Legislature(2003 - 2004)
04/30/2003 03:10 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 245 - SUITS & CLAIMS: MILITARY/FIRE/DEFENSE Number 2253 CHAIR McGUIRE announced that the next order of business would be HOUSE BILL NO. 245, "An Act relating to certain suits and claims by members of the military services or regarding acts or omissions of the organized militia; relating to liability arising out of certain search and rescue, civil defense, homeland security, and fire management and firefighting activities; and providing for an effective date." [Before the committee was CSHB 245(MLV).] Number 2281 GAIL VOIGTLANDER, Assistant Attorney General, Special Litigation Section, Civil Division (Anchorage), Department of Law (DOL), after noting that she'd given a brief overview of HB 245 at its last hearing, suggested that the immunity granted in the bill regarding search and rescue operations would be consistent with four different Alaska Supreme Court cases that immunize police investigations. In the [Hawks v. State, Department of Public Safety, Waskey v. Municipality of Anchorage, Wongittilin v. State, and Dore v. City of Fairbanks] cases, it has been held that the courts would not recognize a tort for negligent investigation; she opined that search and rescue operations are just another form of investigation. Number 2346 DEAN BROWN, Deputy Director, Central Office, Division of Forestry, Department of Natural Resources, said that a major responsibility of the division is "wildland firefighting." She explained that "wildland-urban interface concerns" are increasing as more and more of the population, as it grows, moves into wooded areas. Currently, 86 percent of Alaskan fires annually are human-caused, adding that in the spring season, virtually 100 percent are human-caused, primarily along "the road mapped on these populated areas." The Division of Forestry fights between 500-700 fires annually, with May 1 being the beginning of fire season, although this year it began two weeks early. TAPE 03-47, SIDE B Number 2380 MS. BROWN said that to date there have been 89 fires, which, she opined, is an indication of both the increasing problem and the fact that it was a dry year. She remarked that HB 245 will have a significant impact on the division, particularly for individual firefighters. The state's firefighters are mostly seasonal workers whose positions are funded three and a half to five months a year. The firefighter's job is fighting fires and each fire has the potential of putting his/her life on the line; therefore, for safety reasons, a firefighter's mind should be 100 percent on the job. For this reason HB 245 is critical, so that firefighters don't end up being brought into court to defend "Monday-morning quarterback" analysis by attorneys for any of the 500-700 fires fought annually. MS. BROWN noted that the 1996 "Miller's Reach" fire is presently in litigation, that it was the first major "wildland-urban inter-fighted fire," and that it burned approximately 442 structures. She mentioned that [that litigation] is not affected by HB 245. Offering the following as an example of the impact immunity could have on firefighters, she said: During the big windstorm that we had this year in the Mat-Su and Anchorage area, we had individual firefighters out working until 5:30 a.m. ... and they had to be in court at 8:00 a.m. As I said before, when managing the program and in looking at the responsibility, the real job here is fighting those fires. MS. BROWN posited that the immunity granted under HB 245 is not only for the state; it is also for individual "state firefighters." She said that currently, under federal law, federal firefighters are immune from litigation, and that this has been reaffirmed by the [9th Circuit Court of Appeals]; on the federal level, there has been longstanding precedent upholding this [immunity]. In addition, local and municipal firefighters are currently immune. As a result, in situations where local, state, and federal firefighters are working together on a fire, they have different liability exposure. She offered that HB 245 is critical to the division because it will fill the gap that currently exists between local and federal liability-and-immunity issues and state liability-and-immunity issues. House Bill 245 is critical for the future of Alaska's firefighters, she said, and urged passage of the bill. Number 2224 REPRESENTATIVE SAMUELS moved to adopt CSHB 245(MLV) as the working document. There being no objection, it was so ordered. Number 2214 WILLIAM TANDESKE, Commissioner, Department of Public Safety (DPS), offered comments regarding immunity for search and rescue operations. He said: My concern is that - given that my department is responsible for search and rescue in Alaska, that we do "search and rescues" based on the totality of the circumstances, which, as with a lot of investigations we do, are based on imperfect information, cryptic information, third-party reports - things are not always as they seem. And, in a state this size, it makes for a daunting task sometimes. I think it's important, given the conditions that we operate in around the state - so many of our "search and rescues" are in inclement weather, harsh conditions, from the air, on the water, on the rivers - that we don't unnecessarily expose volunteers or our own personnel to unnecessary risk to try to avoid the perceptions of things that might end up in litigation. There's always pressure from loved ones, and certainly understandably so, but I think it's really important that whatever we do is based on good search and rescue principles - good investigative principles. COMMISSIONER TANDESKE said that although it may be impossible, and perhaps inappropriate, to avoid a "Monday-morning quarterback" analysis of a search and rescue situation, it is important to consider the question of whether the state should be exposed to litigation and whether the DOL should be expending its limited resources to sort through such an analysis. He offered, however, that holding departments