Legislature(2001 - 2002)
04/04/2001 01:10 PM House JUD
| Audio | Topic |
|---|
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HB 111 - CIVIL LIABILITY AND LIVESTOCK Number 0135 CHAIR ROKEBERG announced that the first order of business would be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 111, "An Act relating to civil liability for injuries or death resulting from livestock activities." Number 0143 REPRESENTATIVE COGHILL, as the sponsor, explained that a 4-H group from Fairbanks had brought the idea of SSHB 111 to him. He noted that the sponsor substitute no longer included hunting in the list of livestock activities on page 4 because that topic would engender a completely different debate. He also explained that SSHB 111 is primarily intended to help youngsters who are participating in activities at fairs, petting zoos, and other places where their livestock is being shown. For the occasional time when an animal might injure someone, either by accident or because that person was doing something foolish, SSHB 111 is intended to limit the liability of those individuals who make "reasonable efforts" to manage their livestock safely. He added that individuals who handle their livestock improperly are still liable for damage or injury. REPRESENTATIVE COGHILL called attention to the definitions in SSHB 111 of "inherent risks", "livestock professional", and "participant", as well as to the list of livestock activities encompassed in SSHB 111. He noted that "the findings and intent section says simply that we want to encourage these types of activities, and we want to make sure that they are done safely, and [that] with reasonable effort, ... [those showing the livestock] would be protected from ... liability. CHAIR ROKEBERG expressed concern about the standards being applied. He questioned whether the basic "wrongful act or omissions" standard in current law was being applied, and he wanted to know what level of negligence would provide for a cause of action for personal injury or death. He called attention to the exclusion for gross, reckless, and intentional misconduct (on page 2, line 26), and said [that language] seemed to imply that conduct less than gross misconduct would be allowable. REPRESENTATIVE COGHILL said he thought that [paragraph] (3) on page 3 spoke to the description of what reasonable efforts would [need to] be maintained in order to safely manage livestock involved in a livestock activity. CHAIR ROKEBERG countered that [paragraph (3)] does not speak to the standards of liability or negligence, and those standards need to be clarified. REPRESENTATIVE COGHILL noted that Mike Ford was present and could speak to those issues. Number 0560 CHAIR ROKEBERG, on another point, asked if a spectator at a rodeo would be excluded from bringing a cause of action. REPRESENTATIVE JAMES, in response to Chair Rokeberg's comments about standards, noted that [paragraphs] (1), (2), and (3) of [subsection] (b), Section 3, apply to the statement that [Section 3] "does not affect a civil action for damages resulting from ...." She said she thought that [paragraph] (1) contains "boilerplate" language, and that [paragraphs] (2) and (3) contain more specific language. She surmised that [Section 3] was more extensive than what Chair Rokeberg was recognizing. CHAIR ROKEBERG said he thought that it was the House Judiciary Standing Committee's duty to make sure that those standards are clear. REPRESENTATIVE JAMES alluded to previous committee discussion about inherent risk in relation to skiing and said she simply wanted to provide any information that might be useful. CHAIR ROKEBERG said this legislation has appeared in various forms for a number of years and he has always supported the concept. He added that he just wanted to make sure it was properly put together. Chair Rokeberg asked Mr. Ford to talk about the standards that are implicit in SSHB 111; whether or not a spectator could have a cause of action; and if so, under what circumstances. Number 0708 MIKE FORD, Attorney, Legislative Legal Counsel, Legislative Legal and Research Services, Legislative Affairs Agency, said the question of standards is raised in [subsection] (b), [paragraph] (1), on page 2. The effect of this provision is to exclude the immunity given here from basically everything but negligence. He went on to say: We're only talking negligence here. We're not talking about an act that's beyond that standard of negligence, that gets into some gross, reckless, or intentional misconduct. So, we've basically carved out those things and said we're not going to deal with those; we're only going to deal with those acts for which you might be liable, and the only acts left are negligent acts. MR. FORD then addressed the issue of the spectator, and said that there was no provision in SSHB 111 that provides the spectator with special treatment. A spectator who is injured has to meet the same criteria; if it's an inherent risk and not "gross, reckless, or intentional" the spectator would not recover [damages]. For example, there would