Legislature(1999 - 2000)
04/12/1999 03:23 PM House L&C
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* first hearing in first committee of referral
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= bill was previously heard/scheduled
HB 146 - LIABILITY FOR COMMERCIAL REC ACTIVITIES
Number 1050
CHAIRMAN ROKEBERG announced the committee's next order of business
is HB 146, "An Act relating to civil liability for commercial
recreational activities; and providing for an effective date."
Number 1075
KELLY SULLIVAN, Legislative Secretary to Representative Pete Kott,
Alaska State Legislature, came forward to present HB 146 on behalf
of the sponsor. Ms. Sullivan noted this is pretty straightforward:
Alaska has its great outdoor experiences like big game hunting,
sportfishing, kayaking and river rafting. There are a lot
businesses in Alaska that provide these experiences to the public.
Ms. Sullivan mentioned the tourism industry. House Bill 146 would
establish the responsibilities of the commercial recreational
businesses and the responsibilities of the participants in those
activities. The legislation addresses specific guidelines
operators and participants would follow in order to minimize the
possibility of accidents. Should an accident occur, the
legislation provides which party would be held liable. Current
legal uncertainties result in high liability insurance costs that
hurt a lot of Alaskan businesses, especially smaller ones. The
intent of this legislation is the avoidance of unfair and
unreasonable claims which make it difficult [for businesses] to
provide these recreational activities. The desire is to encourage
the continued availability of these recreational businesses. Ms.
Sullivan noted there are a few witnesses to provide testimony.
CHAIRMAN ROKEBERG indicated Representative Kott, the bill sponsor,
had joined the committee at the table.
Number 1188
MIKE WINDRED, Vice President, Marketing and Sales, Alaska Travel
Adventures, came forward to testify in support of HB 146. He
informed the committee that his company has several operations
throughout the state. Mr. Windred thanked the sponsor for bringing
the legislation forward, noting the bill has passed the House three
times in recent years but has been held up in the Senate for
various reasons. Mr. Windred believes one of the basic ideas
behind this legislation is that participants in many of these
activities assume some inherent risk when purchasing that
recreational activity. However, he does not believe the
legislation would absolve any of the operators from negligent
actions. The bill establishes some basic performance standards the
operators must adhere to that are not currently specified by Alaska
Statute. The legislation would affect a business like Alaska
Travel Adventures by requiring it to provide good training to its
employees, maintain its equipment, and provide a good explanation
of the inherent risks to participants. This is not currently set
out and should increase the level of service within the industry.
Number 1262
MR. WINDRED thinks the primary benefit to his business would be a
reduction in the costs of what he termed "nuisance suits." Mr.
Windred described that these nuisance suits would be lawsuits for
damages specifically at the level of a company's insurance
deductible - $10,000 for a business like his - so that the
insurance company would not be involved, at least for "the first
hit." He indicated these suits result in significant costs over
the long term because it is less expensive for the business to
settle them than risk lengthy litigation. Mr. Windred thinks the
legislation gives his business some standing to respond that the
participants had some amount of responsibility in undertaking the
activity. He commented that at least the legislation would give
the businesses a level playing field to begin with and he feels
certain it would reduce the money they pay out-of-pocket each year
for these nuisance suits. Mr. Windred described the example of a
nature hiker stumbling on a rock on the beach, cutting his/her
forehead. Mr. Windred's company would provide first aid, take the
person to the hospital, make sure everything checked out okay, and
six months later might be sued by that person for $10,000 to
$20,000 because the person's vacation to Alaska had been ruined or
for some other reason. He noted, "At the point that we've done
everything in our ability to ... make that right in terms of paying
a medical bill or treating them with first aid, et cetera. That
would be a lawsuit that I would certainly think ... probably
wouldn't be very valid, but at that amount, would be very difficult
for us to fight legally."
Number 1394
REPRESENTATIVE MURKOWSKI noted Mr. Windred's testimony that this
legislation would not preclude lawsuits for negligence on the part
of the tour company or operator. She noted the legislation does
define some areas of responsibility for operators, but she
expressed some doubt it covered, for example, a leaky raft.
