Legislature(1993 - 1994)
03/29/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 41: CIVIL LIABILITY FOR SKIING ACCIDENTS Number 036 GAYLE HORETSKI, COMMITTEE COUNSEL, HOUSE JUDICIARY COMMITTEE, called the members' attention to a draft committee substitute for HB 41 (CSHB 41 (JUD)), dated March 27, 1993. She mentioned that state agencies and others had submitted recommended amendments to HB 41, which had been incorporated into CSHB 41 (JUD). Number 060 CHAIRMAN BRIAN PORTER noted that CSHB 41 (JUD) included changes which had been suggested by, among others, Mr. Richard Harren, an attorney who had testified during the last hearing on HB 41. MS. HORETSKI stated that the first change appeared on the bottom of page 3 of CSHB 41 (JUD). She indicated that the House Labor and Commerce committee substitute for HB 41 had included language which stated that if a person was injured as a result of an "inherent danger" of skiing, in determining percentages of fault, the trier of fact could not treat the inherent danger as part of the ski area operator's "fault." She said that the language had been deleted, at the suggestion of Mr. Harren, because if an injury was the result of an inherent danger, then the injured party could not maintain a suit on that ground. Number 100 MS. HORETSKI commented that ski area officials had agreed with the proposed deletion. She expressed an opinion that the revised language was clearer. She stated that the next change appeared on page 4, lines 10-11. She reminded the committee that the Eaglecrest Ski Area had informed them of a program involving handicapped skiers. She said that language was added to CSHB 41 (JUD) to clarify that if a skier did not have sufficient physical dexterity, but was assisted by someone who did, then that person would be allowed to ski. MS. HORETSKI indicated that the next changes appeared on page 5. She said that the language in question pertained to plans which ski area operators had to submit. New language required that the plans be reviewed and approved by the Commissioner of the Department of Natural Resources (DNR). Existing law provided that the Commissioner of the Department of Public Safety (DPS) reviewed and approved plans. She noted that both the DPS and the DNR had suggested this particular change. There was an exception to this arrangement if a ski area was located on federal land. MS. HORETSKI said that in that situation, the appropriate federal agency would be responsible for reviewing and approving the plan. She mentioned that new language also appeared on page 5, beginning on line 9. That new language embodied Representative Gail Phillips' proposed amendment, which was meant to exclude two small ski areas in Homer and Anchorage from the requirement to meet national ski patrol standards. Number 164 REPRESENTATIVE JIM NORDLUND asked if the language on page 5, lines 16-18, was also new language. MS. HORETSKI replied in the affirmative. REPRESENTATIVE NORDLUND indicated that he intended to offer amendments later in the hearing. Number 172 MS. HORETSKI stated that the new language appearing on page 5, lines 16-18 was suggested by both the DPS and the DNR. It held that the DNR would not be civilly liable for resulting damages. She called the language "standard disclaimer language." She pointed out a change on page 6, line 11 of CSHB 41 (JUD). She said that a reference to a "safety gate" had been changed to read "stop gate." The next change, she said, appeared on page 9, and pertained to warnings on signs and lift tickets. The new language appearing on lines 26-28 was intended to clarify what kind of natural hazards were considered inherent dangers of skiing. Number 210 CHAIRMAN PORTER mentioned that Mr. Harren had indicated that the warning sign language embodied in the House Labor and Commerce committee substitute for HB 41 was not entirely accurate. The new language recognized that there were qualifications to some inherent risks of skiing. If a hazard was not readily visible under ordinary visibility conditions, from a distance of at least 100 feet, he said, then it was not an inherent risk of skiing, and needed to be marked by a sign. Number 226 MS. HORETSKI called the members' attention to the last change incorporated into CSHB 41(JUD), appearing on page 12. The change clarified the definition of "groomed slope or trail," she said, and was added at the request of ski area operators. She commented that the new definition provided that a groomed slope or trail must have been packed or prepared within the previous twelve