Legislature(1993 - 1994)
03/17/1993 01:47 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 17, 1993
1:47 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
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."
PREVIOUS SENATE COMMITTEE ACTION
SB 44 - See Labor and Commerce minutes dated 1/19/93,
1/21/93, and 1/26/93. See Judiciary minutes
dated 3/5/93.
WITNESS REGISTER
Marc Bond, Attorney
1007 W. 3rd Ave. #400
Anchorage, Alaska 99501
Testified off-net
from British Columbia.
POSITION STATEMENT: Counsel for Alyeska.
Bruce Rizer
5530 Rabbit Creek Road
Anchorage, Alaska 99577
POSITION STATEMENT: Opposed SB 44.
Ron Swanson, Director
Division of Lands
P.O. Box 107005
Anchorage, Alaska 99510-7005
POSITION STATEMENT: Supported SB 44.
Raga Elim, Special Assistant
Department of Natural Resources
400 Willoughby Avenue
Juneau, Alaska 99801-1724
POSITION STATEMENT: Testified on SB 44.
David Lowe
6320 Switzerland Drive
Anchorage Alaska 99516
POSITION STATEMENT: Opposed SB 44.
John Heiser, Director
Mountain Operations
Alyeska Resort
Girdwood, Alaska 99587
POSITION STATEMENT: Supported SB 44.
Patty Rizer
5530 Rabbit Creek Road
Anchorage, Alaska 99577
POSITION STATEMENT: Opposed SB 44.
Paul Swanson, Manager
Eaglecrest
P.O. Box 34878
Juneau, alaska 99803
POSITION STATEMENT: Supported SB 44.
ACTION NARRATIVE
TAPE 93-26, SIDE A
Number 001
Chairman Robin Taylor called the Judiciary Committee meeting
to order at 1:47 p.m.
SENATOR TAYLOR returned SB 44 (CIVIL LIABILITY FOR SKIING
ACCIDENTS), sponsored by SENATOR TIM KELLY, to committee and
announced the meeting was on teleconference. He said MARC
BOND, was going to testify off-net from British Columbia.
MR. BOND identified himself as counsel for Alyeska Resort
and legal counsel for the National Ski Patrol. He had been
asked to respond to the proposed amendments submitted, and
he had a set of 8 proposed amendments to present to the
committee. He explained he could respond at this time or
when convenient.
SENATOR TAYLOR explained he did not have a full committee,
but he could take testimony for the record. MR. BOND chose,
instead, to defer his testimony to respond to the amendments
and let others testify.
SENATOR TAYLOR presented 8 amendments defined as Ford,
3/3/93 and an addition amendment, Amendment #9, defined as
Ford, 3/5/93. SENATOR TAYLOR calculated 21 amendments
currently before the committee.
MR. BOND said his list of 8 amendments were proposed by
DENNIS MESTAS, and he gave his fax number to SENATOR TAYLOR,
who offered to send the remainder of the amendments to him.
MR. BOND was invited to remain on the teleconference network
for the remainder of the meeting to hear BRUCE RIZER and RON
SWANSON.
MR. RIZER requested a copy of the remaining 21 amendments
for the Anchorage teleconference site.
Number 95
MR. RIZER identified himself as a 24 year resident and a
commercial fisherman for the last 22 years. He reviewed
past history on the inherent risk of skiing bill concept and
claimed the bill this year was being supported in a polished
campaign to convince the legislators to pass the "self-
interest legislation." He criticized the support for the
bill which, he said, went from increasing tourism to
attracting investment monies into Alaska on the promise of
bringing the inherent risk of skiing laws into line with
other states.
MR. RIZER quoted lawyers for Seibu as wanting to stop skiers
from bringing suit by using summary judgement provided in
this bill as a device to decide if inherent risk of skiing
was at fault or the area operators were negligent.
MR. RIZER quoted MR. HEISER, Director of Mountain Operations
at the Alyeska Resort, as complaining that Seibu and to
spend $150,000 to $175,000 in legal fees within the last
couple of years, along with insurance costs which had risen
from 6 to 10% of operating costs. MR. RIZER claimed Seibu
never explained the reason for the legal fees or broke down
the cost of the insurance for the various components of the
resort.
