Legislature(1993 - 1994)
03/31/1993 01:55 PM Senate JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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 satisfied. (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 followed. 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 obligation. 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 opinion. 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 THE ALASKA SUPREME COURT IN HIIBSCHMAN V. CITY OF VALDEZ, 821 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 critical. 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 13B. 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 why. 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 discussion. 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 runs. 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, CATWALKS, OR OTHER TERRAIN MODIFICATIONS THAT ARE NOT READILY VISIBLE TO SKIERS UNDER CONDITIONS OF ORDINARY VISIBILITY FROM 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 amendment. 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 liability. 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.