Legislature(2003 - 2004)
05/08/2003 08:05 AM 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
SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS
CHAIR SEEKINS announced SB 175, version \S, to be up for
consideration.
SENATOR FRENCH noted that bungee jumpers were added to the list
in the S version. He asked what spectrum of activities they
would cover and if dude ranches were added.
SENATOR ELLIS asked if there were dude ranches in Alaska.
CHAIR SEEKINS said he heard there were several dude ranch
organizations around Denali Park.
SENATOR FRENCH asked if the liability of his son's Solid Rock
Camp would be affected.
CHAIR SEEKINS said he didn't know if that would qualify as a
dude ranch, but most of those activities were covered under HB
176, livestock activities, on the floor today. He said they
would put SB 175 aside temporarily.
SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS
CHAIR SEEKINS announced CSSB 175(JUD) to be up for
consideration. He noted that bungee jumping and parasailing were
now in the bill.
MR. MIKE WINDRED, Alaska Travel Industry Association and Alaska
Travel Adventures, supported SB 175. He said he was speaking on
behalf of the industry and one of the larger companies. About 90
percent of the companies in the industry have five or fewer
employees, which means they have much less ability to absorb
increases in insurance costs. As nuisance suits go up and
insurance rates climb (theirs went from 10 percent of pretax
profits to 13 percent of pretax profits), it means that most of
their employees won't get a substantial pay raise. Most of their
company costs are fairly fixed and this bill would definitely
help them give their employees some of the money they had
planned on getting - for profit sharing and retirement and to
pay raises.
SENATOR OGAN asked if they provide those kinds of recreational
services.
MR. WINDRED replied they do everything - from lake canoeing,
hiking tours, the salmon bake, etc.
SENATOR OGAN asked if he thinks he has any responsibility to
inform people who are using their services that they are using
them at their own risk if this law is passed.
MR. WINDRED replied yes, they do have a responsibility to inform
participants of the inherent risks associated with the activity.
They have people sign a sheet of paper saying they are aware of
the risks and keep them for quite a while.
SENATOR OGAN said those sheets of paper are more like a waiver,
which is more like a psychological contract than a binding
contract, because at the end of the day, a person can still sue.
MR. WINDRED replied their sheets are not waivers; they are risk
assumption sheets. They explain both verbally and in writing
what the inherent risks are for that activity. They acknowledge
what those risks are and have the opportunity not to go at that
point. They are not waiving any rights to be able to sue.
CHAIR SEEKINS said he thought this bill limited any liability of
the providers of the sports events to negligence that is not
associated with the inherent risk of the activity.
MR. FORD said there is a provision on page 3, (c)(1), that
specifies negligence of a provider that was not the result of
the inherent risk.
SENATOR OGAN asked if it was an inherent risk if someone
incorrectly instructed you to put a piton in wrong for rock
climbing.
MR. FORD responded that is one of the key issues. Opinions can
differ on what would be an inherent risk. The court or another
reasonable person could agree with him or not.
This kind of legislation is hard to craft because the
rules we have occur in real fact situations where real
people exist.... but, to come up with a rule that
applies to all situations, you run into what I call
the generic language...
SENATOR THERRIAULT asked if language on page 2, line 29, saying
that a person assumes inherent risk in a sport or recreation
activity whether those risks are known or unknown is in there.
MR. FORD replied that he thought they were trying to say they
are not going to depend on the knowledge of the person who
participates. This was not his language and he was a little
confused about its meaning. He felt that an inherent risk would
have to be known by the participant.
SENATOR THERRIAULT asked where the language came from.
MR. FORD said it came from a woman in Anchorage and she came up
with a rewrite of the original bill.
MS. LINDA ANDERSON, Alaska Travel Industry Association, said
this language came from an attorney in Anchorage who has tried a
number of these cases.
CHAIR SEEKINS said there might some inherent risks someone might
not know about and they were trying to get to what is common
sense, although that differs from one person to another.
SENATOR THERRIAULT asked Mr. Ford what would be lost if that
sentence fragment were deleted.
MR. FORD replied he didn't think it would greatly affect the
bill. It raises the issue of whether those risks are unknown or
known, but the question is to whom. He assumed it meant the
person who participates, but he felt if it was unknown to the
person, how could it be inherent.
SENATOR THERRIAULT moved on page 2, line 29, to delete ",
whether risks are known or unknown,". There was no objection and
it was so ordered.
SENATOR OGAN motioned to pass CSSB 175(JUD), version \S, from
committee with attached zero fiscal note and asked for unanimous
consent. There was no objection and it was so ordered.
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