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
SENATE JUDICIARY COMMITTEE
March 5, 1993
2:05 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chairman
Senator Rick Halford, Vice-Chairman
Senator George Jacko
Senator Dave Donley
Senator Suzanne Little
OTHERS PRESENT
Senator Tim Kelly
COMMITTEE CALENDAR
SENATE BILL NO. 84
"An Act relating to fees for identification cards and
certain motor vehicle licenses and permits; to licenses
issued to drivers and to revocation of a license to drive;
and providing for an effective date."
CS FOR SENATE BILL NO. 44(L&C)
"An Act relating to civil liability for skiing accidents,
operation of ski areas, and duties of ski area operators and
skiers; and providing for an effective date."
SENATE JOINT RESOLUTION NO. 3
Proposing amendments to the Constitution of the State of
Alaska relating to terms of legislators.
SCHEDULED BUT NOT HEARD THIS DAY.
SENATE JOINT RESOLUTION NO. 4
Proposing an amendment to the Constitution of the State of
Alaska relating to the duration of a regular session.
SCHEDULED BUT NOT HEARD THIS DAY.
SENATE BILL NO. 69
"An Act prohibiting employers from discriminating against
individuals who use legal products in a legal manner outside
of work."
SCHEDULED BUT NOT HEARD THIS DAY.
PREVIOUS SENATE COMMITTEE ACTION
SB 84 - See State Affairs minutes dated 2/17/93.
SB 44 - See Labor and Commerce minutes dated 1/19/93,
1/21/93, and 1/26/93.
SJR 3 - See State Affairs minutes dated 1/20/93 and 1/22/93.
SJR 4 - See State Affairs minutes dated 1/22/93.
SB 69 - See Labor and Commerce minutes dated 2/2/93.
See Judiciary minutes dated 2/17/93.
WITNESS REGISTER
Josh Fink, Aide
Senator Tim Kelly
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on SB 84.
Juanita Hensley, Chief
Driver Services
Division of Motor Vehicles
Department of Public Safety
P.O. Box 20020
Juneau, Alaska 99802-0020
POSITION STATEMENT: Testified on SB 84.
Cynthia Christianson, Attorney
2101 Belmont Drive
Anchorage, Alaska 99517
POSITION STATEMENT: Opposed SB 84.
Dennis Mestas, Attorney
Mestas and Schneider
880 N Street #202
Anchorage, Alaska 99501
POSITION STATEMENT: Opposed SB 44.
Fred Turton, Program Director
Juneau Ski Club
155 S. Seward
Juneau, Alaska 99801
POSITION STATEMENT: Supported SB 44.
Paul Swanson, Manager
Eaglecrest
P.O. Box 34898
Juneau, alaska 99803
POSITION STATEMENT: Supported SB 44.
Mike Ford, Attorney
Legislative Legal Counsel
Legislative Affairs Agency
130 Seward Street
Juneau, Alaska 99801
POSITION STATEMENT: Drafted SB 44.
ACTION NARRATIVE
TAPE 93-21, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 2:05 p.m.
SENATOR TAYLOR introduced SB 84 (REVOKE DRIVER'S LICENSE IF
USE FALSE I.D.) and invited the prime sponsor, SENATOR TIM
KELLY, to review his bill.
SENATOR KELLY critiqued previous history on the intent of
the legislation in the last session, where it died in House
Finance. He listed the supporters from the previous bill:
Department of Public Safety, Health and Social Services,
Municipality of Anchorage, Mothers Against Drunk Driving,
Bristol Bay Health Area Corporation, THE DAILY NEWS, the
Alcohol Beverage Control Board, the Alaska Cabaret, Hotel, &
Restaurant Retail Association, and the Anchorage Restaurant
& Beverage Association.