be no recovery if the spectator was watching and there was some kind of negligence on the part of the horse handler. CHAIR ROKEBERG observed that "misconduct" and "negligence" are not synonymous, and asked Mr. Ford why he used the word "misconduct" rather than "negligence" in drafting SSHB 111. MR. FORD explained that "misconduct" is the "term of art" - "intentional misconduct", for example. CHAIR ROKEBERG said "gross misconduct" is used in only one other statute in Alaska, which he himself authored. He said that the "patient's bill of rights" pertained to gross misconduct as it relates to a duty codified in law or regulation, and would then be a matter of misconduct, not negligence, because [the terms] are not synonymous. MR. FORD said he was not sure he understood the point Chair Rokeberg wished to make. He offered his belief that the purpose of this section is similar to the skiing liability Act, which says that if it's an inherent risk, the person doesn't recover [damages]. Number 0944 CHAIR ROKEBERG referred to page 2, line 26, where the word "misconduct" appears, and asked if it would be possible to substitute the word "negligence". MR. FORD said he did not think so, noting that the terms are not synonymous. He clarified that if there was gross negligence, there would be a cause of action. The exceptions to the rule are gross negligence, or reckless, or intentional misconduct. He said "reckless or intentional misconduct" is a term of art used to describe reckless or intentional bad acts. CHAIR ROKEBERG said he thought SSHB 111 needed to be clearer. He said he thought SSHB 111 was implying that negligence per se would not be enough to bring a cause of action. MR. FORD said negligence per se is typically something that the legislature creates, where there is liability for some typical act. In this case, there is no negligence per se because it is not illegal to do these things. Without SSHB 111, someone who was injured would have to go through the normal process, and would have to show that there was negligence or some worse act. He added that SSHB 111 is an effort to "raise the bar" so that simple negligence, as a result of an inherent risk, does not provide for recovery. CHAIR ROKEBERG related his understanding that Mr. Ford was saying that "we" have a gross negligence standard allowing for a cause of action. MR. FORD replied yes. CHAIR ROKEBERG remarked that he would have to be convinced of that. REPRESENTATIVE JAMES posed a situation in which an individual was walking beside or riding an animal that was sometimes spirited and sometimes not. She inquired as to what would happen if the animal bolted and someone nearby was hurt. If what occurred with the animal was outside the limits of control of the individual, then the individual wouldn't be negligent. However, Representative James said that if she were the person who had been kicked or hurt in some way, she would take the position that the individual would be negligent because the individual couldn't manage their animal. She said that would have to go to court and would be "a crap shoot" in regard to the outcome. However, she added, [SSHB 111] says that if the individual managing that animal was not negligent in any way, and if it wasn't gross negligence, it would be exempt because it was an inherent risk of that animal. Therefore, such a case [under SSHB 111] would only proceed to court if gross negligence could be proven, because that has a different level of findings. CHAIR ROKEBERG reiterated his concern that in his opinion, gross negligence is not included in the current drafting of the bill; only gross misconduct is included. He related his belief that there is a distinction between gross negligence and gross misconduct. He specified that he is concerned with the level at which the bar for bringing a cause of action will be established. Number 1261 JACKIE HELLER testified via teleconference, and informed the committee that she is a horse owner who has participated in horse activities all her life. Ms. Heller said that she supports SSHB 111 because horses are unpredictable and are sometimes beyond the control of the person managing the animal. She said she [agreed] with [the concept] of limiting the civil liability for people involved in [livestock] activities. Number 1318 ABIGAIL CROYLE testified via teleconference, and informed the committee that she is a horse owner. She said that many who would like to use horses or livestock have difficulty in moving their animals or allowing others to use [their animals] because without SSHB 111, the animal owner can be sued if someone hurts the animal or the animal hurts someone. Therefore, with the passage of SSHB 111, [livestock owners] would be able to let people use their horses without the fear of a lawsuit. Number 1380 JIM DOUGLAS, Extension Agent, Cooperative Extension Service, University of Alaska Fairbanks (UAF), testified via teleconference, and informed the committee that he is the head of the state 4-H program. This legislation is not just a civics lesson for those in 