Legislature(2005 - 2006)CAPITOL 120
03/31/2006 01:00 PM House JUDICIARY
| Audio | Topic |
|---|---|
| Start | |
| HJR32 | |
| HB415 | |
| HB413 | |
| HB347 | |
| Adjourn |
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
| + | HB 413 | TELECONFERENCED | |
| + | HB 347 | TELECONFERENCED | |
| + | TELECONFERENCED | ||
| += | HB 415 | TELECONFERENCED | |
| = | HJR 32 | ||
HB 415 - LIABILITY FOR RECREATIONAL LAND USE 2:12:36 PM REPRESENTATIVE ANDERSON announced that the next order of business would be HOUSE BILL NO. 415, "An Act relating to landowners' immunity for allowing use of land for a recreational activity; and providing for an effective date." 2:13:05 PM REPRESENTATIVE PAUL SEATON, Alaska State Legislature, sponsor, explained that HB 415 seeks to encourage private landowners to allow free recreational access to their lands by giving them tort immunity from liability except in cases of gross negligence. Under the bill, landowners who do not charge for access to their lands would no longer have a duty to keep the land safe for use, to warn recreational users of unsafe conditions, or to curtail the use of their land for recreational purposes. He offered his belief that current statutes do not specifically pertain to land that is being used free of charge. REPRESENTATIVE SEATON referred to page 2, line 14, and explained that subsection (d) prohibits claims for adverse possession, prescriptive easement, or similar claims arising from the recreational use of land without charge; this provision should address concerns by landowners that giving someone free access to their lands for recreational use will result in a prescriptive easement. He offered his understanding that members' packets include various letters of support for HB 415, including letters from the Alaska State Chamber of Commerce (ASCC), the Kenai Peninsula Borough, the City of Homer, and many others who believe that [passage of] HB 415 would be advantageous for promoting recreation in their areas. REPRESENTATIVE GARA said he would like to provide for a narrower title by adding in the things that the bill provides for such as the preclusion of adverse possession or prescriptive easement claims by private persons, and that there is no liability if the land is being used without charge unless the conduct [by the landowner] is grossly negligent, reckless, or intentional. REPRESENTATIVE SEATON said he would not oppose such a change to the title should the committee desire it. 2:19:08 PM LINDSAY WINKLER, Programs Management, Homer Soil & Water Conservation District (SWCD), relayed that members' packets include a letter of support from the Homer SWCD, and that she will submit her written testimony to the committee. Of particular interest is that HB 415 specifically states the recreational use provided for in the bill may not form the basis of prescriptive easement claim. She offered her understanding that a recent Washington Post article indicates that in 2005, more money was spent on tort liability than on research and development efforts. With the increasing need for more energy resources and with Alaska showing leadership in this direction, HB 415 is one step the state can take towards changing this statistic around; ultimately, HB 415 provides landowners wanting to provide access clear and comfortable guidelines for their role in such an allowance and what their liability is. The Homer SWCD is in strong support of HB 415 because property owners are not comfortable with the protections offered by current statutes. 2:21:03 PM ANNE MARIE HOLEN, Special Projects Coordinator, Administration Department, City of Homer, relayed that members should have a copy of City of Homer Resolution 6-30 expressing strong support of HB 415. Outdoor recreation is an important part of Homer's identity and local economy. Most Homer area residents support trail development, but some landowners who would be interested in establishing public trails through their property are understandably nervous about possible liability. House Bill 415 addresses these concerns in a straightforward manner, just as many other states have done, and clears up ambiguity in existing state statutes - a worthwhile goal in itself. From the City of Homer's perspective, she relayed, HB 415 provides a good deal for everyone involved. It is the City of Homer's hope that HB 415 will be reported out of committee quickly for a vote on the House floor. She thanked the committee, and thanked the sponsor for introducing the bill. 2:22:30 PM BRUCE HESS relayed that he is a founding member of the Coalition of Homer Open Space and Trails (CoHost), and offered his belief that there is absolutely no controversy on this issue; everyone wants to promote recreational activities in Alaska. House Bill 415 is needed, he remarked, because the ambiguity of current statutes stifles potential recreational activity on private property. Landowners must have clarity before they feel comfortable allowing recreational activity to occur on their land. In conclusion, he asked the committee to move the bill forward, adding that it will benefit all Alaskans. 