hours. Number 253 REPRESENTATIVE NORDLUND expressed concern over the definition of "groomed slope or trail." He mentioned that ski areas often had expert trails which equipment could not gain access to, because of their steepness. REPRESENTATIVE JEANNETTE JAMES commented that if equipment could not access a particular trail, then it would not be considered "groomed." REPRESENTATIVE NORDLUND replied that certain runs were still intended to be used by skiers, although they were not able to be groomed by equipment. Number 276 REPRESENTATIVE GAIL PHILLIPS stated that there would be a difference between the definition of a "groomed slope" and a "run." Number 283 REPRESENTATIVE NORDLUND understood that HB 41 was attempting to set out which ski area runs would be marked. MS. HORETSKI stated that Representative Nordlund was correct in his assertion that the point of defining "groomed slope or trail" was to clarify which trails required signs. She reminded committee members of a concern expressed during the last hearing that ski area operators could not conceivably mark every tree and rock within a ski area. Number 300 REPRESENTATIVE NORDLUND acknowledged that a ski area could not be expected to mark every conceivable line that a skier would follow in getting to the bottom of a mountain. That, he said, was part of the inherent risk that skiers took. However, he stated that there were runs, marked on maps, that might be too steep for grooming equipment to access, but on which hazards should still be marked by signs. Number 309 MS. HORETSKI stated that she had described all of the changes incorporated into CSHB 41(JUD). Number 312 CHAIRMAN PORTER asked Mr. Gary Mendivil to comment on the definition of "groomed slope or trail." Number 326 GARY MENDIVIL, from the EAGLECREST SKI AREA, commented that his ski area did include regularly-used runs which could not be accessed by grooming equipment. Number 346 REPRESENTATIVE JAMES mentioned that she was not a skier, and could not visualize how a ski area would mark a run which was too steep for equipment to groom. Number 350 MR. MENDIVIL replied that skiers could still get down the runs, and could put up signs. He asked if a rock which was not visible and not on a groomed trail would be considered an inherent risk of skiing. Number 359 CHAIRMAN PORTER replied that, in his interpretation, it would be considered an inherent risk of skiing. Number 365 MR. MENDIVIL called the members' attention to the language on page 9, lines 19-29 regarding inherent risks of skiing. Number 369 REPRESENTATIVE NORDLUND noted that the only reference in the bill to "groomed slope or trail" of which he was aware was located on page 8, line 30. He suggested that the committee change the term to "designated run" and then define it as one which was marked on a map as a run. Number 379 MR. MENDIVIL commented that, during the last meeting, the approach that Representative Nordlund had just suggested was what individuals were trying to move away from. Number 389 MITCH GRAVO, representing ALYESKA SKI RESORT, thought the committee was trying to distinguish between "groomed slopes" and "open slopes." He said that, as a skier, there were open slopes at Eaglecrest Ski Area and Alyeska Ski Resort which he would not consider going down. He added that there was an expectation that non-readily-visible hazards should be marked on groomed slopes. However, he said, on open slopes, it was unreasonable to require ski areas to mark every hazard. He supported the proposed definition of "groomed slope or trail." Number 420 REPRESENTATIVE JAMES MOVED to ADOPT CSHB 41 (JUD), dated March 27, 1993. There being no objection, IT WAS ADOPTED. Number 426 REPRESENTATIVE NORDLUND stated that in many ways, he felt that HB 41 was a good bill. He noted that the bill went into amazing detail regarding signs. He commented that other areas of the bill, including pertaining to ski area plans of operation, were not as well "fleshed-out." He said that as a member of the skiing public, he wanted the bill to provide more assurances that plans of operation would be sufficient, especially when the bill absolved the state of any liability for inadequate plan review. REPRESENTATIVE NORDLUND wanted to see HB 41 include a provision that the DNR would adopt regulations setting out more detail about what would be required in a plan of operation. He commented that it was somewhat incongruous to set out warning sign requirements in such great detail, and to provide almost no detail about a ski area's plan of operation. He did not see