MR. RIZER explained that Seibu, while bragging about their
unenviable safety record, grossed over $7 million last year,
but said they could not afford the legal fees. He accused
Seibu of being the driving force behind SB 44, and he quoted
SENATOR KELLY as testifying that with this bill in effect,
the RIZER tragedy would not have occurred.
MR. RIZER claimed the legislation would put all of the
burden on the skiers, in the sense that all skiers - even
children, beginners, and foreign tourists - should be able
to assess these broad, and sometimes hidden risks. He said
the area operators depended on signs and warnings of certain
conditions to absolve them of negligence. MR. RIZER said he
was shocked at the attitude of Seibu's upper management and
legal advisor.
MR. RIZER explained his son, BART, died because he became
trapped on an open run in the middle of the bowl in deep,
bottomless snow in a pocket containing a waterfall and a
stream bed. He thought if SB 44 had been in effect, Seibu
could have been successful in having the case thrown out of
court by summary judgement, because stream beds are listed
as an inherent risk.
Number 154
MR. RIZER said he had been told by Seibu that in order to
get information on the investigations or procedures, he
would have to go to court. He reviewed what he considered
to be insensitive testimony from the attorneys for Seibu on
his child's death. He thought their attitude was consistent
with the bill, and he claimed Alyeska was way over its quota
of skiing deaths.
MR. RIZER said his information was all based on his
experience and his wish to have something good come out of
his son's tragedy. He said they had only been able to
donate his son's corneas, and he lamented the insensitive
treatment he felt they had received from the attorneys for
Seibu.
MR, RIZER reminded the committee of Rule 82 in Alaska law
that basically states that if you bring a frivolous suit
against a party, and are not successful, you are liable for
all of the defense costs, and he thought this was a strong
deterrent against frivolous lawsuits.
Number 227
MR. RIZER quoted the Supreme Court findings that Alaska's
current inherent risk of skiing statute is fair to both the
skier and the ski area operator. He asked if it was right
for the legislature to be lobbied by a self-interest
industry to try to change a law that only last year was
declared fair by the Supreme Court. He concluded with an
impassioned plea to the Judiciary Committee to kill SB 44.
SENATOR LITTLE thanked MR. RIZER for his involvement and
expressed condolences to he and his family.
SENATOR JACKO asked MR. RIZER about the industry average of
one death in one million as to whether it was a United
States average or international. MR. RIZER explained the
figure was compiled by the State of Colorado pertaining to
their skiing industry there which has over 11 million skier
visits per year, and he said the statistics weren't
comparable to the number of skiers in Alaska.
SENATOR JACKO asked for the number of skiers per year at
Alyeska, and MR. RIZER was only able to give an estimate of
43,000 which included the tourist season, and not just the
skiing season. He said Alyeska was not very accurate in
their figures.
Next in Anchorage, SENATOR TAYLOR called on RON SWANSON,
Director for the Division of Lands, who said he was
available to answer questions.
SENATOR TAYLOR said he had seen an amendment to place the
Department of Natural Resources in the position of reviewing
plans and asked MR. SWANSON if he was going to testify on
that amendment. MR. SWANSON had not seen the amendment.
SENATOR TAYLOR described Amendments #10, #11, and #12 as
proposed by the Department of Natural Resources, beginning
with Amendment #10 with changes on page 5, line 7 to delete
"public safety" and insert "natural resources." This evoked
a response from RAGA ELIM, Special Assistant to COMMISSIONER
OLDS in the Department of Natural Resources.
Number 289
MR. ELIM explained he had worked with SENATOR TAYLOR'S staff
as well as the Department of Public Safety to prepare the
amendment. He also explained it would consolidate the
review of the operational plans, which would be submitted by
the ski operators, because Alyeska is on state land. He
further explained the amendment was initiated by the
Department of Public Safety, and they were doing the present
review as a matter of default rather than design.