Someone put into that type of situation by an operator should be
able to sue.
MR. WINDRED agreed someone in that situation should be able to sue
and indicated he thought that would be covered in the legislation
by the operator's responsibility to maintain its equipment. He
stated, "And in reality, that's probably almost more harmful to the
operator the way this bill is written, which is a good thing in the
industry, ... it'll ensure that as an operator, I don't send a
faulty piece of equipment out on tour."
REPRESENTATIVE HALCRO referred to the language, "explain to a
participant", on page 2, line 23, under "Responsibilities of
operators of commercial recreational activities.". He noted an
example of a white water rafting situation where the risks were
explained to the participants but someone was hurt and denied that
he/she had been informed. Representative Halcro said his concern
is with having some kind of a written disclosure. It does not look
like the legislation provides for that.
Number 1492
MR. WINDRED related participants in his company's river rafting
sign a sheet before the activity which basically says the
participant understands the safety precautions. These precautions
and inherent risks are gone through verbally. If the person
chooses not to sign that paper, or does not want to sign off on the
risks, at that point he/she has the opportunity to return to town
and not participate in the activity. Mr. Windred thinks if there
was no documentation, it would be more difficult for the operator
to win in that case.
REPRESENTATIVE HALCRO thinks some kind of written agreement would
probably be important in this legislation.
REPRESENTATIVE CISSNA noted she did not see anything in the
legislation regarding some kind of an assessment the operator might
need to perform when, for example a participant is intoxicated and
should not be allowed to engage in the activity. She questioned if
that is something that should ever be addressed in something like
this.
MR. WINDRED answered he thinks that would definitely be a gray area
and is probably a battle that would occur in court. He indicated
it would certainly behoove such an operator to inform a person the
operator feels the person is not prepared to take the inherent risk
or is a safety problem. Mr. Windred further indicated he thinks
there is some responsibility on the part of the participant to
evaluate his/her own fitness level for the activity.
Number 1677
STEVE BEHNKE, Executive Director, Alaska Wilderness Recreation and
Tourism Association (AWRTA), came forward to testify in support of
HB 146. Mr. Behnke noted his organization represents a couple
hundred of the types of companies Mr. Windred spoke about. AWRTA
members feel this kind of legislation is necessary to protect small
businesses in this arena. The organization's members depend on
providing experiences that have inherent risks. The kinds of
measures proposed by the legislation that help encourage safer
operations are major improvements over the current situation. Mr.
Behnke said it seems like a balanced approach to protect the
interests of AWRTA's members while also protecting the interests of
the participants.
REPRESENTATIVE MURKOWSKI pointed out the legislation limits
recreational activity to outdoor activity. She asked if there is
any specific reason for this, commenting she has done great damage
with a bowling ball. She noted the question might be best
addressed to the sponsor.
MR. BEHNKE responded he is the wrong person to ask because his
organization's members are all [outdoor] outfitters and operators
providing activities with obvious inherent risks. He said most
operators do currently require some of the kinds of steps in the
legislation, but it would apply to a broader range of companies and
help encourage them to be safer and more responsible operators.
Number 1817
REPRESENTATIVE BRICE mentioned that indoor climbing walls are
increasing in popularity, noting there are opportunities to perform
these kinds of formerly outdoor activities inside.
CHAIRMAN ROKEBERG commented the committee seems to have a question
about the limitation on outdoor activities vis-a-vis other rather
dangerous indoor pursuits. He asked if there is a reason for the
limitation.
REPRESENTATIVE KOTT indicated there was no intent to distinguish
the two, other than the fact that the visitor businesses who
primarily need this measure generally offer outdoor activities
within the category. He has no problem changing it to include
both, noting there are some climbing walls even he wouldn't attempt
to go up, given the constraints he has. Referring to bowling,
however, he noted, "If you get into establishing various types of
recreational activity and requiring each of the operator[s] to
provide some kind of documentation to be signed, then you have to
get into that whole quandary of whether or not when I go bowling
the operator there should have me sign a disclosure or some kind of
form understanding the problems and potential dangers."