a need to include the language on page 5, lines 16-18, absolving the DNR's Commissioner from liability resulting from acts or omissions. He understood that the state would probably already be immune from liability, due to the sovereign immunity clause. REPRESENTATIVE NORDLUND stated that the language on lines 16-18 took the heart out of public assurances that ski area plans of operation were adequate. Number 478 REPRESENTATIVE JAMES expected that the DNR would adopt regulations, whether or not the legislature told them to do so. Number 491 CHAIRMAN PORTER replied that the legislature had to authorize an agency to promulgate regulations. Number 496 RAGA ELIM, SPECIAL ASSISTANT TO THE DNR'S COMMISSIONER, commented that ski area plans of operation had always been reviewed by DPS officials. He noted that the state was getting into the ski area business, as it owned the land where the Alyeska Ski Resort was being expanded, and also had holdings in the Hatcher Pass and Girdwood areas. Because the state owned the land where ski areas were located, he said, plan review responsibilities were being transferred from the DPS to the DNR. MR. ELIM said that the DNR intended to set out very specific requirements for ski area operators, in addition to those set forth in HB 41, whether through regulation or through lease terms. He said that it was not clear whether or not the DNR would need to adopt regulations. Number 529 REPRESENTATIVE JAMES did not understand how a ski area operator could file a plan, if there was no attendant instructions for doing so. She asked Mr. Elim if he felt that HB 41 should include a provision requiring the DNR to adopt regulations. Number 536 MR. ELIM stated that if HB 41 did not include a requirement that the DNR adopt regulations, the agency would still have the discretion of adopting regulations on its own. Alternatively, he stated that the DNR could also come up with policies and procedures relating to ski area operation plans. He understood that the DPS had not adopted regulations regarding ski area operation plans, but did have a working relationship with the resorts regarding what was expected of them. Number 557 REPRESENTATIVE NORDLUND MOVED AMENDMENT NO. 1, requiring that the DNR adopt regulations pertaining to ski area operation plans. Number 568 GRETCHEN PENCE, SPECIAL ASSISTANT TO THE DPS' COMMISSIONER, addressed the method by which her department reviewed ski area operation plans. She said that the DPS did not currently have any regulations regarding the plans, nor had it in the past. She mentioned that the DPS had developed a working relationship with the ski areas over the past several years. MS. PENCE commented that present statutes required the DPS to review ski area operation plans for some basic safety provisions, regarding avalanches, search and rescue, and missing persons reports. She noted that the DPS had never gone "on site" to examine a ski area. Number 588 REPRESENTATIVE NORDLUND mentioned the Rizer case, in which a child was lost on a ski slope. He had heard Alyeska criticized for having an inadequate plan for dealing with a missing person. He noted that, without regulations, the public was not assured that a ski area would have adequate plans in place. The regulatory process, however, would provide the public with more assurances, he said. REPRESENTATIVE PHILLIPS perceived that adopting amendment no. 1 would result in CSHB 41 (JUD) needing a fiscal note and therefore a House Finance Committee referral. She added that because ski areas were already required to submit plans of operation, and because a working relationship already existed between the state and the ski areas, the committee could elect to not require the DNR to adopt regulations. Number 619 CHAIRMAN PORTER commented that the amendment would not necessarily require a fiscal note. Number 631 REPRESENTATIVE NORDLUND noted that the committee could send a letter of intent along to the House Finance Committee, stating that if the DNR determined that CSHB 41 (JUD) would result in a fiscal impact, then the House Finance Committee could add a fiscal note at that time. He wished to amend his amendment to refer specifically to the DNR's commissioner. Number 639 MR. ELIM asked if the DNR had authority to promulgate regulations under Title 5. REPRESENTATIVE JAMES asked why the DNR, and not the DPS, would be reviewing ski area plans. Number 650 CHAIRMAN PORTER replied that most of the lands involved would be coming under the DNR's purview. Number 658 REPRESENTATIVE CLIFF DAVIDSON questioned