MR. ELIM said the Department of Natural Resources would be
getting into the ski business with the opening of other ski
areas on state land at Hatcher Pass and Girdwood. The
federal government would retain authority to review
operational plans on U.S. Forest Service lands, however.
SENATOR TAYLOR asked if there was anyone with knowledge or
expertise in this area, and MR. ELIM deferred to MR.
SWANSON.
MR. SWANSON described training sessions by the Forest
Service concerning the operation of ski slopes in this year
of transition between the U.S. Forest Service and the State
of Alaska.
SENATOR TAYLOR inquired as to who does the investigation of
accidents or follow-up on the ski plans, and he noted plans
had been submitted from Alyeska and Eaglecrest.
MR. SWANSON explained that each individual ski plan would
have the accident information in it, and the type of
accident would determine the person, or persons, doing the
investigation.
Number 325
SENATOR TAYLOR wanted some further information on who checks
on the accidents at this time, and MR. SWANSON said it would
be the Department of Public Safety when a life is involved.
SENATOR TAYLOR asked who it would be when it is other than a
fatality, and MR. SWANSON said, if SB 44 is passed, it would
depend on the activities.
MR. RIZER offered to give some details from their situation,
and SENATOR TAYLOR gave permission. MR. RIZER explained
STATE TROOPER MICHAEL OPALKA came down to investigate, but
he wasn't a skier so he had to be taken to the scene by MR.
HEISER and MICHAEL GRANDINETTI, who also seemed to be
involved in the investigation. MR. RIZER said the U.S.
Forest Service did not investigate because they said they
were not asked to do so.
SENATOR TAYLOR pushed for more information, and MR. ELIM
explained the operational plan contained procedures that
must be in the plan. MR. ELIM suggested a rescue
investigation follow-up also be included in the operational
plan, which would then be reviewed by Department of
Resources or Public Safety to insure compliance with the
plan.
Number 365
SENATOR TAYLOR asked whether it depended upon whose land the
accident happened as to follow-up, and MR. ELIM said, at
present, the Department of Public Safety is reviewing some
of these plans for the federal government. He explained the
new relationship with Alyeska as the land was selected by
the state and ownership passes to Alaska.
SENATOR TAYLOR opened the meeting to testimony from the
audience and called on DAVID LOWE.
MR. LOWE identified himself as an outdoorsman, an avid
skier, a ski instructor, a ski mountaineering advisor for
the National Ski Patrol, a mountaineering ranger for the
National Park Service in the Grand Teton National Park, who
has been involved in about 30 search and rescue operations
per year. He participated in the rescue of climbers in
Denali Park, and he had used all of his background to
formulate his awareness of hazards in the outdoor
experience.
MR. LOWE also drew on his experience to claim that more than
90% of the deaths he had seen were preventable. He accused
society of thinking the risks can not be controlled and are
part of the inherent risk. He claimed SB 44 continues to
reinforce the idea that nothing can be done about the
inherent risks of skiing; therefore, the ski areas should be
held blameless in the event of an injury to a skier. He
outlined the preventative aspects of reducing the risk of
skiing, and he praised the encouragement that children
receive in learning to ski.
Number 426
MR. LOWE thought SB 44 leaned too much towards absolving the
ski areas of any responsibility and became special interest
legislation, giving more protection to the ski areas and
less to the public. He used the recent tragedy to
illustrate his point of how safety is being ignored to
protect commercial interests, and he described the weather
conditions the day of BART RIZER'S death in the bottomless
powder snow. He also described the lack of care given by
Alyeska to the incident when it was discovered he was
missing. He explained how the death of the RIZER boy could
have been avoided with better procedures and communication.
MR. LOWE explained how the RIZERS were using the energy from
their grief to work towards making the slopes safe for all
children and how Alyeska was stonewalling behind the
corporate veil to avoid any perception of liability. He
questioned the concern by Alyeska for the general public and
suggested they should have taken a more proactive approach
in discussing the accident with the Alyeska staff, ski
patrol, and with interested members of the public. He
claimed there had been no voluntary change by Alyeska to
accept any admission of liability, and he discussed the
proactive approach as being a better way of dealing with the
tragedy.