SENATOR KELLY explained SB 84 addressed the use of
fraudulent licenses by minors to purchase alcohol in a
number of ways. First, it would require that a hologram be
placed over vital information on the license to prevent
tampering. Second, the phrase "under 21" would be placed on
the licenses of those who are 21 years of age, indicating to
someone serving alcohol, the person is too young to be
served alcohol. Besides being a deterrent to tampering,
SENATOR KELLY said it would also prevent juveniles from
attempting to purchase alcohol with a fake license.
SENATOR KELLY explained driving privileges would be revoked
for any individual caught using a fraudulent license to
purchase alcohol, with revocation of 60 days for the first
offense, and 12 months for any subsequent offenses. He said
the legislation should provide an effective deterrent for
minors considering the use of a fraudulent drivers license
to purchase alcohol, thereby alleviating some of the abuses
of alcohol by minors.
SENATOR TAYLOR opened the meeting to discussion on the bill.
Number 063
SENATOR LITTLE asked SENATOR KELLY to explain the costs as
listed in the fiscal note. SENATOR KELLY deferred to his
aide, JOSH FINK, who had worked on the previous legislation
last year.
MR. FINK deferred to JUANITA HENSLEY, who had prepared the
fiscal note, and was testifying from Anchorage.
SENATOR TAYLOR asked MS. HENSLEY, Chief of Drivers Services
for the Division of Motor Vehicles, to answer SENATOR
LITTLE'S questions about the fiscal note.
MS. HENSLEY explained the Division of Motor Vehicles would
be revoking about 1500 drivers licenses per year, as the
result of the legislation. In order to process the
revocation, she had asked for one full time hearing officer,
because the law requires due process before a license can be
revoked. Two full time document processors would be needed
to do the paper work to actually revoke the license and to
notify the person of the revocation.
MS. HENSLEY outlined the cost and method for placing both
the hologram and the holographic phrase "under 21" on the
license, a process that can be done by the Polaroid
Corporation, which has the means to place the hologram
directly into the drivers license pouch. She said the cost
to the state would be an additional $50,000 per year.
MS. HENSLEY estimated the revenue from the increased drivers
license fees, under SB 84, would be $815,000. She explained
the cost to effectively operate within the legislation would
be $215,700 for the first year, but would be reduced in the
following years to $191,000. She suggested the fee, set at
$5 for a duplicate drivers license, should be increased to
at least $10 or $15, because it takes more time to process a
duplicate drivers license than a renewal drivers license.
Number 140
SENATOR LITTLE clarified the personnel costs would pay for
one hearing officer and two document processors, and MS.
HENSLEY said she was correct. In answer to a question from
SENATOR LITTLE, MS. HENSLEY explained a law enforcement
officer would confiscate the drivers license and send it to
the Division of Motor Vehicles, which would then conduct the
proper hearings to get the license revoked.
SENATOR TAYLOR noted MS. HENSLEY'S estimation of 1500
revoked drivers licenses each year and asked if she believed
the young people of Alaska were stupid enough to continue to
use fraudulent licenses after seeing some of their friends
lose their license.
MS. HENSLEY claimed she had no way of knowing exactly how
many under age drivers would have their license revoked, but
she was quoting statistics from the ABC Board, which submits
about 500 to 700 confiscated drivers licenses each year from
bars or other liquor establishments. She said that did not
take in to account those licenses confiscated by law
enforcement throughout the state, but she hoped there would
not be 1500 drivers licenses every year. She also hoped the
legislation would be a deterrent.
SENATOR TAYLOR felt the salient nature of the bill would
cause younger people to understand the significant penalty
for using phoney identification and disagreed with MS.
HENSLEY'S figures of 500 to 700 confiscated drivers licenses
in the future. He also disagreed with the fiscal note based
on 1500 revoked licenses each year, citing the devastating
effect of the penalty as a restraint.
Number 192
SENATOR JACKO asked for the total cost for each individual
to retrieve their license after it has been confiscated, and
MS. HENSLEY explained the process of replacing the revoked
license, beginning with a written test and a possible road
test. She said it would be a $100 in addition to the
regular license fee of $10.
