Legislature(1993 - 1994)
01/21/1993 01:32 PM Senate L&C
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SENATE LABOR AND COMMERCE COMMITTEE
January 21, 1993
1:32 p.m.
MEMBERS PRESENT
Senator Tim Kelly, Chairman
Senator Steve Rieger, Vice-Chairman
Senator Drue Pearce
Senator Georgianna Lincoln
Senator Judy Salo
MEMBERS ABSENT
None
COMMITTEE CALENDAR
SENATE BILL NO. 44
"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 L&C minutes dated 1/19/93.
WITNESS REGISTER
Josh Fink, Committee Aide
Senate Labor & Commerce Committee
State Capitol
Juneau, Alaska 99811-1182
POSITION STATEMENT: Reviewed proposed amendments
for SB 44.
Mitch Gravo
Anchorage Convention & Visitors
2550 Denali, 17th Floor
Anchorage, Alaska 99503
POSITION STATEMENT: Commented on SB 44.
Mike Ford, Attorney
Legislative Legal Counsel
Division of Legal Services
Legislative Affairs Agency
130 Seward Street
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions on SB 44
Raga Elim, Special Assistant
Department of Natural Resources
400 Willoughby Avenue
Juneau, Alaska 99801-1724
POSITION STATEMENT: Answered questioned on SB 44
Gary Mendivil, Business Manager
Eaglecrest Ski Area
Juneau, Alaska 99801
POSITION STATEMENT: Answered questions on SB 44
Ted Lehrbach
Division of Insurance
Dept. of Commerce & Economic Development
P.O. Box 110805
Juneau, Alaska 99811-0805
POSITION STATEMENT: Answered questions on SB 44
Don Hitchcock, Director
Division of Risk Management
Department of Administration
P.O. Box 110218
Juneau, Alaska 99811-0218
POSITION STATEMENT: Answered questions on SB 44
ACTION NARRATIVE
TAPE 93-4, SIDE A
Number 001
CHAIRMAN TIM KELLY called the Labor and Commerce Committee
meeting to order at 1:32 p.m.
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.
There being no further business to come before the
committee, the meeting was adjourned at 3:25 p.m.
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