Number 486
MR. LOWE said Alyeska needed to learn something from Johnson
& Johnson in the tylenol scare some years ago, at a time
when Alyeska should be subjecting itself to a serious
introspective review of health, safety, and public relation
policy, rather than asking for further protection from
liability.
MR. LOWE urged the committee not to pass SB 44 since it
would only encourage further neglect of important health and
safety issues that should be addressed by Alyeska and other
ski areas within the state. He questioned why a special
interest group should receive additional protection, when
they had previously shown a tendency to evade responsibility
for their actions. He thought additional ski areas in
Alaska should be welcomed, but the legislature should also
send a message that health and safety of Alaskans comes
before corporate profit.
Number 512
SENATOR TAYLOR questioned MR. LOWE about his length of time
in skiing activities, and MR. LOWE said he been active for
about 40 years. SENATOR TAYLOR asked him about accidents he
had seen. MR. LOWE explained he had seen many of them, and
he described the injuries he had received skiing.
SENATOR TAYLOR asked him if he had ever sued anyone and
whether he had ever testified in a ski suit. MR. LOWE
answered "no" to both questions. SENATOR TAYLOR questioned
him closely as to any involvement by MR. LOWE in a ski suit,
and he always said no.
MR. LOWE explained accidents were fairly easy to avoid if a
proactive approach is taken, do careful documentation, and
check all of the nooks and crannies before closing the
mountain. He also explained those procedures can be put in
place to prevent suits.
SENATOR TAYLOR questioned MR. LOWE as to how many years he
had spent in the ski patrol, and MR. LOWE answered about 3
years total here in Alaska - mostly at Alpine Glow.
SENATOR TAYLOR next invited PATTY RIZER to testify.
Number 530
MRS. RIZER identified herself as coming to Alaska in 1969,
has taught at the University of Alaska for 21 years, and has
no special interest in the bill since she is not a skier any
more. She stipulated that SB 44 had nothing to do with her
pending lawsuit because of the death of her son. She
thanked SENATOR TAYLOR for allowing her to testify on SB 44.
MRS. RIZER expressed her belief that SB 44 goes against the
will of the Alaskan people, and she recalled a proposition
several years ago that talked about proportionate fault. At
that time, she said, an overwhelming number of Alaskans
voiced support for individual responsibility, but she
characterized SB 44 as being narrow minded in self interest.
MRS. RIZER outlined the background of SB 44, which is
similar to one introduced last year, and she quoted MARC
BOND as urging political support for the new bill, SB 44, to
ask legislative candidates how they stood on the bill, and
to contribute to their campaigns if they supported the
concept.
MRS. RIZER said this left her feeling cynical, because it
seemed everyone wanted immunity from their consequences,
their negligence, and their recklessness. She named the
business interests that supported this legislated immunity
from responsibility and characterized the tort law, which
directs business to behave safely, as a type of social
insurance.
MRS. RIZER explained there had been a concerted effort to
change tort law to protect their profits, and she suggested
Seibu was involved in the ski operator immunity amendments.
She admitted to a strong opinion and explained the trigger
for her was the deception used by manufacturers and
insurance companies to convince the public that our legal
system and laws need a major overhaul.
MRS. RIZER addressed the sponsorship of SB 44 by SENATOR
KELLY and went point by point as to his opinion beginning
with "trying to strike a balance between protecting skiers
and ski area operators." To make her point, she read from
both the bill and the statute and summarize the Supreme
Court's finding as "an area operator needs to be
responsible just as any landowner would be."
TAPE 93-26, SIDE B
Number 001
MRS. RIZER quoted the Supreme Court on the Hiibschman Case
as confirming the skier has inherent risks and so does the
area operator. She felt the inherent risk of skiing was
adequately covered in present law, and she quoted SENATOR
KELLY as saying SB 44 does not absolve the ski areas from
negligence.
MRS. RIZER spoke of the difficulty in finding legal counsel
to take their case, while spending $50,000 to try to get
answers from Seibu, and being unable to find out what really
happened. She claimed they were forbidden to talk to Seibu
employees. MRS. RIZER said she had not received a trooper's
report or a death certificate.
