Legislature(1993 - 1994)

03/31/1993 01:55 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
 SENATOR TAYLOR returned CS FOR SENATE BILL NO. 44(JUD) (CIVIL                 
 LIABILITY FOR SKIING ACCIDENTS) to committee and noted the                    
 sponsor, SENATOR KELLY, was present.                                          
 SENATOR TAYLOR turned to the teleconference network to invite                 
 ANNIE WILLIAMS, the Legislative Officer for the Municipality                  
 of Anchorage, to testify.                                                     
 Number 059                                                                    
 MS. WILLIAMS said the municipality supported the legislation;                 
 however, she referred to page 5, lines 1 through 11 and asked                 
 to have that section amended to provide for rope tows that                    
 do not transport skiers more than 500 vertical feet.                          
 SENATOR TAYLOR clarified her testimony dealing with the                       
 standards as set by the National Ski Patrol and explained the                 
 committee substitute included the provisions she wanted.                      
 MS. WILLIAMS did not have the draft he identified, so SENATOR                 
 TAYLOR directed a copy of CS FOR SENATE BILL NO. 44(JUD) to                   
 be faxed to her in Anchorage.  He asked her to report back to                 
 committee on the changes that have been made, if she was not                  
 (There was a pause in the proceedings.)                                       
 Number 134                                                                    
 SENATOR LITTLE moved to amend SB 44 to insert on page 4, line                 
 6, after "chapter" , a provision of a ski area plan, or a                   
 regulation adopted by the Department of Labor under AS                        
 05.20.070 is negligent and civilly liable to the extent the                   
 violation causes injury to a person or damage to property.                    
 SENATOR KELLY objected to the amendment, and SENATOR LITTLE                   
 thought the amendment would be helpful because many items in                  
 the ski area plan were critical in nature and should be                       
 MR. BOND said the bill already requires the ski operator to                   
 prepare and implement the plan throughout the season.  He was                 
 concerned it would have the effect of being a statute, and he                 
 predicted area operators would pare down their operation                      
 plans, because whatever they write in their plan would be an                  
 SENATOR TAYLOR clarified it would define at what stage it is                  
 inherent risk or negligence, and MR. BOND said it would make                  
 a different standard of negligence for each skier.  They                      
 discussed the implementation of such a plan.                                  
 SENATOR KELLY explained the object of the plan was to provide                 
 safety for the skier, and he agreed the operators would have                  
 the smallest operational plan possible.                                       
 Number 197                                                                    
 SENATOR LITTLE debated her understanding that terrific plans                  
 existed in place, but critical parts of the plan were not                     
 being implemented, and she defended her amendment which would                 
 require implementation.                                                       
 SENATOR KELLY also thought the plans should be implemented,                   
 and he noted it was on page 5, (a).  He added the ski areas                   
 were presently not specifically required to implement them.                   
 SENATOR TAYLOR checked the teleconference network to contact                  
 DENNIS MESTAS, who had submitted some proposed amendments to                  
 SB 44.                                                                        
 SENATOR TAYLOR reviewed SENATOR LITTLE's amendment for MR.                    
 MESTAS, who agreed with her amendment.                                        
 There being no objection from committee members, SENATOR                      
 LITTLE's amendment was passed.                                                
 Since MR. MESTAS was not physically present, SENATOR TAYLOR                   
 presented each of his amendments for consideration.  He said                  
 he would give MR. MESTAS a chance to explain his amendments,                  
 and MR. BOND a chance for rebuttal.                                           
 Number 260                                                                    
 SENATOR TAYLOR moved to adopt Amendment 13, MESTAS, on page                   
 3, lines 15 through 23.                                                       
 MR. MESTAS explained the purpose of the amendment was to                      
 eliminate superfluous language dealing with the supreme court                 
 There was some discussion with MR. MESTAS as to the scope of                  
 his amendment, and SENATOR TAYLOR determined there were                       
 actually two different amendments, hence, the proposed                        
 amendments became 13A and 13B.                                                
 After clarification, SENATOR TAYLOR moved to adopt Amendment                  
 13A on page 3, lines 14 and 15 to delete [,AS INTERPRETED BY                  
 P.2d 1354, (ALASKA 1991)].                                                    
 MR. BOND explained the relationship of the bill to the supreme                
 court decision in Hiibschman v. City of Valdez with inherent                
 risk injuries.  He quoted JUSTICE EDMOND BURK pondering the                   
 meaning of the decision as being extraordinarily unclear.  MR.                