2:23:24 PM DAVID BRANN, Kachemak Nordic Ski Club, noted that he, too, is a founding member of the Coalition of Homer Open Space and Trails (CoHost), and that he volunteers construction and maintenance services on trails on "the peninsula and in Alaska" and so has had to deal with private property owners regarding trails and recreational use on their land. House Bill 415 will be a major step forward with regard to trail development on private lands. He urged support of what he termed "win-win-win" legislation: it is a win for private landowners because they will be protected; it is a win for recreational users because more landowners will be willing to allow access to their properties for recreational use; and it is win for the state because it won't cost the state anything. He said HB 415 is especially important with regard to opening up lands for recreational use near urban and suburban areas. He thanked the committee for its support and for moving the bill forward. 2:25:21 PM WAYNE STEVENS, President, Alaska State Chamber of Commerce (ASCC), mentioned that the ASCC has long been a supporter of tort reform. He opined that HB 415 will encourage recreational use of private lands by protecting landowners who allow free access to their land. Private landowners often play a pivotal role in accessing Alaska's outdoors through leasing or granting permission to use their private property; this role helps small businesses grow while providing recreational access for Alaska's burgeoning visitor and adventure activities. Without legal protections, such activities may be limited or threatened altogether. He relayed that the ASCC encourages passage of HB 415. REPRESENTATIVE COGHILL noted that although the bill states that it won't apply in situations involving intentional, reckless, or grossly negligent conduct on the part of the landowner, the bill also states that a landowner won't have a duty to warn persons of dangerous conditions. At what point would not warning someone of a dangerous condition be considered intentional, reckless, or grossly negligent conduct? REPRESENTATIVE ANDERSON offered a hypothetical example in which a deteriorated well lies on the path that recreational users traverse. Would a landowner be required to warn recreational users that that well exists? REPRESENTATIVE SEATON indicated that a Legislative Legal and Research Services memorandum dated March 31, 2006, attempts to address that issue, and offered his understanding that "malicious failure to warn" could be construed as "grossly negligent" Therefore, he surmised, in the aforementioned example, it would be up to the courts to decide whether not giving warning of the well would constitute gross negligence. 2:30:18 PM REPRESENTATIVE GARA asked Representative Seaton whether he would be amenable to having the bill say that there is no duty to warn unless the failure to do so is grossly negligent, reckless, or [constitutes] intentional misconduct. REPRESENTATIVE SEATON offered his understanding that that is what the bill provides for already and thus the court would find that "those cases" constitute gross negligence. REPRESENTATIVE GARA said he thinks so as well, but he is wondering whether they should perhaps add to page 1, line 12, the words, "except as provided by subsection (b),". He proffered that this would clarify that except in instances involving gross negligence, there would be no duty to warn. [Later Representative Gara suggested that this change occur to page 1, line 6.] REPRESENTATIVE SEATON offered his belief that the bill already contains that concept, adding that he doesn't have a problem with that suggested change. REPRESENTATIVE ANDERSON labeled that suggestion Conceptual Amendment 1. REPRESENTATIVE COGHILL, in response to a question, said his concern is that he wouldn't want someone he lets go hunting or motorcycle riding on his property to sue him because of an injury sustained due to a failure to pay attention to the terrain. 