Number 1989
CHAIRMAN ROKEBERG asked if Representative Kott had considered
establishing a new "prudent man rule" for sports activities, noting
he is half-joking but really half-serious.
REPRESENTATIVE BRICE asked if they simply redefined recreational
activity to mean "an activity usually undertaken outdoors for the
purpose of exercise", deferring to the lawyers on the committee.
REPRESENTATIVE HALCRO suggested simply the deletion of "outdoor".
REPRESENTATIVE MURKOWSKI answered if "outdoor" is deleted, this
would be "an activity for the purpose of exercise or education".
She could go to a seminar on throwing pots or grant-writing; she
does not think that is the intended direction of this definition.
Representative Murkowski thinks where the definition needs to go is
"those inherently dangerous activities", indicating there are
certain things like being on the water, ice climbing, et cetera,
that are inherently more dangerous than bowling. She indicated
that perhaps the discussion would occur in the next committee of
referral, the House Judiciary Standing Committee (Judiciary).
CHAIRMAN ROKEBERG mentioned contributory negligence in the case of
fishing and being "hooked" by a fellow fisherman.
Number 2136
REPRESENTATIVE HALCRO appreciates the intent of the legislation but
commented the Surgeon General's warning has been on cigarette packs
for almost 30 years and it hasn't stopped people from suing tobacco
manufacturers.
CHAIRMAN ROKEBERG questioned if it was Representative Kott's
intention to insert contributory negligence as a defense here.
REPRESENTATIVE KOTT replied that it was at least some extent.
There is some inherent risk to just about any activity. Certainly,
when a person is engaging in outdoor activities in Alaska, the risk
is a little more inherent, because of Alaska's terrain, than
perhaps in some of the other states. He noted Alaska's good
tourist population, small state population, and the medium-sized
group of what he would term "mom-and-pop" commercial operators who
provide these types of environments for the state's visitors.
Representative Kott indicated he thinks these operators need some
assurance of protection from expensive lawsuits brought by people
who ignored the inherently risky nature of the activity they were
participating in.
Number 2266
TINA LINDGREN, Executive Director, Alaska Visitors Association
(AVA), came forward to testify in support of HB 146. As Mr.
Windred had said, this is legislation the AVA has supported and the
House has passed at least three times that she is aware of. It has
taken different forms because people start identifying other kinds
of recreational activities. At one time equine activities were
been included, another time skateboarding. Ms. Lindgren indicated
the number of bills on the subject is a strong case that the
legislation is needed. She emphasized a strong point of HB 146 is
that it sort of covers all of the outdoor activities. She thinks
the suggestion of including some indoor activities may be good and
perhaps this can be examined in Judiciary. Ms. Lindgren noted the
legislation is before the committee primarily at the request of
small businesses concerned about the cost of insurance and nuisance
lawsuits from people "who through their own activity have caused
some injury." She commented it is very similar to the skiing
reform bill passed several years ago. House Bill 146 has
participants agreeing to accept some level of risk and operators
agreeing that they have to provide a safe environment. Ms.
Lindgren stated AVA wholeheartedly supports the legislation.
REPRESENTATIVE MURKOWSKI questioned if this would really lower
insurance rates for the "mom-and-pops."
MS. LINDGREN replied she does not know - that is the hope. It
would be a tool companies could use. She does know that companies
currently are targeted by a lot of frivolous lawsuits from people
seeking financial gain.
Number 2471
REPRESENTATIVE BRICE referred to subsection (1)(B) on page 2,
beginning on line 26, "(B) the skills or equipment required to
participate in the commercial recreational activity that are not
apparent to an inexperienced participant;". He stated, "'The
skills or equipment required' rather than 'the skills...'"
[TESTIMONY INTERRUPTED BY TAPE CHANGE]
TAPE 99-38, SIDE A
Number 0001
REPRESENTATIVE BRICE continued, "...conjunction word."
CHAIRMAN ROKEBERG asked if Representative Brice wished to make a
conceptual amendment.
REPRESENTATIVE KOTT stated he has no objection.