SENATOR TAYLOR quoted MS. HENSLEY'S estimate of $50,000 from
the Polaroid Company and asked for the proposed number of
licenses to be issued for this amount. MS. HENSLEY said
last year the Division of Motor Vehicles issued in excess of
200,000 drivers licenses and I.D.'S, which included
originals, renewals, and duplicates of both. She was told
it would increase the cost of a license by 25 cents per
license to place the hologram - which accounts for the
$50,000. There was a surprised discussion at her
statistics.
SENATOR LITTLE spoke in favor of raising the fee for the
duplicate drivers license higher than the original license
fees, as a dis-incentive to tamper with their license and
risk confiscation.
SENATOR KELLY asked for how long a drivers license is valid,
and MS. HENSLEY explained the licenses were valid for 5
years, with the exception of the duplicate drivers licenses,
which is predicated on the time left on the original
license.
Number 244
SENATOR KELLY questioned when the holographic license would
be issued, under 21 and 16 year old when they come in for
their first license? MS. HENSLEY said the licenses would be
issued to everyone who came into the office, and she
explained those under 21 would receive a license with the
holographic phrase on it. He said the object was to keep an
under 21 year old person from using a license belonging to
someone over 21.
SENATOR TAYLOR thanked MS. HENSLEY for her interesting
answers and asked SENATOR KELLY how he wanted to proceed on
the bill.
SENATOR KELLY indicated he had no problem with increasing
the fees for duplicate licenses, and they discussed placing
the change on page 6, line 14.
SENATOR TAYLOR moved to amend SB 84 to raise the fee for
duplicate licenses to $15. SENATOR HALFORD objected, saying
he didn't want to increase fees in large amounts anywhere.
SENATOR KELLY said the increase would be $2 per year and
suggested $10 instead.
SENATOR DONLEY clarified the bill would bring in more
revenue than the costs, and SENATOR KELLY agreed. SENATOR
JACKO thought it was to be a deterrent, and MS. HENSLEY said
he was correct. SENATOR JACKO asked if the bill could
specify the increased fee would only be for the confiscated
licenses. There was a general discussion of the extra $100
on the renewal of a confiscated license.
SENATOR KELLY asked for some elaboration from MS. HENSLEY on
the fee structure and how long the present licenses have
been at $3 for a duplication. MS. HENSLEY explained the fee
was raise from $2 to $3 within the last ten years. SENATOR
KELLY asked for the fee schedule for other states, and MS.
HENSLEY said she would get the information for him. She
explained that some people buy several to as many as 8
duplicates of their license to be retained for legal
purposes or for resale.
Number 313
SENATOR TAYLOR asked for the actual cost of processing a
duplicate license. MS. HENSLEY estimated the actual cost of
a renewal is $15, while an original costs $10, and if that
person has to take a road test, its an additional $15.
SENATOR LITTLE asked MS. HENSLEY if she was relating the
cost to the consumer or the cost to the state. MS. HENSLEY
was unable to give an accurate cost because of the cost of
the related activities. SENATOR KELLY reviewed the cost
structure to include personnel costs.
SENATOR TAYLOR renewed his motion to amend the bill to
increase the cost of a renewal license to $15. SENATOR
KELLY thought the committee should consider the number of
duplicates purchased by the drivers, which brought about
some raillery. SENATOR JACKO didn't think the fee should be
changed. SENATOR TAYLOR withdrew his motion.
Number 396
SENATOR TAYLOR noted the following people in Anchorage who
wished to testify: CAROL WILSON, ED O'NEILL, and MR. DORAN
POWELL. When polled, all three were in favor of SB 84.
SENATOR TAYLOR entertained a motion to move the bill from
committee.
SENATOR LITTLE moved to pass SENATE BILL NO. 84 (REVOKE
DRIVER'S LICENSE IF USE FALSE I.D.) from committee with
individual recommendations. Without objections, so ordered.
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.
There being no further business to come before the
committee, the meeting was adjourned at 4:03 p.m.
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