 BOND said the statement, MR. MESTAS wishes to delete, is                      
 Number 337                                                                    
 SENATOR LITTLE asked MR. MESTAS to respond to the statement                   
 by MR. BOND.  MR. MESTAS gave his interpretation of the                       
 Hiibschman Decision as containing a lot of law, and he                        
 defended his understanding of the decision about inherent                     
 risks and man-made structures.                                                
 SENATOR TAYLOR quizzed both attorneys on the accident that                    
 brought about the Hiibschman case, the indecision by the                      
 supreme court, and the remanding of the case back to the                      
 superior court for a finding in the inherent risk of skiing.                  
 Number 372                                                                    
 MR. BOND explained the court decided they couldn't determine                  
 whether it was a man-made jump or a natural feature of the                    
 hill, and he described the accident as to the type of risk.                   
 SENATOR TAYLOR asked MR. MESTAS for his opinion, and MR.                      
 MESTAS explained his understanding the ski area was directly                  
 involved in creating the jump.                                                
 SENATOR JACKO objected to Amendment 13A, and in a vote the                    
 amendment failed.                                                             
 SENATOR TAYLOR moved to adopt Amendment 13B, MESTAS, on page                  
 3, lines 22 and 23, to delete Subsection (4).                                 
 SENATOR JACKO objected for an explanation.                                    
 MR. BOND explained the subsection as being an important                       
 statement regarding the legislative intent of the bill, and                   
 he defended the importance of the language.                                   
 MR. MESTAS explained the subsection was unnecessary because                   
 it already was the law, and there was no need to restate it.                  
 Number 419                                                                    
 With consent of committee, SENATOR TAYLOR withdrew Amendment                  
 SENATOR TAYLOR moved to adopt Amendment 14, MESTAS, on page                   
 3, lines 30 and 31, and on page 4, lines 1 and 2, to delete                   
 Subsection (2).                                                               
 SENATOR JACKO objected for an explanation, and SENATOR TAYLOR                 
 called on MR. MESTAS.                                                         
 MR. MESTAS said this amendment was one of the most critical.                  
 He explained why it was unworkable in the instruction of a                    
 jury on the law of negligence, and how it differed from the                   
 present law on negligence.  He suggested a percent of injury                  
 would be attributed to every part of the ski area, and he                     
 described how absurd that would be.                                           
 MR. BOND agreed with MR. MESTAS' explanation and explained                    
 There being no objection, SENATOR TAYLOR announced Amendment                  
 14 passed.                                                                    
 SENATOR TAYLOR moved to adopt Amendment 15, MESTAS, on page                   
 5, lines 2 through 10, which would delete (a), (1) and (2) of                 
 Section 05.45.040.  SENATOR JACKO objected for sake of                        
 Number 461                                                                    
 MR. MESTAS questioned the elements of the plan of operation                   
 and by whom would it be implemented and regulated.  Rather                    
 than deleting the specified subsections, MR. MESTAS decided                   
 rather to insert additional language which would increase the                 
 stringency of the operating plans after the word, "aid," on                   
 line 6.  He thought there didn't appear to be adequate public                 
 comment on what was going to be in the operating plan.                        
 The sponsor of SB 44, SENATOR KELLY, stressed the Department                  
 of Public Safety did not wish to be involved, and SENATOR                     
 TAYLOR entertained a motion to delete Public Safety and                       
 substitute the Department of Natural Resources.  He was                       
 informed this had been done.                                                  
 SENATOR LITTLE and SENATOR TAYLOR discussed who would be                      
 responsible, and SENATOR TAYLOR emphasized there had to be                    
 some responsible agency.                                                      
 Number 508                                                                    
 MR. BOND explained that ski operation plans were highly                       
 individualized, and he objected to regulations that would                     
 apply to all ski areas in the State of Alaska.  He preferred                  
 to see the plans tailored to specific ski areas, and he had                   
 some problems with the definition of stringent.  He suggested                 
 the regulations should be left to the Department of Natural                   
 Resources with their expertise.                                               
 SENATOR LITTLE expressed concern that with the amendment, ski                 
 operators could pare down their area operation plan.  MR. BOND                
 surmised area operators would do the absolute minimum, and he                 
 thought the Department of Natural Resources should review the                 
 plans for changes each year.                                                  
 MR. MESTAS cited (c) on line 19, as specifying the state would                
 not be liable for civil damages resulting from review and                     
 approval of the operation plan.  He asked the record to                       
 reflect it would be a misinterpretation of Subsection (c).                    