4-H. Members of 4-H depend on their ability to show livestock. These animals are a rarity for many Alaskans, who, during a show, often want to be very close to the animals. Therefore, it is difficult to convince people to involve their animals in 4-H activities when animal owners discover that they could wind up in the middle of a lawsuit. This legislation will help protect livestock owners from people who place themselves in a dangerous situation, and that is why "we" are in favor of SSHB 111. Passage of SSHB 111 will help build the 4-H program as well as encourage those who like to sponsor and donate animals so that 4-H members can obtain experience. Number 1504 KATE SCHOLLENBERG, President, Trail Blazers 4-H Club, testified via teleconference and specified that she is speaking on behalf of her club, the Peninsula Horseman's Association, and the Ninilchik Fair Association, all of which support [SSHB 111] because it will eliminate most, if not all, of the fear of a lawsuit when people lend their animals to organizations such as 4-H. Therefore, people will have less fear of getting involved, and both the children and the general public will benefit from the education gained [through livestock activities]. She urged legislators to keep an open mind because the youth that SSHB 111 will affect will have on a large impact on Alaska's future. Number 1554 DARCY DAVIES, University of Alaska Fairbanks (UAF); Fairbanks 4- H, testified via teleconference. She informed the committee that she is in the 10th grade at West Valley and that she had met a few of the legislators when she visited Juneau with other 4-H members last week. Ms. Davies thanked everyone for meeting with them and learning about the current UAF for Youth project. Because the motto of 4-H is "Learn by doing," it was thought that promoting SSHB 111 would be a good way to learn about Alaska's government, particularly since SSHB 111 directly impacts 4-H members and the 4-H program. MS. DAVIES informed the committee that currently 44 other states have a limited liability statute for at least horse activities. The Oklahoma statute was used to help draft SSHB 111 because the scope of the Oklahoma statute was not limited to horses only. As part of the project, [4-H members] did presentations in the community regarding the [4-H] project and SSHB 111. At these meetings, no one expressed any concerns with the passage of SSHB 111. Horse owners feel that SSHB 111 would help make people responsible for their own actions. With the passage of SSHB 111, the hope is that the inherent risk of livestock activities will be recognized as the major cause of any accident. In conclusion, Ms. Davies mentioned that [the 4-H] project has been a great learning experience. Number 1662 ROBYN DAVIES, Co-leader, Tanana Whirlwinds 4-H Group, testified via teleconference, and mentioned that she is a member of many of the horse groups around Fairbanks. Ms. Davies explained that during the process [of creating SSHB 111], Jamo Parrish (ph), University of Alaska - Fairbanks, spoke to the children [in the 4-H group] regarding the different levels of negligence. Mr. Parrish explained that Alaska [statute] already covers the first two levels, which means that [no liability is incurred in practical terms] if an accident happens. However, current statute doesn't cover negligence, gross negligence, reckless negligence, or intentional misconduct. Therefore, it was decided that negligence must be addressed in order for SSHB 111 to mean anything. She pointed out that some negligence is an inherent risk with livestock activity. She posed a hypothetical situation in which a kid is walking a steer as he talks with his friends, and therefore the kid is not paying attention to his surroundings, and someone quickly approaches the steer's rear and is then kicked. She acknowledged that some would consider that [the kid] was negligent, yet, in reality, there would be no horse activities without negligence. MS. ROBYN DAVIES pointed out that spectators also were excluded [from bringing a cause of action for negligence] because spectators often place themselves in a position to get hurt. If the word "spectator" were used, she questioned how it would be defined. Therefore, it was decided that if an individual attends a rodeo, for example, that individual assumes some responsibility for accidents that may occur. Number 1781 SANDY SHACKLETT, Publisher, Alaska Horse Journal, testified via teleconference. She described the Alaska Horse Journal as a statewide monthly magazine that is distributed to approximately 5,000 people. She stated that she wanted to share some facts and figures regarding the horse population in Alaska and some of the horse activities that take place. She said that according to the United States Equestrian Marketing Association, Alaska's estimated total horse population in 1996 was 16,935 horses. There was an average of 98 horses in 11 specific shows during the 1999 show season, in the Matanuska-Susitna area alone. And there are shows all over the state. According to a poll done by