Legislature(1997 - 1998)
04/23/1997 01:44 PM Senate 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 30 CIVIL LIABILITY FOR SKATEBOARDING
REPRESENTATIVE ELDON MULDER , sponsor of HB 30, gave the following
overview. The measure was introduced at the request of the
Municipality of Anchorage (MOA), City and Borough of Juneau (CBJ)
and numerous other communities throughout the State: Fairbanks,
Sitka, Valdez, and Petersburg. These communities have indicated
interest in creating skating and cycling parks so that skaters and
cyclers will have a designated place to ride, rather than using
pedestrian areas. Municipalities are willing to develop areas
suitable for these activities if they can be insulated from
liability for claims arising from hazards inherent to those
activities. The intent of HB 30 is to encourage municipalities to
proceed with development of areas for outdoor recreation without
unnecessarily increasing their liability. HB 30 only applies to
municipal skating and cycling parks and is patterned after
legislation that passed three years ago which pertained to ski
areas. The protection from liability relates to inherent dangers
and risks associated with skating and cycling. Municipalities will
be required to post signs warning participants of the risks
involved and disclaiming liability.
Number 084
SENATOR ELLIS asked if there might be any possible unintended
consequences on liability if those activities occur outside of
designated areas.
REPRESENTATIVE MULDER did not believe so, but deferred to
representatives from the Alaska Municipal League.
CHAIRMAN TAYLOR stated HB 30 is based on an assumption of an
inherent risk of using the facility. He asked at what age the
discretion to make that assumption should occur.
REPRESENTATIVE MULDER answered the assumption goes to the fact that
there is an inherent risk in skateboarding, in-line skating, or
using a bicycle on these premises, and is within those activities
rather than the facility itself. Accidents are currently occurring
in public areas but there is no plethora or lawsuits because there
is no one to sue. The facilities will have to be challenging to
encourage youth to use these facilities, which poses a risk to
municipalities.
CHAIRMAN TAYLOR clarified he was asking at what age a child should
be considered capable of understanding the inherent risk involved:
age 5, 7, or at the age one can read a warning sign.
TIM SULLIVAN , staff to Representative Mulder, explained the bill is
not age-specific but does contain a provision related to
responsibility. He read subsection (B) on page 4, line 12:
(B) if the person does not have sufficient physical dexterity
or ability and knowledge to negotiate or use the facility
safely; in the case of a minor who uses a municipal skating or
cycling facility, the minor's parent or legal guardian is
responsible for determining whether the minor satisfies the
requirements of this paragraph;
Mr. Sullivan said he believes that language is consistent with the
direction the Legislature has taken over the past few years to make
parents more responsible for their children's activities.
Number 160
CHAIRMAN TAYLOR asked who would be responsible in a situation in
which a 14 year old, who is responsible for taking care of his 4
year old brother during the summer while the parents are working,
takes the 4 year old to the skateboard park where he is injured.
REPRESENTATIVE MULDER thought it would depend on how the injury
occurred. It could have occurred as the result of negligent
construction or while the child was an onlooker. He believed the
real question in that case is what the two children would be doing
if the facility was not there. If the assumption is that they
would both be skateboarding, they would be doing so on the street.
CHAIRMAN TAYLOR said that issue is related to whether or not the
Legislature needs to regulate laws that are currently on the books
that municipalities choose not to enforce. He asked at what point
does immunity from liability attach to the four year old. He
repeated that HB 30 is based on the assumption that skateboard and
cycling are inherently riskier than other activities.
REPRESENTATIVE MULDER answered the number of these types of
injuries that occur in the public today cannot be accounted for
because no parks have been built so there has been no "deep
pocket," but once a municipality officially sanctions a facility,
a "deep pocket" will be exposed. He added the only municipally-
sanctioned facility in Alaska that he is aware of is a very small
facility in Kodiak and recently a child was injured at the facility
and is suing the city.
Number 216
CHAIRMAN TAYLOR noted he has seen skateboard facilities in
California, Washington, Idaho, and Florida. He asked
Representative Mulder to cite another State that has passed an
immunity bill similar to HB 30.
REPRESENTATIVE MULDER deferred to representatives from the Alaska
Municipal League.