 MR. BOND said (c) was recently added by the committee.                        
 SENATOR JACKO maintained his objections, and Amendment 15                     
 failed on vote.  SENATOR TAYLOR expressed his difficulty with                 
 the word, stringent, also.                                                    
 SENATOR TAYLOR moved to adopt Amendment 16, MESTAS, on page                   
 8, lines 22 through 31, which would revise Subsection (4) on                  
 line 22.                                                                      
 MR. MESTAS described what he considered mixed messages to the                 
 public on the marking of "man made structures," and he was                    
 concerned there was some limit in the responsibility of man-                  
 made structures.  He had some problems with the definition in                 
 what he considered the "natural" variations on the slopes.                    
 SENATOR TAYLOR was skeptical over the object of MR. MESTAS'                   
 amendment, and SENATOR LITTLE asked about the removal of the                  
 portion he had faxed to the committee, beginning with "natural                
 variations," inserted after "include" on line 29.                             
 SENATOR LITTLE asked if he planned to eliminate the last                      
 section of Subsection (4), and KENNY LEAF, aide to SENATOR                    
 TAYLOR explained why he had underlined the last part of (4).                  
 Number 577                                                                    
 SENATOR TAYLOR quizzed MIKE FORD, the drafter of SB 44, about                 
 the section in question.  MR. FORD suggested that MR. MESTAS                  
 was trying to clarify the section by adding "natural" before                  
 variations on line 29 and put a ; after terrain.                        
 TAPE 93-34, SIDE B                                                            
 Number 001                                                                    
 MR. FORD explained, if the committee wanted to change the                     
 exclusion, the remainder of the sentence could be deleted.                    
 SENATOR TAYLOR checked the changes on the work draft, and                     
 SENATOR LITTLE asked MR. MESTAS if he intended to add, on line                
 22, after "water pipes," roads, catwalks, and terrain                        
 modifications.  MR. MESTAS said he did make the additions on                 
 line 22.                                                                      
 SENATOR TAYLOR clarified Amendment 16 on line 22 and line 29.                 
 MR. BOND reviewed the hazards of skiing, including man-made,                  
 with the redesigning of contour slopes for easier access for                  
 various reasons.  He claimed the bill already requires the                    
 marking of some physical objects, and he referred to MR.                      
 MESTAS ' proposed amendment on page 9, lines 5 through 7.  MR.                
 BOND envisioned a sea of bamboo if the amendment was allowed,                 
 and he gave an example from the Alyeska Resort.                               
 SENATOR DONLEY reviewed the arguments and added his own for                   
 safety on the ski slopes.  He expected the hazards to be                      
 marked, especially since he was spending a large amount of                    
 money to ski.  He thought marking hazards was the only                        
 redeeming feature of the bill, but he thought the bill was                    
 lacking in the protection of public policy.                                   
 SENATOR TAYLOR called for questions on Amendment 16, and on                   
 a 3-2 vote, the amendment passed.                                             
 Number 068                                                                    
 SENATOR TAYLOR offered Amendment 17A, on page 9, lines 1                      
 through 4, and asked MR. MESTAS to explain his amendment.                     
 MR. MESTAS explained the amendment would change the word,                     
 "groomed," after "located on," to open, on line 2, and he                   
 explained his reasons.  He claimed the most hazardous spots                   
 are on the un-groomed runs at Alyeska, and he thought there                   
 was no rationale for not marking un-groomed runs.                             
 MR. MESTAS explained the present language would severely                      
 downgrade the responsibility of Sabu at Alyeska, where they                   
 are presently required to mark hazards without limitation to                  
 groomed runs, as well as hazards on their primary and open                    
 MR. BOND said there was no possible way to mark all of the                    
 natural hazards on the entire mountain, and he described how                  
 the terrain can change quickly with the variety in weather.                   
 He thought marking groomed runs made a substantial burden on                  
 the area operator, and the operators would not be able to                     
 comply with the amendment.                                                    
 MR. MESTAS said that philosophy would mean the committee was                  
 wasting time with the entire bill, and he suggested a good                    
 common sense marking policy such as in Appendix J of the                      
 Eaglecrest Plan would be best.  He said hazards should be made                
 reasonably visible before they were hit.                                      
