Legislature(1997 - 1998)
05/10/1998 01:45 PM Senate TRA
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* first hearing in first committee of referral
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+ teleconferenced
= bill was previously heard/scheduled
CSHB 12(FIN) am - IMMUNITY FOR EQUINE ACTIVITIES
REPRESENTATIVE GARY DAVIS, sponsor of HB 12, described the bill as
follows. HB 12 establishes the responsibilities and liability of
owners, operators, and users of commercial recreational activities
for injuries occurring from certain skating and cycling activities.
The legislation is supported by many groups. The bill was amended
on the House floor to include the liabilities and responsibilities
of municipal cycling and skating facilities. He informed committee
members he has prepared a proposed amendment to correct technical
changes that need to be made to the bill resulting from the House
floor amendment.
Number 131
CONNIE JONES, representing the Municipality of Anchorage (MOA),
stated the MOA has been working on similar legislation for about
five years and is very interested in seeing this bill pass. MOA
believes this is a fair way to demonstrate the responsibilities of
both the user and the operator of commercial recreational
facilities. HB 12 does not entirely relieve municipalities of
liability; it requires municipalities to construct and maintain a
municipal skating or cycling facility in a manner that is not
negligent. The Youth Commission, The Anchorage Chamber of
Commerce, the Municipal Assembly, the Downtown Anchorage
Association, and the municipal government support this legislation.
The MOA currently has $83,000 available from bonds and an
appropriation from the Assembly to build a skateboard park which it
very much wants to do, but will not until this legislation passes.
Number 158
RUSS WINNER, representing the Alaska Action Trust, gave the
following testimony on what it views as the two aspects of HB 12:
commercial recreational activity and skateboarding and cycling.
The Alaska Action Trust believes this legislation is unnecessary
for three reasons. First, litigation in this area is uncommon, and
it is doubtful the litigation that has occurred has had any effect
on the growth of the industry. Second, current Alaska law provides
for allocation of fault to the plaintiff, based on his or her
acceptance of the obvious risks of the activity. Third, the
Legislature enacted tort reform legislation last year. That
legislation contained caps on compensation for pain and suffering,
non-economic damages and punitive damages, and it broadened the
ability of a defendant to allocate fault to persons who are not
litigants. Further protections in this area are unnecessary. The
Alaska Action Trust suggests that the Legislature wait and see what
effect the new tort reform legislation has on liability for
injuries. The Alaska Action Trust assumes the purpose of this
legislation is to reduce insurance rates for the operators of
commercial recreational activities, however it is unlikely that
insurance rates will be affected by HB 12. Insurance rates are set
by companies on a region wide basis and the particular statutes
enacted in Alaska will have little, if any, effect on insurance
rates. Instead, insurance companies will look at the loss record
for the region. One provision of HB 12 states that a customer of
commercial recreational activities is contributorily negligent to
the extent that the inherent risk of the activity causes his/her
harm. The Alaska Action Trust questions whether establishing a
policy that says that the user is negligent to the extent that
he/she chooses to participate in the activity will result in poor
public relations between this industry and tourists and visitors
from out of state.
MR. WINNER pointed out inconsistent and confusing language in the
bill could invite litigation. Section .010 refers to liabilities
to the operator for "inherent risks". Section .030 requires
participants to learn about the "risks". Section .040 requires the
operator to explain the "fundamental inherent risks." He
questioned whether the participant is to learn about the inherent
risks or a broader category of risks and whether all three types of
risks are the same. Also, the bill requires participants to learn
about the risks but does not explain how they are to learn, or from
whom, nor does the bill address the effect on the allocation of
fault if the participant does not learn. The bill imposes certain
responsibilities on operators, such as explaining the fundamental
inherent risks of the activity. Once again, the bill is silent as
to how, and by whom, this explanation is to occur. Also, the
effect of having provided an explanation is not clear, therefore
litigation over the significance of that requirement could occur.