CHAIRMAN TAYLOR asked whether anyone requested information from
Legal Research about other states. REPRESENTATIVE MULDER replied
he did not.
CHAIRMAN TAYLOR said, if HB 30 is valid and municipalities need
immunity in order to have recreational equipment for children, the
Legislature needs to know how many children are injured when
playing football and diving in swimming pools, or when
participating in other activities on municipal lands. He
emphasized if there are cases where communities are suffering
serious legal challenges because of liability for recreational
activities, the Legislature should provide immunity for all of
those activities. He concluded there may not be a problem, since
communities do allow for recreational activities and cover the
risk. He expressed concern that HB 30 will allow municipalities to
turn their backs on injured children and asked that Representative
Mulder provide legal research on this issue.
Number 256
KEVIN RITCHIE , Executive Director of the Alaska Municipal League
(AML), and KEVIN SMITH , with AML's Joint Insurance Program, took
the witness stand. Mr. Ritchie explained that the Joint Insurance
Program is an insurance pool governed separately from the AML. He
stated HB 30 is a priority bill for the AML because it will allow
municipalities to provide an area for an activity which is
inherently dangerous and is occurring in places that municipalities
have outlawed, or are in the process of outlawing, because it is
dangerous to participants and others. Skateboarding has become a
tourism/business issue because it often occurs in downtown areas.
AML would like to channel these children into a supervised area.
Because the activities are currently occurring in illegal areas,
there is no liability issue when injuries occur but if parks are
created by municipalities, they will be assuming liability. HB 30
would provide the same type of immunity that is currently provided
for municipal ski areas.
CHAIRMAN TAYLOR referred to the repeated use of the term
"inherently dangerous" and asked Mr. Ritchie what the risks are.
MR. RITCHIE replied that Representative Mulder referred to a broken
arm. He noted an additional advantage to a designated park is that
protective gear can be required and limit the number and types of
injuries.
CHAIRMAN TAYLOR asked what specific injuries are known to exist
from this activity in skateboard parks.
MR. SMITH responded that skateboarding is done with great speed and
requires balance. The injuries are not limited to, but include,
broken bones, backs, necks, and brain stem and head injuries.
CHAIRMAN TAYLOR asked if the municipalities insured under the Joint
Insurance Program have risk management programs and are advised on
how to avoid certain risks. MR. SMITH answered that is correct.
CHAIRMAN TAYLOR asked how playground equipment is dealt with. MR.
SMITH answered it is inspected for entrapment hazards, for exposed
rivets, for adequate ground cover, etc.
CHAIRMAN TAYLOR asked why that is done. MR. SMITH said it is done
to make the playground safer. CHAIRMAN TAYLOR said it is also done
to prevent lawsuits and keep insurance rates from increasing. He
asked why there are fewer pieces of playground equipment on
playgrounds today. MR. SMITH replied that a lot of lawsuits over
the safety of playground equipment have been filed against
municipalities and safer equipment has been designed.
CHAIRMAN TAYLOR asked if Mr. Smith meant safer than something that
is inherently dangerous. MR. SMITH said yes, swinging is not as
inherently dangerous as skateboarding. CHAIRMAN TAYLOR asked if
some of the equipment that has been taken out of playgrounds is as
inherently dangerous as skateboarding. MR. SMITH replied some of
them probably were.
CHAIRMAN TAYLOR asked why HB 30 shouldn't be expanded to include
all of that equipment if we want to encourage activities that are
inherently risky. MR. SMITH said he was in favor of broadening the
immunity to any outdoor recreational activity. He noted in his
research, he found that municipalities have been sued in a number
of states for skateboarding activities. A number of states have a
broader statute and gives any property owner some limited liability
from injuries resulting from outdoor recreational activities.
Number 391
MR. RITCHIE pointed out the AML targeted skateboarding, cycling,
and in-line skating because they are becoming national sports and
have extensive safety guidelines and equipment. HB 30 does not
stop the evolution of safety in the sport, it will help it. If a
municipality designs a skateboard park that does not meet
appropriate safety standards, the municipality will be liable if an
injury results. Municipalities would be liable for negligence.