the Horse Industry Alliance, one out of three people would like to ride a horse. She went on to say, "A bill such as this would help the horse industry as a whole to share their animals, their enthusiasm, and these activities with others." CHAIR ROKEBERG said he would appreciate it if Ms. Shacklett could forward those statistics to the House Judiciary Standing Committee. Number 1843 MAIRIIS KILCHER testified via teleconference and said that she supports SSHB 111 very strongly and that "it's time to have a bill like this in Alaska." She explained that she owns a farm in Homer and enjoys sharing it with visitors. She noted that SSHB 111 would make it "less scary" to own animals, share animals, and have people ride her animals. She mentioned that she also owns cattle and other farm animals. Number 1891 EVERETT BUYARSKI, Juneau 4-H Club, informed the committee that he is a student at Juneau Douglas High School and is representing specifically the large animal and horse club. He reiterated that the 4-H club initially brought this bill forward to Representative Coghill. The Juneau 4-H Club believes that SSHB 111 will help them a lot, especially in Juneau, where there are relatively few animals. He said that many owners worry about sharing their animals with the 4-H Club due to liability problems. The passage of SSHB 111 would reduce that worry and allow owners to more comfortably share their animals [with the 4-H club]. It would also provide more opportunities for people to learn about these animals, which many people want to do. He referred to Mr. Douglas's testimony and indicated that SSHB 111 will assist animal owners as they deal with people who don't understand that these animals are livestock, not pets, and that the animals are not fully tame or domesticated. Passage of SSHB 111 will limit the liability of livestock owners from injuries or damages caused by other people's actions, however good their intentions might be. Number 1981 DEE THORNELL, Doctor of Veterinary Medicine (DVM), 4-H Group Leader, testified via teleconference. She explained that she had been sued by somebody because of an incident that took place at the Tanana Valley Fair in August of 1997. She described the situation wherein she had been leading her horse into the arena while it was being ridden by a member of her 4-H group, and a member of the audience startled her horse - causing it to bolt - by simultaneously shouting and slapping it on the hind quarters in an attempt to get the rider's attention. The audience member, who was wearing open-toed sandals at the time, then made the claim that the horse had injured her foot, and proceeded to bring suit against Ms. Thornell, the fairgrounds, and the 16- year-old rider. Ms. Thornell reported that the case against her had been dismissed but only after she had expended approximately 200 hours of her own time and $15,000 of university funding, which was provided because she was a 4-H group leader. MS. THORNELL, on another point, explained that currently, veterinarians cannot let owners of large animals hold their own animals while veterinary services are being performed because of liability issues. The only recourse veterinarians have is to bring along one of their own employees when treating large animals. In conclusion, she noted that 44 other states already had legislation similar to SSHB 111 in place, and she encouraged the committee to pass SSHB 111 in order to limit liability for livestock activities in Alaska. CHAIR ROKEBERG remarked that it would be helpful if her testimony could be submitted in writing as a formal part of the bill package. He then closed the public hearing on SSHB 111. REPRESENTATIVE COGHILL suggested inserting "negligence" after "gross" on page 2, line 26. CHAIR ROKEBERG noted that that insertion would cover his concerns regarding a lack of clear negligence standards. He added that from his research of the Alaska Statutes, neither was there a "fully articulated misconduct standard." He restated that he had only found one reference to the term "gross misconduct" in statute. Number 2271 REPRESENTATIVE COGHILL made a motion to adopt Amendment 1, as follows: Page 2, line 26: Following "gross" Insert: "negligence" There being no objection, Amendment 1 was adopted. REPRESENTATIVE COGHILL noted that even without [Amendment 1], he thought that "we would have been safe because of number three, as I said, that they would have to show a failure to keep reasonable efforts, and to manage the activity safely." He said he still thought that was a very strong standard. CHAIR ROKEBERG remarked that [Amendment 1] enables an average person reading the law to understand it. He said he objects to a lot of Alaska's statutes because they are not clear to the average person. Number 2317 REPRESENTATIVE JAMES moved to report SSHB 111, as amended, out of committee with individual recommendations and the accompanying zero fiscal notes. There being no objection, CSSSHB 111(JUD) was reported from the House Judiciary Standing Committee.
| Document Name | Date/Time | Subjects |
|---|