MRS. RIZER quoted SENATOR KELLY as saying ski area operators
must prepare and obtain approval from the Commissioner of
Public Safety or the managing federal agency for a plan of
operation. She said everyone is responsible all ready, and
she reviewed the agencies in charge of plans.
MRS. RIZER quoted SENATOR KELLY'S contention the bill would
provide for a qualified ski patrol as a reason to sponsor
the bill, and she said ski resorts Outside were hiring more
professionals, which is the trend. She noted the change in
the Ski Patrol manual over the last 6 years, with most of
the safety procedures removed and stripped of any good
enforcement sense.
MRS. RIZER also quoted SENATOR KELLY as saying the bill
would establish and maintain a tramway signing system, but
the Department of Transportation all ready has these
requirements. SENATOR KELLY also claimed savings could be
passed on to skiers in the form of lower lift ticket prices.
She noted that since Colorado put their similar bill in
effect, every resort, but three, has gone up in ticket
price, and no state has ever lowered its prices.
MRS. RIZER quoted SENATOR KELLY as claiming the bill would
encourage continuing development of ski resorts in Alaska,
and she thought this might be true if the new resorts could
be assured of relief in the form of summary judgement. She
didn't think more skiers would come to Alaska because the
ski resorts would have no responsibility to protect them.
With the passage of SB 44, MRS. RIZER said Seibu intends to
develop the Winter Creek area, and she described the area as
treacherous, dangerous, and avalanche ridden.
MRS. RIZER quoted SENATOR KELLY as claiming Alyeska would be
transformed into a world-class ski resort which would
attract winter travelers to Alaska from all over the world,
encourage other ski operators to expand in Alaska. She
found it difficult to compare the numbers coming to Alaska
with those to Colorado or Utah.
MRS. RIZER claimed that since Colorado passed their version
of SB 44, they have had the deadliest ski season since 1986,
three times the deaths from the year before. She quoted the
ROCKY MOUNTAIN NEWS as noting their ski price tickets have
gone up. In the COLORADO SPRINGS GAZETTE, she quoted
another article stating insurance premiums for ski resorts
decreased 10% in the 1989-90 season, and 6.9% the year.
Insurance rates were going down before their version of SB
44, and she melded this statistic with safety records not
legislation.
MRS. RIZER explained the Anchorage School District decided
not to send their students down to ski if no one was
responsible.
MRS. RIZER said season pass holders had to sign a release
indemnification and covenant that says, in part, "A season
pass holder hereby releases Alyeska Resort from any and all
claims arising from, or related to the participation of the
season pass holder in winter activities, including skiing
and snowboarding. Claims mean any claim, liability, or
cause of action for any kind for personal injury, loss of
consortium, property damage or death, made against Alyeska
Resort arising from or related to the participation of the
season pass holder in winter activities, including skiing or
snowboarding at or near Alyeska, whether arising from the
acts, omissions, or the negligence of Alyeska Resort or any
other cause." She thought it was incredible that people
would sign away all of their rights.
Number 070
SENATOR TAYLOR asked MR. SWANSON, Manager at Eaglecrest, if
he had people sign a form as described by MRS. RIZER. MR.
SWANSON said they had a form the season pass people sign
saying they are aware of inherent risks of skiing, and he
indicated it was a notification - not a release. MR.
SWANSON said the notification also included refund
procedures.
SENATOR TAYLOR asked MRS. RIZER for a copy of the release,
before inviting her to continue.
MRS. RIZER addressed the bill, CS FOR SENATE BILL NO.
44(L&C):
1. page 3 line 13 (b) - delete (as interpreted by the
Alaska Supreme Court).
2. page 3, line 27-30 - delete portions that attribute
injury to things such as rocks.
3. page 5, line 1 - wanted answers to questions about
the plan.
4. page 7, line 2 - had questions about the signs - saw
a sign with "STOB" on it.
5. page 8, line 12 (4) - suggested deleting "man-
made structures." Are these inherent risks?