Number 0025
REPRESENTATIVE BRICE moved Conceptual Amendment 1 to replace "or"
with "and". There being no objection, Conceptual Amendment 1 was
adopted. Subsection (1)(B) on page 2, beginning on line 26, as
amended by Conceptual Amendment 1, reads:
(B) the skills and equipment required to
participate in the commercial recreational activity that
are not apparent to an inexperienced participant;
Number 0050
REPRESENTATIVE HALCRO offered two friendly conceptual amendments.
He moved the addition of "and condition of health" on page 2, line
13, after "act within the limits of the person' abilities".
Representative Halcro indicated he thinks a negative incident
during an activity resulting from a person's health condition would
be the responsibility of the participant, because only the
participant knows his/her condition of health. He used the example
of someone with a bad heart. Representative Halcro noted his
conceptual amendment 3 would be on page 2, line 23, after "explain
to a participant", inserting "in writing", if that is acceptable to
the sponsor. Representative Halcro said he thinks that protects
all involved, even if it is just a sign-off sheet.
CHAIRMAN ROKEBERG stated the committee would address Amendment 2
first. The chairman expressed his approval, terming it "the fat
guy amendment." He indicated if a person is too out-of-shape to be
participating in an activity, the person should not be doing it.
REPRESENTATIVE KOTT noted he considers it a friendly amendment and
does not object. He thinks it is contained in the bill's original
language but it is fine to add that and clarify.
Number 0166
CHAIRMAN ROKEBERG questioned if there were any objections to
Conceptual Amendment 2, adding "condition of health" on page 2,
line 13. There being none, Conceptual Amendment 2 was adopted.
Subsection (2) on page 2, line 13, as amended by Conceptual
Amendment 2 reads:
(2) act within the limits of the person's abilities
and condition of health;
REPRESENTATIVE HALCRO moved Conceptual Amendment 3, adding "in
writing" on page 2, line 23.
CHAIRMAN ROKEBERG objected for purposes of discussion. He asked if
the sponsor wished to comment.
Number 0201
REPRESENTATIVE KOTT answered he would defer to Ms. Lindgren since
she is probably closer to these issues. He indicated he can
potentially see some problem in a situation where a previously
unforeseen risk is being explained.
CHAIRMAN ROKEBERG noted it can be problematic.
REPRESENTATIVE KOTT agreed it could be.
CHAIRMAN ROKEBERG commented he thinks it is warranted in certain
circumstances but perhaps not universally; that is his only
concern.
REPRESENTATIVE HALCRO withdrew Conceptual Amendment 3.
CHAIRMAN ROKEBERG noted that was his only concern there. The
chairman expressed that he would actually like to see a two-tier
thing here, indicating he was referring to a differentiation
between very risky activities and those of a more sedate nature.
Number 0287
REPRESENTATIVE MURKOWSKI posed a conceptual amendment concerning
children and dogs. On page 2, subsection (4), beginning line 16,
she recommended the use of "any minors under the participant's
control" to replace "the participant's children". She noted
whenever she goes out with her children she also always has other
people's children. On page 2, subsection (4), Representative
Murkowski indicated it is also her intention to include animals
under the participant's control, like a dog, not just animals the
participant might be using, like a horse.
CHAIRMAN ROKEBERG stated, "Any equipment, devices, or animals the
participant is using or under the participant's control."
REPRESENTATIVE MURKOWSKI spoke over, "or under the control of the
-- or animals under the control of the participant." She noted
this would include a person's dog.
CHAIRMAN ROKEBERG asked if there were any objections to Conceptual
Amendment 4, which includes everything on page 2, lines 16 and 17.
There being none, Conceptual Amendment 4 was adopted. According to
the above discussion, subsection (4) on page 2, beginning on line
16, as amended by Conceptual Amendment 4, reads:
(4) maintain control of the participant's person,
any minors under the participant's control, and any
equipment, devices, or animals the participant is using
or animals under the control of the participant;
Number 0453
REPRESENTATIVE BRICE made a motion to move HB 146, as amended, out
of committee with accompanying zero fiscal notes and individual
recommendations. There being no objection, CSHB 146(L&C) moved out
of the House Labor and Commerce Standing Committee.
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