whether the committee was unwilling to improve CSHB 41 (JUD), as it would result in the bill receiving an additional committee of referral. Number 663 CHAIRMAN PORTER stated that the committee was currently addressing the question of whether the DNR had the authority, under Title 5, to promulgate regulations. He noted that HB 41 already had a House Finance Committee referral. REPRESENTATIVE PHILLIPS was simply questioning whether the committee needed to add a fiscal note to CSHB 41 (JUD). Number 666 MR. ELIM stated that he had written a new fiscal note to comport with CSHB 41 (JUD). He was uncertain as to whether regulation writing would result in an additional fiscal impact. Number 674 REPRESENTATIVE JAMES asked Mr. Elim to comment on the relative workloads associated with writing regulations and writing policies and procedures. MR. ELIM responded that the regulatory process entailed much more time and effort than the process of writing policies and procedures. Number 687 REPRESENTATIVE NORDLUND considered replacing "department" with "commissioner of natural resources" as a friendly amendment to his amendment. Number 689 REPRESENTATIVE JAMES asked how long the gap between the effective date of CSHB 41 (JUD) and the finalization of regulations would be. Number 694 CHAIRMAN PORTER mentioned that, until regulations were finalized, he assumed that plans would be reviewed according to procedures now in place. Number 705 MR. GRAVO commented that if the committee was concerned about the fiscal impact of the amendment, they could amend the amendment to say that the DNR shall adopt a policy to implement the section. Number 712 CHAIRMAN PORTER replied that Mr. Gravo's suggestion embodied that which was now in place. He added that the legislature either established policy and asked departments to implement it, or established a general policy and asked departments to adopt specific regulations. He would be uncomfortable doing something halfway between those two approaches, he said. Number 726 REPRESENTATIVE NORDLUND commented that HB 41 was very detailed regarding signs, yet much more general with regard to other provisions. The effect of that, he said, was that sign requirements were getting a great deal of public review, while other aspects of ski area operations were not. He expressed his support for requiring the DNR to adopt regulations. Number 736 CHAIRMAN PORTER did not see the adoption of regulations as a bar to implementing the rest of the statute. Number 744 REPRESENTATIVE DAVIDSON stated that it appeared that HB 41 was attempting to solve problems faced by some of the smaller ski areas. Yet, he said, it seemed that the committee was trying to craft a bill which would apply to all ski areas. There being no objection to the adoption of AMENDMENT NO.1, IT WAS ADOPTED. Number 756 REPRESENTATIVE NORDLUND asked why the immunity language on page 5, lines 6-18 had been added to CSHB 41 (JUD). Number 768 MS. HORETSKI replied that the DPS and the DNR had suggested the addition. Number 770 MS. PENCE stated that the Department of Administration's Division of Insurance had recommended the addition to the DPS. Number 786 REPRESENTATIVE NORDLUND stated that because AMENDMENT NO.1, requiring the DNR to adopt regulations, had been adopted, he would not offer an amendment pertaining to the immunity language. TAPE 93-44, SIDE B Number 000 REPRESENTATIVE DAVIDSON called the members' attention to page 5, line 1. He asked if a ski area was obliged to follow a plan, once prepared and implemented. He said that if that was not the case, then he would OFFER AMENDMENT NO. 2 adding language to that effect. Number 029 CHAIRMAN PORTER commented that, in his opinion, following the plan was inherent in the language of CSHB 41 (JUD). REPRESENTATIVE DAVIDSON WITHDREW AMENDMENT NO. 2. Number 067 REPRESENTATIVE DAVIDSON MOVED AMENDMENT NO. 3, inserting a new provision requiring an operator or its predecessor who had a plan in effect on January 1, 1993, to implement that plan as a minimum standard for skier safety. He said that the intent of his amendment was to prohibit ski areas from implementing lesser standards than those in place on January 1, 1993. Number 081 REPRESENTATIVE PHILLIPS OBJECTED for the purpose of discussing the amendment. CHAIRMAN PORTER asked if it would be appropriate to say that a plan in place on January 1, 1993 would operate as a minimum standard for skier safety until the adoption of regulations by the DNR. Number 092 REPRESENTATIVE PHILLIPS said that the committee could be creating a problem, in