 Number 129                                                                    
 SENATOR TAYLOR suggested MR. MESTAS had raised an interesting                 
 point, and he was bothered by MR. BOND's comments on grooming.                
 MR. BOND said the desire for grooming was driven by the                       
 demands of the skier population, so area operators were going                 
 to groom no matter what, and he described how a grove of trees                
 would need to be marked as the weather changed on a minute by                 
 minutes basis.                                                                
 SENATOR TAYLOR and MR. BOND discussed what hazards would need                 
 to be designated with bamboo markers.                                         
 SENATOR TAYLOR reviewed Amendment 17A, and it passed the                      
 committee.  Without objections, so ordered.                                   
 SENATOR TAYLOR moved to adopt Amendment 17B, MESTAS, on page                  
 9, lines 5 through 7, which would delete [(C) MARK ROADS,                     
 A DISTANCE OF AT LEAST 100 FEET;].                                            
 MR. FORD explained the previous amendment now makes this                      
 provision unnecessary.                                                        
 SENATOR TAYLOR announced Amendment 17B had passed committee.                  
 Without objections, so ordered.                                               
 SENATOR TAYLOR moved to adopt Amendment 18, MESTAS, on page                   
 9, lines 9 through 31, and asked MR. MESTAS to explain his                    
 proposed amendment.                                                           
 Number 177                                                                    
 MR. MESTAS said he was suggesting by Amendment 17 that, first                 
 of all, a correct statement of the law be made to people who                  
 are reading the sign, since, he contended, the present form                   
 of the warning is not correct under this bill, nor the law as                 
 it was previously.  He said skiers are going to be told by the                
 legislature that virtually under no circumstances can they                    
 ever recover from a ski area.  He suggested the legislature                   
 was mandating legal advice and would be responsible in the                    
 event of an accident.                                                         
 SENATOR TAYLOR asked for MR. BOND's response.  MR. BOND said                  
 the warning sign was displayed in every ski area in Colorado                  
 and was generally uniform across the country.  He denied it                   
 was legal advice, but he said was information about the                       
 inherent risks of skiing.  He said it was to inform a person                  
 before they become a patron that there are certain inherent                   
 risks listed by the legislature in the statute.  He said they                 
 could then choose whether or not to incur those risks, and he                 
 compared it to warning labels on tobacco products.                            
 MR. BOND offered an alternative borrowed from the current                     
 Minnesota proposal which would require operators to provide                   
 skiers with a full copy of the statute upon request and would                 
 inform the patrons fully, not piecemeal such as suggested in                  
 the bill.                                                                     
 In playing the devil's advocate, SENATOR TAYLOR reviewed the                  
 proposed warning supported by MR. BOND in the legislation,                    
 which would prohibit a skier from recovering from a ski area                  
 operator for an injury resulting from a list of inherent                      
 dangers and risks of skiing.  He asked MR. BOND why it                        
 wouldn't be fair to tell the skiers from what things they                     
 could recover.                                                                
 MR. BOND explained why it would be unacceptable to the                        
 industry, and he argued it would be an invitation to sue.  He                 
 blamed MR. MESTAS for wanting an open invitation to sue ski                   
 area operators.  MR. BOND then suggested saying, "Under Alaska                
 law the risk of an injury to a person or property resulting                   
 from an inherent danger of risk of skiing rests with the                      
 skier, and inherent risks include ...."  He thought this would                
 get away from the accusation of legal advice.  With this, he                  
 also suggested having copies of the statute available for any                 
 patron who wants it.  He reiterated his objection to putting                  
 an invitation to sue on a sign board beside a chairlift.                      
 SENATOR TAYLOR corrected MR. MESTAS' amendment to include the                 
 word "solely," after the word, "resulting" in two places on                   
 lines 24 and 26, and he checked with MR. MESTAS, who said he                  
 was correct.                                                                  
 SENATOR LITTLE asked MR. MESTAS about an inconsistency in the                 
 language in the warning sign and how it related to flagging.                  
