery;." SENATOR KELLY suggested an alternate phrase, and SENATOR PEARCE wanted to hear from MR. FORD. He advised this might be another pocket if there was a claim for defective equipment. SENATOR KELLY suggested the phrase, "expressly assumes that the inherent risk of skiing," and it was changed without objections. - SENATOR PEARCE spoke to her opposition to subsection (5), lines 29 and 30 of page 3. There being no objections SENATOR KELLY deleted the subsection. - SENATOR PEARCE next directed attention to page 4, line 5 and suggested it might make the public think the ski areas were never negligent. - SENATOR PEARCE next directed her concern to lines 22, subsection (2) under Sec. 05.45.030 DUTIES OF PASSENGERS, where she thought "intentionally" should be added to "throw or expel an object ....," and she explained circumstances that might not be avoidable. - SENATOR PEARCE referred to line 28 on the same page for the addition of "intentionally" to "place in an uphill track ...." There was some discussion of the proposed change and SENATOR KELLY asked staff to report back on this amendment. Number 171 SENATOR PEARCE, in reference to page 5, Sec. 05.45.040, said she didn't understand how ski patrols became sanctioned but accepted ski patrols had to exist to keep inherent risks to an acceptable level. She reviewed the responsibilities of the ski patrol but questioned where in the legislation these obligations were outlined. SENATOR PEARCE returned to an earlier question as to the liability of the state, and she gave a personal example where this happened. SENATOR KELLY paraphrased her concerns. Number 185 - SENATOR SALO said there were two issues in reference to subsection (b) of Sec. 05.45.040 which gave the qualifications for the ski patrol members, but she was concerned at the ratio of ski patrol members to the skiers on the hill. She said she was satisfied with answers from MR. HEISER in terms of the safety standards at Alyeska, but she said it was not referenced in the bill. There ensued a discussion of ski patrol standards and qualifications among the committee members and the audience. Number 202 SENATOR PEARCE addressed the remainder of her concerns: - The bottom of page 5, lines 30 and 31, "...50 feet ahead of the unloading area;" Mr. Ford said it was from the model legislation. - Page 6, lines 16 and 17; also on page 5, line 30 and 31, also from the model legislation. - Page 7, line 4, and page 8, line 6 "...conditions of ordinary visibility" previously mentioned by SENATOR PEARCE. - Page 7, line 13, "...nonskiable terrain;" Better term? - Page 9, line 7, the WARNING sign. SENATOR PEARCE was bothered with "only with the skier." MR. FORD said it was meant to convey "if it is an inherent risk, the skier is responsible." SENATOR PEARCE wanted it addressed again. - Page 9, line 16, "collisions." She didn't agree that a collision with other skiers would always be an inherent risk, but did think ski patrol members had a responsibility to control the skiers. SENATOR PEARCE didn't support the text on line 16. - Page 10, Sec. 05.45.090 REVOCATION OF SKIING PRIVILEGES SENATOR PEARCE agreed the ski operator could revoke the skiing privileges, but questioned lines 8 through ten beginning with "This section ..." SENATOR KELLY disagreed with the amount of responsibility suggested by SENATOR PEARCE to be placed on the ski patrol, and she rebutted his comments. Number 296 SENATOR KELLY introduced TED LEHRBACH from the Division of Insurance who gave the analogy of traffic police, who were not able to remove all of the intoxicated drivers from the highways. He posed the question as to whether the state was liable if they did not remove the drivers and suggested it was the same kind of argument. MR. LEHRBACH explained the more complicated the requirements, the more difficult it would be for the insurance carrier to write the policy. He warned it would be difficult to get good insurance if the terms were complicated, but he said the Division of Insurance was neutral on the subject. Number 349 SENATOR PEARCE discussed with SENATOR KELLY the need for affirmative duty by the ski patrol. SENATOR KELLY asked if all 14 ski resorts had a ski patrol, and MR. GRAVO thought all of the areas had ski patrols. He praised the quality of the ski patrol at Alyeska, but questioned some of SENATOR PEARCE'S opinions. SENATOR KELLY supported SENATOR PEARCE'S comments on the ski patrols and suggested she work