that, for 1993, plans would already be in effect. Number 101 REPRESENTATIVE DAVIDSON stated that it was his intent that ski areas not adopt plans which were less stringent than those already in place for 1993. CHAIRMAN PORTER mentioned that the January 1, 1993 date concerned him. He noted that ski area operation plans were probably amended at times, with those amendments resulting in even safer skiing conditions. He asked Representative Davidson if he would object to changing the January 1, 1993 date to the date HB 41 passed. Number 123 REPRESENTATIVE PHILLIPS commented that by the time HB 41 passed the legislature and was signed by the governor, ski season would be over. She OBJECTED to the motion on the basis that the amendment was a moot point. Number 132 REPRESENTATIVE DAVIDSON wanted to ensure that ski areas did not adopt lower safety standards than those which were currently in place. He understood the Chairman's concern regarding the January 1, 1993 date, but said that, in his opinion, the Chairman's suggestion for rectifying the problem would not adequately address the situation. Number 147 CHAIRMAN PORTER noted that there was adequate time to get regulations in place before the next ski season began. He understood what Representative Davidson was trying to accomplish with his amendment, but did not like the amendment's presumption that ski area operators were "laying in wait" to reduce safety standards. Number 171 REPRESENTATIVE DAVIDSON expressed his opinion that when safety costs money, safety generally did not happen. He reminded the committee members that they had heard powerful testimony expressing concerns with HB 41. He wanted to ensure that the committee had tried to address some of the concerns and fears that people had testified about. Number 184 REPRESENTATIVE JAMES noted that some of the testifiers had assumed that adoption of HB 41 would result in less safe skiing conditions than now existed. She said that testimony she had heard seemed to indicate that the perceived problem was ski areas not adhering to plans in place, not that the plans themselves were inadequate. She expressed an opinion that HB 41 would ensure that plans would be at least as stringent as they were today. With the adoption of regulations, she added, plans would likely be even more stringent than they were now. Number 205 CHAIRMAN PORTER commented that the committee had heard testimony expressing an opinion that a particular ski area operator had not correctly implemented a plan, or did not have an appropriate plan. That opinion, he noted, would be tested in court. REPRESENTATIVE DAVIDSON stated that some laws, not excluding HB 41, made it more difficult for aggrieved parties to file lawsuits. A roll call vote on amendment no. 3 was taken. Representatives Nordlund and Davidson voted "YEA." Representatives Kott, Phillips, James, and Porter voted "NAY." And so, AMENDMENT NO. 3 WAS NOT ADOPTED. Number 243 REPRESENTATIVE DAVIDSON MOVED AMENDMENT NO. 4, deleting the word "groomed" on page 8, line 30. REPRESENTATIVE PHILLIPS OBJECTED. Number 250 REPRESENTATIVE DAVIDSON understood that many ski trails were not groomed. His amendment sought to expand the safety responsibilities of ski area operators, he said. He cited concerns of parents whose children went skiing. Number 265 CHAIRMAN PORTER stated that the committee had discussed this issue prior to Representative Davidson's arrival at the meeting. He said that the idea behind requiring signs only on groomed trails was so that an operator was not made to post a sign on every tree and rock within the ski area. Number 282 REPRESENTATIVE PHILLIPS noted that many of the unsigned trails were in areas where children would not be skiing, unless they were expert skiers. Number 288 CHAIRMAN PORTER commented that his children had skied all over the Alyeska ski area. He added that they knew, and he knew, that skiing was inherently risky. Number 303 REPRESENTATIVE NORDLUND said that, as he read Representative Davidson's amendment, it could require a ski area operator to mark every tree on a ski slope. For that reason, he said, he intended to vote against the amendment. Number 310 REPRESENTATIVE DAVIDSON WITHDREW AMENDMENT NO. 4. REPRESENTATIVE JAMES made a MOTION to MOVE CSHB 41 (JUD), dated 3/27/93, as amended, with individual recommendations, and a zero fiscal note. There being no objection, IT WAS SO ORDERED. Number 323 CHAIRMAN PORTER announced that the next item of business before the committee was HB 147.
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