The type of inherent injury that hopefully will never happen can be
protected against, but not fully. Although the Joint Insurance
Program is a large program, one serious injury would have a
significant impact.
CHAIRMAN TAYLOR stated what AML wants is to be immune from
negligence. REPRESENTATIVE MULDER explained the bill maintains
that a community is liable if the design of the facility is found
to be faulty. CHAIRMAN TAYLOR noted the only requirement for a
municipality is posting a sign. MR. SMITH said municipalities
would also be responsible for maintaining the facility.
Number 425
MR. RITCHIE did not believe HB 30, or the law that covers ski
areas, creates what attorneys call a "bright line." It attempts to
add some definition and does not create a solid line as to what is
negligent and what is not.
REPRESENTATIVE MULDER pointed out that language on page 3, line 10,
prohibits a municipality from constructing a facility in a
negligent manner and recognizes that there is a safe way to build
and maintain these facilities. Language on page 5, lines 7-8,
specifies that a municipality is not immune from liability for
negligence. He repeated that is not the intention of HB 30.
CHAIRMAN TAYLOR asked how many cities the Joint Insurance Program
insures. MR. SMITH replied there are 113 participants, including
schools and municipalities. CHAIRMAN TAYLOR asked how much they
are charged for recreational coverage for skateboard parks now.
MR. SMITH said it is included in the general liability policy and
began July 1, 1996.
CHAIRMAN TAYLOR asked what claims have been filed. MR. SMITH said
one claim has been filed against Kodiak by the child who broke his
arm while in-line skating. The City of Kodiak had set up a
grinding rail about 18 inches off the ground with ramps on either
side.
CHAIRMAN TAYLOR inquired whether the family filed a claim with the
city, or a lawsuit. MR. SMITH said the family has only filed a
claim at this date.
CHAIRMAN TAYLOR stated only one claim has been filed so far this
year in 100 cities. MR. SMITH agreed but said the AML only began
offering coverage less than one year ago and it takes a while to
build a skateboard park. The injury in Kodiak occurred in the teen
center.
CHAIRMAN TAYLOR asked what the Joint Insurance Program charges the
cities for this increased risk. MR. SMITH said there was no
increase in premiums but the program requires a retrospective audit
at the end of the year and then premium adjustments are made. The
Joint Insurance Program board members are getting pressure from
municipal officials and businesses to deal with the problem of
skateboarding so they decided to provide coverage and to support HB
30.
Number 480
CHAIRMAN TAYLOR asked to what extent this issue was researched
before the board decided to provide coverage. MR. SMITH said he
did a lot of research, but found there is not a great deal of data
available. He found there is a great deal of paranoia within the
insurance industry about skateboarding and it was difficult to
determine a figure based on actuarial information.
CHAIRMAN TAYLOR asked whether Mr. Smith found any cases within the
last 15 years any place in the nation where someone actually sued
a skateboard park. MR. SMITH answered no, probably because there
are not a lot of skateboard parks because of the lack or expense of
liability insurance. In a general liability insurance program,
skateboarding is excluded. The Joint Insurance Program is a
totally different creature from a commercial insurance company. HB
30 was initially introduced to provide coverage to municipalities
where coverage was not available. Coverage is available at $10,000
to $25,000 on a stand alone basis for municipalities that are not
in the Joint Insurance Program pool.
CHAIRMAN TAYLOR asked where Mr. Smith got that information. MR.
SMITH answered he got it from Gallagher, Heffern Insurance in San
Francisco and explained the varying amount depends on deductibles
and is site specific.
Number 518
CHAIRMAN TAYLOR stated he is hearing conflicting information and
asked what the $25,000 premium is based on if no lawsuits have been
filed in the past 15 years. He questioned whether this whole
movement is being driven by the paranoia of the insurance
companies. MR. SMITH replied the premium he was quoted was based
on the market. CHAIRMAN TAYLOR said usually insurance rates are
based upon claims, rather than what the market will bear.
CHAIRMAN TAYLOR repeated his concern that HB 30 grants immunity for
something that no one can find a case on in the past 15 years and
questioned whether municipalities should be immunized from
liability for all recreational activities.
