Legislature(2005 - 2006)CAPITOL 120

03/31/2006 01:00 PM JUDICIARY

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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
Heard & Held
Heard & Held
+ Bills Previously Heard/Scheduled TELECONFERENCED
Moved CSHB 415(JUD) Out of Committee
<Bill Hearing Rescheduled from 03/29/06>
Heard & Held
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                                                               
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                                                               
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                                                                    
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                                                               
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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