2:33:27 PM REPRESENTATIVE ANDERSON surmised that if a landowner's children set traps on the property, there should be a duty to warn. REPRESENTATIVE COGHILL said he's seen some mean-spirited people do things on their property to discourage trespassing, and that he would view running wire across a trail, for example, as criminal behavior. He said he'd thought that the immunity provided by the bill addressed his concern until he reviewed subsection (b) further. REPRESENTATIVE SEATON offered his understanding that negligence is the current standard, and that the bill would be changing that standard to intentional, reckless, or gross negligence conduct. He directed members' attention to page 3 of the aforementioned memorandum, and noted that it says in part: On the other hand, it is also plausible that the court would recognize the legislative intent of HB 415 to protect landowners and disregard the doctrine [of attractive nuisance] entirely. I expect that the course chosen by a court would be fact specific depending on the age of the child, the child's ability to perceive the risk, and the nature of the risk. REPRESENTATIVE SEATON said that he thinks that "this issue" is covered in that the bill specifies that intentional, reckless, or grossly negligent conduct is the standard. Adoption of this legislation will remove the problem that most landowners allowing recreational use of their land face. REPRESENTATIVE COGHILL acknowledged the point that the standard is being raised via HB 415. REPRESENTATIVE GARA said he does not see the harm in adding, on page 1, line 6 [earlier in the meeting stated as line 12], after, "(a)" the words, "except as provided by subsection (b),". REPRESENTATIVE COGHILL posited that doing so would draw attention to subsection (b), but acknowledged that even without that change one is automatically drawn to it. REPRESENTATIVE GARA said he thinks that the courts would interpret it the same way, but the problem is that "negligence" is usually a separate doctrine from the doctrines listed on page 1 of the bill; therefore, he is not 100 percent sure that the courts would take the new doctrine of gross negligence and apply it to those items listed on page 1. REPRESENTATIVE COGHILL surmised, then, that the proposed change would be saying that the legislature wants the higher standard of gross negligence to apply in all situations. REPRESENTATIVE GARA concurred, adding that although he thinks the sponsor, members, and Legislative Legal and Research Services are right in how the language will be interpreted, he would be more comfortable if the language he is proposing were added. REPRESENTATIVE SEATON noted that 38 other states have used the same language as is currently in the bill, and that this language is model language. REPRESENTATIVE COGHILL suggested that perhaps the concern could be addressed via a title amendment. REPRESENTATIVE GARA sought clarification that it is everyone's intention that the proposed standard of intentional, reckless, or grossly negligent conduct will also apply to conduct listed in subsection (a). REPRESENTATIVE COGHILL agreed with that summation. 2:41:26 PM REPRESENTATIVE GARA withdrew Conceptual Amendment 1. REPRESENTATIVE GARA made a motion to adopt Amendment 2, to tighten the title such that the concepts discussed are included in the title; Amendment 2 read [original punctuation provided]: After "use of land" add "without charge" After "activity;" add "retaining liability where landowner conduct involves gross negligence, recklessness or intentional misconduct; addressing claims of adverse possession and prescriptive easements, or similar claims by private persons or entities;" 2:42:52 PM REPRESENTATIVE ANDERSON objected for the purpose of discussion. REPRESENTATIVE SEATON asked Representative Gara whether he meant to say, "limiting claims" instead of, "addressing claims". REPRESENTATIVE GARA acknowledged that the drafters usually use the term, "relating to", and so perhaps Amendment 2 ought to use that term as well. REPRESENTATIVE SEATON suggested, then, that Amendment 2 be conceptual. REPRESENTATIVE GARA made a motion to amend Conceptual Amendment 2, to replace, "addressing claims" with, "relating to claims". There being no objection, Conceptual Amendment 2 was amended. REPRESENTATIVE ANDERSON removed his objection and asked whether there were any further objections to Conceptual Amendment 2, as amended. There being none, Conceptual Amendment 2, as amended, was adopted. 2:44:36 PM REPRESENTATIVE GARA moved to report HB 415, as amended, out of committee with individual recommendations [and the accompanying fiscal notes]. There being no objection, CSHB 415(JUD) was reported from the House Judiciary Standing Committee.
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