MR. RITCHIE informed the committee that he is an ex-officio member
of the Joint Insurance Program board and acknowledged that the
board did not review this issue scientifically, but rather as
municipal officials who were trying to help children.
Number 541
CHAIRMAN TAYL OR commented he was very impressed with the Joint
Insurance Program's willingness to provide coverage, because unless
someone has the courage to not follow the masses, we will be driven
over a cliff called "inherent immunity for everything." The board
took on that program for 100 cities and did not charge anything.
They decided to wait and find out what the real risks and costs are
and then assess members. If the costs become too high, then the
board will reassess whether it is worth being in the business of
providing coverage for inherently risky activities. He noted the
MOA refuses to build a skateboard park though it is self-insured.
Their best risk assessment showed it would cost a total of $2500
per year yet it is not willing to take on that risk and provide
insurance coverage.
MR. SMITH agreed that the MOA is self-insured, but explained that
the $2500 insurance premium probably includes a $1-$2 million self-
insured retention or deductible. Although AML's Joint Insurance
Program covers 100 cities it does not insure Juneau, Petersburg,
Ketchikan, Kenai, Anchorage, and many of those municipalities have
pavement and youth interested in skateboarding.
CHAIRMAN TAYLOR announced it is not his intention to move HB 30 at
this time. He asked for data on skateboard lawsuits in the United
States and information on how other states have dealt with the
issue of skateboard park liability.
Number 575
SENATOR PEARCE asked whether any injuries have occurred on streets
or sidewalks in Alaska from skateboards. MR. RITCHIE answered that
he was the city manager of Juneau when the downtown skateboard
ordinance was passed. That ordinance was passed because downtown
businesses were seriously concerned about near-misses. Many
elderly tourists were scared by the skateboard activity on
sidewalks. He offered to research actual injuries in Alaska and
nationwide.
TAPE 97-29, SIDE B
SENATOR PEARCE commented she had a child on a skateboard in the
street almost hit her recently. She agreed skateboarders need a
designated place to go. MR. RITCHIE said that is the crux of the
matter: skateboarders are putting themselves and others in danger.
Although CBJ has an ordinance against skateboarding downtown, it
does not have enough police to enforce the ordinance. In addition,
no one wants to turn an emerging sport into a criminal activity. He
repeated that any approved facility that is built will have to be
challenging enough to entice skateboarders off the streets.
MR. SMITH remarked he has been researching legal cases on
skateboard parks and although those cases are difficult to find, he
has found cases outside of Alaska involving serious injuries that
resulted from accidents between skateboarders and cyclists.
Number 565
CHAIRMAN TAYLOR emphasized that no one can back up this paranoid-
driven fear with numbers or cases and we cannot build facilities
because insurance companies have us scared to death. He noted
Senator Kelly witnessed a skateboarder skate head-on into a car in
front of him while driving up the hill to the Capitol building
several days ago. Fortunately the skateboarder bounced off and was
fine. Although this problem needs closure, the solution should not
be based on paranoia.
MR. SMITH said skateboarding is an activity that is largely driven
by one's own abilities and is very different from using playground
equipment.
CHAIRMAN TAYLOR began taking teleconference testimony.
CONNIE JONES , Director of Cultural and Recreational Services for
the MOA, testified. She noted MOA's attorney has done an extensive
West Law search on skateboarding cases of which she has 37. Most
of the cases do not concern skateboard parks and the history is
relatively short so it is unfair to compare it to other kinds of
recreational activities. Most of the cases involve street
skateboarding accidents. There is very strong support for a
skateboard park in Anchorage from the Youth Commission, Assembly,
the Chamber of Commerce, and the Downtown Anchorage Association.
Although the MOA is self-insured, it has a $2 million deductible.
MOA is concerned about a draw down on that because of the
possibility of high cost injuries such as neck injuries or
paralysis that can occur when skateboarders do not use protective
gear or act unsafely. MOA believes HB 30 delegates equal
responsibility to the MOA for building and maintaining an adequate
facility and to parents and participants for participating in an
inherently dangerous sport, one that involves being airborne over
concrete.