accountable through questioning to ensure that it is doing the right thing in a given circumstance is appropriate. COMMISSIONER TANDESKE noted that this time of year, for example, in rural Alaska, "overdue snow machines" are a daily event - sometimes many in the same day. Therefore, the question arises, "Do we want to always err on the side of caution - let's launch every resource we have every time somebody's overdue - or do we take [a] measured approach based on good search policy and tactics, and reserve precious resources?" In other words, if out looking for one individual, make sure that it doesn't turn into a search for those conducting the search simply because conditions were not taken into account correctly. "I think it's important, ... in a state where we routinely end up doing the 'needle in a haystack' search routine, that we do it based on the totality of the circumstances, and not based on whether we think litigation will follow," he reiterated. Number 2101 REPRESENTATIVE GARA said that the only case he can recall in which the [Division of the Alaska State] Troopers (AST) has been held liable pertained to an incident on the Denali Highway. He asked if there have been other search and rescue situations over which the AST has been sued and, if so, been held liable. COMMISSIONER TANDESKE said that in addition to the [Kiokun v. State] case pertaining to a search and rescue operation on the Denali Highway, he is aware of one other case from the Nome area in which an individual who'd been drinking subsequently died after going out on a snow machine in bad weather, despite being warned not to. He suggested that the DOL would be better able to provide statistics regarding litigation of such cases. He offered his belief that the DOL expends more resources than it should on such cases. MS. VOIGTLANDER said that in terms of "actually filed litigation," she is aware of two cases: the [Kiokun case] pertaining to the situation on the Denali Highway, which is currently being appealed and which has a potential judgment in excess of $7 million; and a case that was filed and subsequently settled for $175,000. In response to a question, she relayed that in the latter case - in which the plaintiff's name was Okbaok - the issue that was raised during the "Monday-morning quarterback" analysis revolved around "what end of the possible route that the snow machiner would take should the search be initiated at." In other words, should the search have started at the village of Teller, or at the other end of the "loop?" REPRESENTATIVE GARA asked for a summary of the conduct that was at issue in the [Kiokun case]. He indicated that he wants to know what sort of conduct they are being asked to immunize. Number 1911 MS. VOIGTLANDER indicated that there were two lines of information that came to the AST. One line of information came from family members saying that they thought the missing persons were on the Kenai peninsula somewhere, and so search efforts were made in that area; later, there was a representation that the missing persons might be at a different location - not on the Denali Highway - and so search efforts were made at that other location. Meanwhile, there was a thread of information regarding a stranded Subaru on the Denali Highway; that information was left with the AST in Cantwell by some hunters and eventually relayed to the "Fairbanks dispatch in Glennallen." In terms of the jury verdict, the outcome was that the AST were negligent and that their negligence was a cause of the damages; the allocation of fault in the case was 51 percent to the AST and 49 percent to the deceased. She noted that she was unable to comment further in terms of the liability part of the case as opposed to the damages part of the case. In response to a question, she relayed that that jury trial occurred in Bethel. REPRESENTATIVE OGG turned attention to the provisions regarding immunity for homeland security workers. He asked what the duties of such workers would entail, and if those duties were different than for other workers in the "safety or civilian defense field." MS. VOIGTLANDER relayed that homeland security activities would be in line with those of emergency management and civil defense. Such workers would secure public facilities that are at risk of terrorist-type actions, such as airports, harbors, and pipeline. REPRESENTATIVE OGG asked how HB 245 changes a citizen's ability to collect damages if he/she suffers harm physically or sustains damage to property because of homeland security activities. MS. VOIGTLANDER said that under Title 26, which is being amended by HB 245, certain activities related to civil defense are already immunized. House Bill 245 carries over into an expanded role of state government in civil defense, which is the area of homeland security, and would bar claims related to those activities, with the exception of claims that pertain to behavior or conduct that is especially bad. This exception currently exists in Title 26. Therefore, under HB 245, a plaintiff would be allowed to recover damages if he/she can demonstrate, under a clear and convincing standard of evidence, especially bad conduct on the part of homeland security workers. MS. VOIGTLANDER said that there are existing remedies that HB 245 would not affect. Generally speaking, if someone's federally guaranteed constitutional rights are violated by someone "acting under color of law" - that is, a state or federal employee - the plaintiff can file a "Section 1983" claim and have a choice of venue - either federal court or state court. And because the aforementioned is a federal law, HB 245 cannot affect it or the remedy it provides to citizens. Number 1557 REPRESENTATIVE OGG noted that current language removes liability except in cases of wilful misconduct, gross negligence, or bad faith, but the proposed language instead removes liability except when malice or reckless indifference to the interest, rights, or safety of others is shown by clear and convincing evidence. He asked whether this change shifts the