Legislature(2007 - 2008)BELTZ 211
02/20/2008 01:30 PM Senate JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HB197 | |
| HB25 | |
| HB182 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 25 | TELECONFERENCED | |
| + | HB 182 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| = | HB 197 | ||
HB 25-RECREATIONAL LAND USE LIABILITY/ADV. POSS
1:35:19 PM
CHAIR FRENCH announced the consideration of HB 25.
REPRESENTATIVE PAUL SEATON, sponsor of HB 25, explained that the
bill encourages the expansion of recreational opportunities for
Alaskans by increasing liability protection for landowners who
allow free recreational use of their land. This is achieved by
raising the standard of care that a landowner owes for allowing
someone to use their land. The bill provides immunity from suit
unless there is gross negligence, intentional misconduct, or
reckless endangerment. HB 25 is consistent with practices in 45
other states.
REPRESENTATIVE SEATON said that the current simple negligence
liability standard applies to unimproved land. That generally
makes landowners uncomfortable and the result is that they're
more inclined to restrict access to their land. He clarified
that this bill does not address landowners who charge to use
their land and it does not apply to municipalities and other
governments. He highlighted letters and resolutions from diverse
groups and private citizens supporting HB 25.
1:37:04 PM
SENATOR THERRIAULT joined the meeting.
SENATOR HUGGINS asked how airstrips are treated.
REPRESENTATIVE SEATON explained that current law says that for
abandoned airstrips and unimproved land the standard for the
private landowner is gross negligence, intentional misconduct,
or reckless endangerment.
SENATOR HUGGINS asked about the hypothetical scenario where he
allows free use of a snow machine track on his property.
REPRESENTATIVE SEATON explained that as long as you aren't
charging and you aren't grossly negligent you aren't liable. But
if you were to put up a cable across the trail and someone were
to get hurt as a result, that would be intentional misconduct
and you'd be liable. But if someone is accidentally hurt while
using the snow machine track or getting ready to use the track,
the gross negligence standard would apply.
1:41:30 PM
SENATOR HUGGINS asked if he could subsequently deny access to
that hypothetical snow machine track.
REPRESENTATIVE SEATON said he could. He added that the bill
specifically protects landowners from adverse possession or
prescriptive easement claims by someone using the property for
free for recreation.
1:44:08 PM
SENATOR HUGGINS asked if this affects traditional trails running
through private property.
REPRESENTATIVE SEATON replied this wouldn't change the aspect of
traditional trails, but it is important to separate recreational
use from access. This bill doesn't address the situation where
someone is using a road on private property to gain access to a
recreational area.
CHAIR FRENCH referred to the scenario Senator Huggins posed and
said should this bill pass the landowner who allows access would
have a legal problem only if they are guilty of gross
negligence. But once a no trespassing sign is posted, the
standard of care reverts to negligence. Essentially the standard
reverts to what the law is now. He asked if that scenario had
been discussed and if he agrees.
1:46:54 PM
REPRESENTATIVE SEATON replied that was discussed and it's a
different scenario if someone is criminally trespassing by
disregarding the no trespassing signs. "You're thrown into a
whole different series of obligations when you have criminal
trespass." This bill allows free recreational access as compared
to someone trespassing.
CHAIR FRENCH restated that if this becomes law the standard of
care becomes gross negligence, but the standard of care if
access is denied is negligence.
REPRESENTATIVE SEATON highlighted AS 09.65.200, which is
immunity for unimproved land. "So if it's unimproved land the
standard is already gross negligence." This involves improved
land. It becomes difficult because there are conflicting
statutes. For example the standard for abandoned runways is
gross negligence. And if you're allowing someone to use your
private airstrip it's gross negligence for take offs and
landings, but it's a question with regard to walking to and from
the plane. If the land is unimproved the standard is gross
negligence, but if you've mowed the grass, set a snow machine
track, or it you're too close to a barn then the standard is
simple negligence. It's confusing for the public and it's
difficult for the property owner to know if somebody could get a
proscriptive easement if they let someone use their land. This
gives the landowner confidence that he or she can help provide
recreation in Alaska. "Gross negligence comes down to choices,"
he said.
1:50:07 PM
CHAIR FRENCH consulted Blacks Law Dictionary about the
difference between negligence and gross negligence so that the
committee has in mind the consequences of this bill. He read the
following:
Negligence. The omission to do something which a
reasonable man, guided by those ordinary
considerations which ordinarily regulate human
affairs, would do, or the doing of something which a
reasonable and prudent man would not do.