This legislation appears to be special interest legislation and its
constitutionality would be subject to attack for that reason. He
cited the case of Turner v. Scales as a case in which the Supreme
Court struck down similar special interest legislation as
unconstitutional.
MR. WINNER stated the skating and cycling provisions in HB 12 are
similar to the Alaska's ski statutes, AS 05.35.040, but contain
significant differences. The ski statute grants certain qualified
immunity to ski operators only if they meet certain operational
requirements. The ski operator must have an operating plan, a ski
patrol, and a policy for removing reckless skiers.
Number 273
CHAIRMAN WARD informed committee members that several options for
HB 12 are available. The committee could adopt the original bill
which only pertains to equine activities. That option will require
a resolution to change the title. The second option is to work on
the bill as is.
Number 281
SENATOR WILKEN moved to adopt the proposed amendments prepared by
Representative Davis.
SENATOR GREEN asked if it would be appropriate for the committee to
adopt the earlier version and bypass the need for the resolution.
SENATOR WILKEN asked what version the committee is working from.
CHAIRMAN WARD clarified the Senate Transportation Committee
substitute in members' packets is the original bill introduced by
Representative Davis and pertains to equine activities only. If
committee members want to deal with the original bill, the
committee will have to adopt a Senate concurrent resolution to
change the title.
Number 304
SENATOR WILKEN asked if CSHB 12(TRA)am (F.a version) is an active
version.
REPRESENTATIVE DAVIS explained that version was passed by the
House.
SENATOR WILKEN asked if Representative Davis' proposed amendments
were to CSHB 12(TRA)am.
REPRESENTATIVE DAVIS said they are.
Number 312
SENATOR HALFORD commented a good portion of that bill creates an
exemption from liability for a municipal entity for doing the same
thing as a private entity. He asked why an exemption is justified
for one and not the other.
REPRESENTATIVE DAVIS replied the section relating to commercial
recreational activities refers to private entities and does not
include municipalities.
SENATOR HALFORD asked if the general liability limitation on
commercial outdoor activities would apply to a private skateboard
facility.
REPRESENTATIVE DAVIS said that is his understanding.
SENATOR HALFORD maintained the effect of the bill will be to create
an exemption for private outdoor activities and for municipal
skating and cycling facilities.
CHAIRMAN WARD stated that is why a title change will be necessary
if the committee chooses to limit the exemption to equine
activities.
CHAIRMAN WARD announced the motion to adopt Representative Davis'
proposed amendments was before the committee, and that he objected
to that motion.
SENATOR WILKEN asked Chairman Ward why he was objecting.
CHAIRMAN WARD said he wanted to have a discussion as to whether the
committee should adopt the original bill instead of letting CSHB
12(TRA)am be the instrument that provides public funding for
insurance for a sport.
Number 353
REPRESENTATIVE DAVIS clarified the proposed amendments only relate
to the CSHB 12(TRA)am version, therefore if the motion carries, the
committee will still have the option of addressing any version of
the legislation.
CHAIRMAN WARD said he was unsure whether he wanted to give any
consideration at all to CSHB 12(FIN)am. He asked Representative
Davis if the version of HB 12 that passed the House does what he
originally intended it to do.
REPRESENTATIVE DAVIS said it does, but because of the machinations
of liability legislation, he tried to address a specific issue
rather than a collective issue.
CHAIRMAN WARD noted he would like to get HB 12 in a form that the
committee is willing to pass out.
SENATOR HALFORD asked Chairman Ward if he maintained his objection
to adopt the Senate Transportation Committee substitute.
CHAIRMAN WARD removed his objection to adopting the proposed
amendments.
CSHB 12(FIN) am - IMMUNITY FOR EQUINE ACTIVITIES
SENATOR GREEN moved SCSCSHB 12(TRA) out of committee with
individual recommendations and its accompanying fiscal note. There
being no objection, the motion carried.
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