burden to the plaintiff. MS. VOIGTLANDER explained that in any civil tort action for damages, the plaintiff always bears the burden of proof. The standard changes, however, from a preponderance of the evidence, which is simply a 51 percent/49 percent formulation, to the next higher standard of clear and convincing evidence. She went on to say: Under Alaska law, it is incredibly difficult to be able to have a court decide issues summarily, without them going to a jury, if there are any factual issues whatsoever. Or, in fact, even if the facts are not contested but someone believes that reasonable jurors could disagree as to the inference that could be drawn from those facts, then it goes to jury trial under State of Alaska summary judgment rules. This is different from summary judgment in federal court. ... With this difficulty of having claims which are arguably immune tested by this higher standard, then it is anticipated that the policy of immunity will be better fulfilled because then the judge will be able to make that threshold decision. ... The policy for immunity is not only immunity from liability, but also immunity from suit, because of the disruption and cost to the government, disrupting people from their jobs, in participating in litigation, as well as, ultimately, having a liability. REPRESENTATIVE OGG said he questions whether it is really necessary to have this "double gate" of not only moving up to behavior done with "malice or reckless indifference", but also making the standard of proof be "clear and convincing". He suggested that doing both may be a step too high. Number 1411 REPRESENTATIVE OGG then turned attention to page 5, Section 9, and noted that it adds "vaccination and other actions to protect public health" to the list of items that would be considered civil defense activities. He asked whether, in order for family members to seek remedy if someone dies because he/she was forced to get vaccinated in the name of civil defense, they would have to prove, by clear and convincing evidence, that the vaccination was given with malice or reckless indifference. MS. VOIGTLANDER said that while it is correct that the family would be barred from a tort claim for damages - absent being able to fit into the exception - if the individual receiving the vaccination as part of his/her job has a bad reaction - up to and including death - the individual or family would be entitled to worker's compensation, which includes death benefits and benefits to the spouse and minor children. She noted that members of the U.S. Coast Guard are covered by a variety of federal benefits including federal worker's compensation benefits. She then mentioned that Congress is in the process of setting up a fund that would be available to people who have a bad reaction to the small pox vaccination. REPRESENTATIVE HOLM asked of Commissioner Tandeske: Currently, does the fear of litigation waste state resources? COMMISSIONER TANDESKE offered that such would be very hard to document via pie chart or bar graph. He mentioned, however, that he does believe there are some costs driven by "that," given that searches could be kept going longer than they should be, or that more resources could be devoted to a particular situation than is supported by the information available. He noted that in a recent search effort, there was a lot of pressure from the family to put more resources into that effort and "get up there" even though hazardous weather conditions were in effect and avalanches were occurring. He stated that although there is clearly a certain amount of risk associated with search and rescue operations, personnel should not be put in harm's way unnecessarily. Putting personnel in harm's way unnecessarily, or expending more resources than are warranted by the available information - simply because a "Monday-morning quarterback" analysis might engender litigation - does happen, although it is not something that can be easily documented. REPRESENTATIVE HOLM suggested that someone who chooses to engage in potentially risky activities should not expect the state to "drop everything it's doing to go rescue somebody." Number 1092 REPRESENTATIVE GARA asked whether the AST has changed its search and rescue practices or policies in response to the [Kiokun case]. COMMISSIONER TANDESKE said no. REPRESENTATIVE GARA then asked whether the threat of a "Monday- morning quarterback" analysis is really causing the AST to act in a different fashion. COMMISSIONER TANDESKE said that if any such differences in action are occurring, they consist of those previously stated. With regard to AST's search and rescue policies, however, no changes have been made. He offered his belief that a certain amount of "Monday-morning quarterback" analysis is healthy, but pointed out that it is up to the legislature to decide whether the state should be subject to litigation if things don't turn out well in situations such as occurred in the Nome area when an intoxicated individual went out on a snow machine in bad weather. REPRESENTATIVE GARA asked whether expending more resources or searching longer than is warranted by the information available is a result of the existing tort system. COMMISSIONER TANDESKE acknowledged that the notoriety of litigation drives "some of that but not all of that." He noted that the AST is certainly sensitive to the public relations aspects and to the needs of family and loved ones of missing individuals. So, for those reasons as well, he added, it is not unusual for search and rescue personnel to "go that extra mile." In conclusion, he said, it is very important that decisions which ultimately risk other people's lives are made only for the reasons of good public policy and good investigative and decision-making purposes, and nothing else. REPRESENTATIVE GARA asked Ms. Voigtlander to fax him the factual discussions from the appeal briefs in the [Kiokun case]. MS. VOIGTLANDER agreed to do so. CHAIR McGUIRE announced that HB 245 would be held over.
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