Negligence is the failure to use such care as a
reasonably prudent and careful person would use under
similar circumstances; it is the doing of some act
which a person of ordinary prudence would not have
done under similar circumstances or failure to do what
a person of ordinary prudence would have done under
similar circumstances.
Gross negligence. The intentional failure to perform a
manifest duty in reckless disregard of the
consequences as affecting the life or property of
another.
It is materially more want of care than constitutes
simple inadvertence. It is an act or omission
respecting legal duty of an aggravated character as
distinguished from a mere failure to exercise ordinary
care. It amounts to indifference to present legal duty
and to utter forgetfulness of legal obligations so far
as other persons may be affected. …
CHAIR FRENCH opened public testimony.
1:52:32 PM
GEORGE SCHAAF, Executive Director, Trail Mix Inc, spoke in
strong support of HB 25. Trail Mix is a local non-profit trails
organization that was created in part to address complicated
landownership problems. He explained that Southeast Alaska has
lots of trails and recreational facilities that may begin on
public land but any given trail may cross back and forth from
federal land, to state parks land, to city land, and to private
land. Because no one was interested in maintaining 20 percent of
a trail, Trail Mix came along to coordinate trail building and
planning efforts in the Juneau community and borough. He said he
believes that HB 25 is a well-considered measure that protects
the interests of landowners and recreational hikers.
MR. SCHAAF reiterated that landownership issues in Southeast
Alaska are complicated given the terrain and the amount of
public land that's there. In Juneau three trails in particular
will be affected by this bill. The trails going up Perseverance
Basin and Mount Juneau cross private land owned by the Keen
family. They've been fantastic supporters of trails and grant
public access, but liability has always been an issue. This bill
will go a long way in alleviating some of their concerns.
Another trail at Tee Harbor has recently led to some tension
among community members because the trail access crosses a
corner of private land. Potentially that trail will be rerouted
at significant expense because the property owner is afraid of
liability. This bill will help address that issue, he said. On
behalf of the 350 members of Trail Mix, he restated support for
HB 25. This will go a long way toward supporting outdoor
recreation and the benefits that provides the community.
SENATOR WIELECHOWSKI asked if he's aware of anyone who has been
sued for this.
MR. SCHAAF said not in Juneau but the concern is out there.
Folks in this community have been very trusting and have wanted
to maintain open access to recreational areas. You never know
what will happen in the future, he added.
1:56:51 PM
DAVE BRANN, Kachemak Nordic Ski Club reported that he's worked
on recreational trails in the Homer area for about 25 years. A
long-standing concern has been trails that cross a variety of
properties including private, borough, state, and Native. In
fact, potential trail access across private property has been
limited because of liability concerns. People in the Homer area
have been generous in allowing trail use on their property but
there is increasing concern about liability. On behalf of the
Kachemak Nordic Ski Club he stated strong support for HB 25. He
added that he allows free recreational use of his property and
he finds existing statutes to be very confusing; a lot of people
don't know what is and isn't allowed.
1:58:44 PM
LEAH JENKIN, Homer resident said she owns 10 acres near an
equestrian center and ball parks and the state built an access
road through part of her property. Although she supports both
facilities, she's worried about liability. "When we're talking
about children and horses, a landowner needs all the protection
they can get." She urged the committee to pass HB 25.
2:00:37 PM
MICHAEL SCHNEIDER, Attorney at Law, reported that he's lived in
Anchorage since 1975. He said his testimony is based on two
assumptions. The first is that this bill was heard by the Senate
Resources Committee last session. Second, he assumes that the
committee received a copy of his 3/16/07 letter to
Representative Seaton addressing his concerns about the bill.
CHAIR FRENCH told him that both assumptions are correct.
MR. SCHNEIDER said he takes issue with the overriding premise of
the bill because there's no way that folks who are interested in
public access and trail use can figure out whether a landowner
has or has not given permission to use their land. They can't
check at the recorders office, for example, because nobody has
to do anything official to obtain the immunity status set forth
in the bill. His letter suggests a way around that problem so
that there would never be any doubt about whether or not a given
property is open for public use and the owner is thus entitled
to immunity.
2:03:30 PM
MR. SCHNEIDER suggested that the bill encourages fraud and
perjury by property owners who may be sued in the face of a
death or serious injury. Hypothetically the insurance agent will
inform the property owner that barring gross negligence, he or
she will be immune from suit if the property is open to free
recreational use. He surmised that that that defense will be
asserted 100 percent of the time even though the property may be
open for recreational use less than 100 percent of the time.