CHAIRMAN TAYLOR asked if MOA's risk management team calculated a
cost they would have to reserve each year to cover skateboarding
injuries. MS. JONES thought the extra cost would be about $60,000
for a separate policy, and no one would accept is as part of MOA's
self insurance.
CHAIRMAN TAYLOR noted the "no one" she is referring to is the
Anchorage Assembly and the risk management team is assuming the MOA
will be liable for so many injuries that the policy would cost
$60,000 per year. He asked her to request the MOA to put that in
writing to him.
MS. JONES explained the problem is that the data is incomplete, and
the risk manager is basing that figure on cases that have occurred
in street accidents. He is also speculating that when the MOA
invites people into a skateboard park made of hard surface cement,
injuries will occur when skateboarders attempt activities beyond
their skill level. She repeated the MOA will accept full
responsibility for all maintenance and construction.
Number 492
CHAIRMAN TAYLOR asked if the MOA currently insures other parks and
greenbelt areas where people play soccer, touch football and rugby,
and hockey rinks. MS. JONES replied that those activities are
covered under MOA's self-insurance and althouth those sports are
dangerous, the inherent danger of skateboarding is higher because
of the height at which these injuries could occur and the cement
floor.
CHAIRMAN TAYLOR again requested the MOA risk manager to send him an
estimate of the number of injuries that may occur and the number
for which the MOA may be liable. He asked why one would base the
injury level in skateboard parks on the number of skateboard
injuries on streets when the parks are properly built and
supervised. MS. JONES speculated that might be done because there
is not enough history. CHAIRMAN TAYLOR asked Ms. Jones to send him
copies of the cases involving skateboard parks.
Number 466
COLIN WHIDDON , a 15 year old from Kodiak, testified in support of
HB 30. The few areas in Kodiak that were available to
skateboarders are slowly becoming illegal, and skateboarders must
fend for themselves and are getting a bad reputation. Kodiak
skateboarders want a legal place to go to. By passing HB 30, the
city will be able to support skateboarders' efforts to get a skate
park.
CHAIRMAN TAYLOR asked Mr. Whiddon if he was aware of the
skateboarding accident that occurred in Kodiak. MR. WHIDDON said
he was not.
MR. IAN FULP , Kodiak Parks and Recreation Director, discussed two
aspects of skateboarding that make it inherently dangerous. The
first is that skateboarders do acrobatic stunts while airborne over
a hard surface. The second is that in order to improve,
skateboarders must expose themselves to greater danger to learn new
tricks. He described the accident that occurred in Kodiak. A
grinding bar is bolted about 18 inches off the ground with mats on
either side. The children would in-line skate on it then jump off.
The city felt it was fairly safe because the skaters could not go
very fast and because there were mats on either side. One boy fell
forward onto the bar, put his forearm out to block his fall and
broke both bones. Mr. Fulp expressed concern that because the
grinding bar has a history of one accident, if another occurs, the
city could be considered negligent for not removing it.
CHAIRMAN TAYLOR asked Mr. Fulp at what age he thought children
should be held accountable for their injuries. MR. FULP said he
has never seen a four-year old on a skateboard and that the
possibility is not very realistic. He thought that scenario could
be compared to a four year old walking onto a baseball field during
a game and that people would move that child off the field.
CHAIRMAN TAYLOR stated he is concerned about the age level a child
should be considered to have sufficient discretion to be
accountable if an injury occurs. MR. FULP answered HB 30 should
apply to any child on a skateboard.
CHAIRMAN TAYLOR asked Mr. Fulp if he thought there should be a
different standard for other recreational activities provided in
communities. MR. FULP said very much so because the other
activities are not inherently dangerous.
Number 325
RICHARD BITTICK , the assistant director of the City of Seward Parks
and Recreation Department, testified in support of HB 30. The City
of Seward is trying to provide a safer environment for
skateboarding and cycling which are currently occurring on city
streets. He believes skateboarders take on a greater inherent risk
when skateboarding on the streets rather than in a park.