6. page 8, line 22 (4) - many of the slopes are never
groomed, but always open.
Number 149
7. page 9, line 10 (g) - reference to (e)(5) has been
changed - the WARNING lacks responsibility by the ski
resort.
8. page 10, lines 20-22 - lines contrast with page 12,
line 13, (collision with other skiers).
SENATOR TAYLOR asked MRS. RIZER for more explanation on this
one, and they discussed the contrast in inherent risk.
9. page 12, line 4 - problems with interpretation of
"inherent danger and risk of skiing."
10. page 11, line 11-15 (e) - suggested the inclusion
of "rebuttable" before "inclusion." Also, young children
can't read signs and some international visitors don't
read English.
11. page 12, line 9-11 - delete man-made items.
MRS. RIZER concluded her testimony.
Number 222
SENATOR KELLY explained that when he sponsored the bill he
had no idea of BART RIZER'S tragedy, and if the facts are
correct, Alyeska was clearly negligent in that incident. He
claimed there were provisions in the bill that would help to
make certain his tragedy would not happen again, and he gave
the example in the bill of a required map, a trained ski
patrol, and additional safety procedures in place.
SENATOR KELLY claimed there have been substantial changes
made to the legislation since the introduction, many at the
behest of the RIZERS. He explained the anti-liability
language would be deleted from all season passes, and he
related what was told to Alyeska.
SENATOR KELLY urged people to amend the bill and to error on
end of safety, but be certain there will be a ski area to
use. He explained the ski slopes in Alaska were a major
economic player and for the future even more so. He
cautioned about destroying an industry in the state because
of one tragedy, and he reminded the participants that
Alyeska was operating a lawful business. He stressed no ski
operator wanted a ski accident to happen and most know how
to run a safe operation.
SENATOR KELLY explained why he thought the operation of
Alyeska would be improved under the terms of SB 44, and he
asked for some perspective on the accident. He reviewed
some accidents he considered the fault of the skier, and he
asked for a balance in amending the bill.
SENATOR KELLY said he hoped the RIZER'S involvement would
result in a stronger bill that could be used by all of the
ski resort operators.
SENATOR LITTLE questioned the season pass waiver, and
SENATOR KELLY said there was a proposed amendment to remove
the waiver language.
SENATOR TAYLOR share SENATOR KELLY 'S concerns about a
balanced bill so the facilities can remain open, grow, and
develop. He thanked the staff from Eaglecrest who had come
to support the bill, and indicated they had never been sued.
He hoped that one tragic loss would not become a torrent,
and he was going to asked his staff to research insurance
costs.
Number 331
SENATOR KELLY enumerated the costs of insurance, attorneys,
settling costs, and medical costs if a suit is settled. He
described Seibu as a world-wide corporation, and Eaglecrest
as a Juneau cooperative, but he claimed it is a larger issue
than just Seibu. He described the wide range of support for
the bill, not only ski resorts, but various municipalities.
He explained that Anchorage has asked for an exemption for
their small rope tow at Russian Jack Springs because they
can't afford all that is required in the bill.
SENATOR KELLY thought more investigation would have to be
made on the claims of death in Colorado to understand what
had happened there as to weather, usage level, snow
conditions, and related details. He expressed assurance
that the legislation would make for safer skiing and fewer
accidents.
SENATOR HALFORD referred to the Hiibschman case, and asked,
prior to that case, if SENATOR KELLY was satisfied with the
existing statute on inherent risks of skiing. SENATOR KELLY
said he was not aware at that time of the existing statute,
or the Hiibschman case until January of 1993.
SENATOR HALFORD thought the legislation did more than just
addressing the case, and he reviewed what he considered the
negative aspects of the Hiibschman case. He would prefer to
address the finding by the Supreme Court rather than SB 44.
SENATOR TAYLOR kept the bill over time to allow for the
testimony as presented, and his committee members had to
leave for other meetings. He promised the bill, SB 44,
would be returned to committee, and he apologized to MR.
BOND for not addressing his amendments.
There being no further business to come before the
committee, the meeting was adjourned at 3:25 p.m.
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