with MR. FORD on acceptable language. SENATOR PEARCE continued her analysis of the legislation with: - Page 11, lines 1 through 3 beginning with "... the skier's ability is impaired ...." SENATOR PEARCE questioned the responsibility of a ski area that served alcohol and wondered if it should be shared responsibility. Number 396 SENATOR KELLY and MR. FORD agreed it was illegal to serve alcohol to an intoxicated person but alcohol was served at Alyeska. MR. FORD suggested some changes to the legislation to reflect impairment, not just being under-the-influence. - On page 11, lines 9 through thirteen, SENATOR PEARCE thought signs should be changed to reflect the changes in the weather conditions. MR. FORD described legal ramifications of such a change, and he said the presumption is rebuttable. - Page 11, subsection (g), lines 17 through 22 brought up a subject SENATOR PEARCE discussed before as to whether a ski area has a responsibility through their ski patrol to have crowd control. SENATOR KELLY questioned her meaning and she returned to the subject of crowd control, collisions, and responsibility. - On page 11, line 28, SENATOR PEARCE wanted to work on the definition of "conditions of ordinary visibility." Number 473 SENATOR KELLY wanted to have enough information to prepare a committee substitute, with emphasis on Ski Patrol Standards. MR. FORD suggested a "prepare and follow" rather than just prepare. - There was a general discussion of insurance inspections and liability by SENATOR KELLY, SENATOR PEARCE, and MR. LEHRBACH concerning page 5, lines 5 and 6. SENATOR KELLY made suggestions for alternate wording which was approved by the committee. Number 548 SENATOR KELLY questioned SENATOR PEARCE'S objections to the "50 feet provision." She thought it was too short and suggested a change. SENATOR KELLY asked MR. MENDIVIL whether Eaglecrest had any ideas to offer, but he explained Eaglecrest didn't have high speed lifts. - SENATOR SALO objected to an amendment to change the "50 feet provision" because of the cost of implementing it, and she wanted to know more about whether it was a problem in terms of lift access. She thought it was not enough of a problem to require sign changes at all of the lifts. SENATOR KELLY thought the ski slope operators had the safety of the skiers in mind, also. SENATOR PEARCE wanted to see if it was in the ANSI code, and SENATOR KELLY directed it be done. Number 578 - SENATOR KELLY asked if the committee wanted to tackle the "ordinary visibility" concern, and MR. FORD offered to work on some different language. TAPE 93-5, SIDE A SENATOR PEARCE contended the wording was too vague, so SENATOR KELLY directed MR. FORD to work on a better definition. - SENATOR PEARCE directed attention to "nonskiable terrain" on page 8, line 13, and SENATOR KELLY agreed it was a complex definition. SENATOR SALO said it was a difficult term to define because of the terrain involved, but she agreed with SENATOR PEARCE it was the decision of the skier as to whether it was "skiable" or not. SENATOR SALO thought defining the word would cause more problems. SENATOR PEARCE expressed additional concerned about marking the nonskiable terrain. Number 027 MR. MENDIVIL, representing Eaglecrest, said the ski patrol would be responsible for keeping the signs cleared of snow to be sure the signs were visible. There was some discussion, led by SENATOR PEARCE, about signing. MR. FINK outlined the problems that were raised. - SENATOR LINCOLN requested some changes on page 10, lines 28 and 29 to delete the reference to cross-country skiing. She also asked MR. FORD to review the definitions, since she thought some were cluttered and confusing. Number 104 - MR. FORD defended the reference on page 10, lines 28 and 29, since it applied to a safety device. SENATOR LINCOLN questioned the liability for the ski operator. MR. FORD explained how it protected the skier, but SENATOR LINCOLN wanted some clarification on the definitions. SENATOR KELLY asked if there was still concern about the areas where "intentional" was to be inserted, and it was explained from the audience. Number 149 - SENATOR KELLY directed MR. FORD to be sure there were no duties or liability directed at state agencies in SB 44. MR. FORD assured SENATOR KELLY the state has an immunity. SENATOR KELLY said a committee substitute would be written for the perusal of all concerned.
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