CHAIRMAN TAYLOR asked Mr. Bittick if he is aware that Seward has
full coverage under the AML's Joint Insurance Program to build a
skateboard park now. MR. BITTICK said Seward is in the process of
building a park. CHAIRMAN TAYLOR encouraged completion of that
project because after it is in existence for several years, the
risk factor will become more apparent. He asked if the City of
Seward wants HB 30 passed so that none of the skateboarders can be
compensated for injuries that might occur at the park.
MR. BITTICK explained the city has set aside an area for
skateboarders, but is concerned about liability when skateboarders
do not follow the rules and get injured. CHAIRMAN TAYLOR repeated
he is not aware of any skateboarder who has actually sued a
municipality and that the City of Seward is fully insured today.
He urged the city to build a park.
MR. BITTICK responded the City of Seward is trying to provide a
safe facility without putting its neck on the chopping block at the
same time. Skateboarding and cycling differs in that it is being
done in the middle of the street. Other sports are not.
NANCY ROBB , the Parks and Recreation Director in Valdez, informed
the committee that Washington State has been working on similar
legislation and offered to provide additional information on that
legislation to any interested parties. CHAIRMAN TAYLOR asked her
to also provide information on the other highest risk recreational
activities for children in Valdez. MS. ROBB answered it used to be
skiing but the City of Valdez no longer operates the ski area.
Number 208
LAURIE WHIDDON , a mother of three skateboarders, testified in
support of HB 30 because there are a large number of children in
Kodiak who are not interested in sports other than skateboarding.
Skateboarders need a safe and legal place to practice their sport;
the downtown area is off-limits, as are most paved parking lots.
The only locations available at this time are the school parking
lot and tennis courts. The City has been discouraged from
providing a safe place to skate because of the liability issue. HB
30 would remove a major hurdle in its efforts to provide another
recreational outlet.
CHAIRMAN TAYLOR asked Ms. Whiddon if she was aware that Kodiak has
had full insurance coverage for a skateboard park through the Joint
Insurance Program since July 1, 1996.
CLAUDIA ANDERSON , the mother of a skateboarder, testified that her
son's interest in skateboarding has caused him to have many
unnecessary confrontations with authorities. The city has not
built a park, and suggested that parents build a private facility
but Kodiak's population base is too small. She urged the committee
to support HB 30 so the Kodiak City Council will build a park.
Number 130
JOHN PALMER , Kodiak Chief of Police, testified that the ordinance
to prohibit skateboarding in downtown Kodiak was the result of run-
in incidences with pedestrian traffic and building damage. The
police department enforces that ordinance which puts a drain on its
resources and promotes an adversarial relationship with the
teenagers which is counterproductive to the police department's
goal. Although Kodiak may already be insured for a skate park,
there is no assurance that the Joint Insurance Program may decide
to stop the coverage in the future, or raise the premium
substantially.
CHAIRMAN TAYLOR reiterated his comments about the need to build
parks now and determine what the liability is in five years.
MEL PERKINS , a local Juneau business owner, expressed concern about
the lack of control and responsibility that will occur if HB 30
passes. The CBJ skateboard park will be located next to his
businesses. He stated CBJ staff initially told him the skateboard
park would be supervised but he heard during the CBJ Assembly
meeting that if HB 30 passes, no supervision will be necessary if
warning signs are posted. If there is no supervision of the
premises, it is possible that nefarious activities will occur. In
addition, if no restrooms are available on the premises, the youth
will use the facilities in local businesses. He stressed the need
for the CBJ to maintain and take responsibility for for the
skateboard park if it builds it.
TAPE 97-30, SIDE A
CHAIRMAN TAYLOR commented his primary concern is that HB 30
contains no requirement for supervision.
JAY SONNER informed committee members he has been one of the local
students working on the CBJ skateboard park and is available to
answer questions.
CHAIRMAN TAYLOR asked if the construction of the Juneau skateboard
park is dependent on the passage of HB 30. MR. SONNER said
passage of HB 30 will greatly improve the chance of getting a
skateboard park, otherwise it will be very hard to get insurance
coverage.
CHAIRMAN TAYLOR encouraged Mr. Sonner to get information from the
CBJ on the cost of insurance and use it to inform the residents of
Juneau.
MR. SONNER said that currently there are skate gyms and get
togethers once a month in the summer time and about 200 youth
participate.
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