MR. SCHNEIDER observed that there seems to be a foregone
conclusion that if someone engages in a specific conduct, such
as pulling a cable across a trail, that amounts to grossly
negligent conduct. But whether or not the particular conduct is
grossly negligent will be a jury question in virtually every
case. Also, he does not agree with the sponsor's statement that
the bill is of no benefit to someone who charges for use of
their land. Anybody after the fact can divert funds toward
hazard remediation and claim the benefit of this loosely worded
legislation, he said. Furthermore the term "land" includes a lot
of things - including machinery, which would make it difficult
to prove liability. It would provide broad immunity under
circumstances where the public is receiving nothing tangible in
exchange.
MR. SCHNEIDER offered his view that from a public policy
standpoint the sponsor's intent is a good idea, but the bill
needs many things fixed or it's a give away of constituents'
rights for virtually nothing in return.
2:07:02 PM
ROBERTA HIGHLAND, Homer stated strong support for HB 25. She
agrees with Mr. Schneider that it's important to get things
right, but she can't imagine that the 45 states that have this
law haven't already addressed every potential legal issue. In
her view the litigation-happy standard in this country
negatively affects quality of life. She'd like attitudes and
laws to change such that personal responsibility is given back
to the individual. HB 25 begins that process. She explained that
she and her husband welcome non-motorized use on the trails on
their land and this bill would relieve their concerns about
litigation. Trails are an important part in the enjoyment of
life.
2:09:11 PM
PHILIP PAUL WAGONER, Attorney at Law and Anchorage property
owner, said he concurs with Mr. Schneider. He recognizes the
good will intent of the bill but it provides such blanket
immunity to persons that engage in culpable conduct that it will
ultimately shift the responsibility for that conduct to the
coffers of the state. He gave examples of several cases where he
represented people who were severely injured by cables that were
strung across trails. The way the bill is written if any
landowner directly or indirectly allows free recreational
activity, then it's blanket immunity even if they stretch a
cable across a trail. It's also a situation where a landowner
could allow a select group to engage in recreational activity
without charge and then stretch a cable across the trail for the
general public. He expressed the view that the bill really needs
to be reworked. "It's always problematic when laws are passed
that infringe on constitutional rights" We sometimes forget the
fact that the writers of the U.S. and Alaska constitutions
granted a right to a jury trial as it existed in common law.
That means if someone puts up a dangerous obstacle on developed
or undeveloped land they're liable and the resulting harm is
shifted to their coffers and not to the victim or the public. He
asked the committee to send the bill back for fine-tuning so its
purposes can be achieved without providing blanket immunity to
people who engage in conduct that will cause serious harm.
2:13:11 PM
CHAIR FRENCH asked if he had reviewed Mr. Schneider's March 16,
2007 letter.
MR. WAGONER said he had and he concurs with his comments. He
understands the good intent but it's dangerous to grant
immunity. "As sure as we're all here on this Earth today, if
this bill is passed in its present form, somebody's going to get
seriously hurt due to culpable conduct and the person is going
to escape and … their insurance company is going to escape and
the ultimate harm is going to be left to the victim and or the
public coffers."
2:13:51 PM
SENATOR McGUIRE joined the meeting.
2:14:13 PM
JACK MOSBY, former President, Alaska Trails, relayed that this
statewide non-profit group was formed to enhance Alaska trail
experiences by supporting sustainable trails through advocacy
and education. He's aware that liability is a continuing issue
with projects in Anchorage, MatSu Valley, and Fairbanks. It
sounds as thought it's an issue in other places in the state as
well. He reiterated the group's continuing support for HB 25.
CHAIR FRENCH asked if he's aware of any lawsuits that hinged on
allowing or not allowing access - instances where innocent
homeowners have been dragged into a legal dispute because of
accidents on trails.
MR. MOSBY replied he's not aware of any such cases.
CHAIR FRENCH stated his intention to hold the bill for a
subsequent hearing.
2:16:17 PM
REPRESENTATIVE SEATON distributed two documents to respond to
the issues Mr. Schneider raised in his letter. One discusses
gross negligence and associated case law. The second is an
opinion from legislative legal services about the hypothetical
circumstance where a landowner strings a cable on their property
that results in the decapitation of a person who is using the
property for recreational purposes. He also highlighted that
this bill removes the ambiguity between improved land and land
that is mowed or a hayfield close to a building. Under current
Alaska statute the standard for unimproved lands is gross
negligence, but unless protected by HB 25 the hayfield could be
considered improved land which has the simple negligence
liability standard.
CHAIR FRENCH said the committee would look closely at the
documents. [HB 25 was held for a subsequent hearing.]
| Document Name | Date/Time | Subjects |
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