 Number 247                                                                    
 MR. MESTAS pointed out other inconsistencies in SB 44 which                   
 seemed to be an invitation to a suit and not a correct                        
 statement of the bill.                                                        
 SENATOR JACKO questioned MR. BOND's statement of providing                    
 skiers with a copy of the statute, and SENATOR TAYLOR relayed                 
 his statement to MR. MESTAS.                                                  
 MR. MESTAS suggested posting the law rather than giving an                    
 incomplete statement of the law, but he objected to MR. BOND's                
 suggestion of making the statutes available.  He said there                   
 should be a correct statement of the risk, which he thought                   
 was MR. BOND's warning to skiers.  MR. MESTAS still contended                 
 the warning statement in the bill was inaccurate.                             
 SENATOR JACKO suggested skiers would need to bring along an                   
 attorney to interpret the statute, and the committee members                  
 agreed it was complex.                                                        
 SENATOR LITTLE said she was not in favor of providing a                       
 statute to the skiers, and she quoted SENATOR JACKO as to the                 
 confusion of such actions.                                                    
 SENATOR LITTLE moved to adopt an amendment to Amendment 18 to                 
 insert "visible" before "bare spots," on line 28, before                      
 "rocks," and before "stumps."  SENATOR TAYLOR discussed the                   
 drafting of her amendment with MR. FORD, and the amendment                    
 to Amendment 18 passed.  Without objections, so ordered.                      
 After some discussion, SENATOR TAYLOR announced Amendment 18                  
 had passed.  Without objections, so ordered.                                  
 SENATOR TAYLOR moved to adopt Amendment 19, MESTAS, page 11,                  
 lines 11 through 13, to delete the last line of Section                       
 05.45.100(a).  He explained MR. MESTAS' argument and asked for                
 MR. BOND's rebuttal.                                                          
 MR. BOND clarified the present legislation would encourage                    
 litigation between the skiers rather than the ski area, a                     
 collision would be an inherent risk of skiing, hence, no                      
 liability on the part of the ski area for such a collision.                   
 He reviewed the skier's responsibility as outlined on page 11                 
 in Section 05.45.100(b).  He reiterated his opposition to the                 
 Number 335                                                                    
 After a vote, SENATOR TAYLOR announced Amendment 19 had passed                
 the Judiciary Committee, which deleted lines 11 through 13 on                 
 page 11.  Without objections, so ordered.                                     
 SENATOR TAYLOR moved to adopt Amendment 20, MESTAS, on page                   
 20, line 5, to insert "rebuttable" before the word                            
 "presumption."  Without objections, so ordered.                               
 SENATOR TAYLOR moved to adopt Amendment 21, MESTAS, on page                   
 12, line 31 and on page 13, line 1 through 12, which would                    
 delete the definition of "inherent danger and risk of skiing,"                
 and substitute another definition.  SENATOR TAYLOR asked MR.                  
 MESTAS to explain the definition change.                                      
 MR. MESTAS said his object in offering the amendment was to                   
 achieve simplicity as opposed to the present definition which                 
 he described as confusing and unworkable for any jury or                      
 judge.  He quoted the language from the Hiibschman decision                   
 as to the definition of inherent risk reflected in his                        
 language in the amendment.                                                    
 MR. BOND accused MR. MESTAS of being selective in quoting                     
 parts of the Hiibschman decision, and he reviewed parts in the                
 decision which listed the inherent risks.  He said the list                   
 was very important and had to be there.                                       
 Number 409                                                                    
 SENATOR LITTLE expressed confusion at MR. BOND's comments, and                
 she quoted some of his comments.                                              
 MR. MESTAS praised SENATOR LITTLE as defining the problem of                  
 previous hazards, and he suggested there should be consistency                
 with the previous provisions of the bill as to the ski area                   
 SENATOR TAYLOR announced the passage of Amendment 21.  Without                
 objections, so ordered.                                                       
 SENATOR TAYLOR discussed with GRETCHEN PENCE, Special                         
 Assistant for the Department of Public Safety, on page 5, line                
 8, the change of responsibility from the commissioner of                      
 Public Safety to the commissioner of natural resources.                       
 SENATOR LITTLE asked if there would be any changes in the                     
 fiscal note in relation to changes made by the committee.                     
 SENATOR TAYLOR concluded there would be no fiscal impact.                     
 SENATOR HALFORD moved to pass CS FOR SENATE BILL NO. 44(JUD),                 
 as amended, out of committee with individual recommendations.                 
 SENATOR DONLEY objected.  The roll was taken with the                         
 following result:  Senators Little and Halford voted "Yea" and                
 Senators Donley and Taylor voted "Nay."  The Chairman stated                  
 the motion to move the bill out of committee had failed.                      

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