Legislature(1993 - 1994)
03/05/1993 01:00 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HOUSE JUDICIARY STANDING COMMITTEE
March 5, 1993
1:00 p.m.
MEMBERS PRESENT
Rep. Brian Porter, Chairman
Rep. Jeannette James, Vice-Chair
Rep. Pete Kott
Rep. Gail Phillips
Rep. Cliff Davidson
Rep. Jim Nordlund
MEMBERS ABSENT
Rep. Joe Green
COMMITTEE CALENDAR
HB 41: "An Act relating to civil liability for skiing
accidents, operation of ski areas, and duties of
ski area operators and skiers; and providing for
an effective date."
HELD IN COMMITTEE FOR FURTHER CONSIDERATION
*HB 167: "An Act relating to air quality control and the
prevention, abatement, and control of air
pollution; relating to civil and criminal
penalties, damages, and other remedies for air
quality control violations; clarifying the
definition of 'hazardous substance' to include
releases and threatened releases to the
atmosphere; amending the lien provisions relating
to the oil and hazardous substance release
response fund; relating to inspection and
enforcement powers of the Department of
Environmental Conservation; and providing for an
effective date."
NOT HEARD; RESCHEDULED TO MARCH 10, 1993
(* First public hearing.)
WITNESS REGISTER
FRED TURTON
Juneau Ski Club
P.O. Box 32103
Juneau, Alaska 99803
Phone: 789-2396
Position Statement: Supported HB 41
CRISTI HERRiN
P.O. Box 21595
Juneau, Alaska 99802
Phone: 586-9857
Position Statement: Supported HB 41
PAUL SWANSON, Manager
Eaglecrest Ski Area
155 South Seward Street
Juneau, Alaska 99801
Phone: 586-5284
Position Statement: Supported HB 41
RAGA ELIM
Special Assistant to the Commissioner
Department of Natural Resources
400 Willoughby Avenue
Juneau, Alaska 99801-1724
Phone: 465-2400
Position Statement: Supported HB 41
REP. GAIL PHILLIPS
Alaska State Legislature
Capitol Building, Room 216
Juneau, Alaska 99801-1182
Phone: 465-2689
Position Statement: Prime Sponsor of HB 41
RICHARD HARREN
3830 Birch View Drive
Wasilla, Alaska 99654
Phone: 376-7424
Position Statement: Opposed HB 41
CYNTHIA CHRISTIANSEN
2101 Belmont Drive
Anchorage, Alaska 99517
Phone: 279-1707
Position Statement: Opposed HB 41
MARC BOND
1007 W. 3rd Ave., #400
Anchorage, Alaska 99501
Phone: 279-3581
Position Statement: Commented on HB 41
BRUCE RIZER
5530 Rabbit Creek Road
Anchorage, Alaska 99516
Phone: 345-1743
Position Statement: Opposed HB 41
ROBERT MOSS
P.O. Box 1206
Homer, Alaska 99603
Phone: 235-8304
Position Statement: Commented on HB 41
DEBORAH NYE
36975 Maria Court
Homer, Alaska 99603
Phone: 235-6811
Position Statement: Commented on HB 41
SUSAN LOWE
6320 Switzerland Drive
Anchorage, Alaska 99516
Phone: 345-6854
Position Statement: Opposed HB 41
DAVID LOWE
6320 Switzerland Drive
Anchorage, Alaska 99516
Phone: 345-6854
Position Statement: Opposed HB 41
PATTI RIZER
5530 Rabbit Creek Road
Anchorage, Alaska 99516
Phone: 345-1743
Position Statement: Opposed HB 41
LAURIE MAPES
5301 Rabbit Creek Road
Anchorage, Alaska 99516
Phone: 345-0301
Position Statement: Opposed HB 41
PREVIOUS ACTION
BILL: HB 41
SHORT TITLE: CIVIL LIABILITY FOR SKIING ACCIDENTS
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S)PHILLIPS,Hudson,Porter,Toohey,
Mulder
TITLE: "An Act relating to civil liability for skiing
accidents, operation of ski areas, and duties of ski area
operators and skiers; and providing for an effective date."
JRN-DATE JRN-PG ACTION
01/11/93 34 (H) READ THE FIRST TIME/REFERRAL(S)
01/11/93 35 (H) LABOR & COMMERCE, JUDICIARY,
FINANCE
01/26/93 (H) L&C AT 03:00 PM CAPITOL 17
01/26/93 (H) MINUTE(L&C)
01/29/93 183 (H) COSPONSOR(S): TOOHEY
02/04/93 (H) L&C AT 03:00 PM CAPITOL 17
02/09/93 (H) L&C AT 03:00 PM CAPITOL 17
02/09/93 (H) MINUTE(L&C)
02/10/93 285 (H) L&C RPT CS(L&C) 5DP 1DNP
02/10/93 285 (H) DP: PORTER, GREEN, MULDER,
MACKIE, HUDSON
02/10/93 285 (H) DNP: SITTON
02/10/93 285 (H) -5 ZERO FNS (DNR,COURT,DCED,LAW
02/10/93 285 (H) -LABOR) 2/10/93
02/10/93 285 (H) REFERRED TO JUDICIARY
02/10/93 312 (H) COSPONSOR(S): MULDER
03/05/93 (H) JUD AT 01:00 PM CAPITOL 120
BILL: HB 167
SHORT TITLE: AIR QUALITY CONTROL PROGRAM
BILL VERSION:
SPONSOR(S): REPRESENTATIVE(S) HANLEY
TITLE: "An Act relating to air quality control and the
prevention, abatement, and control of air pollution;
relating to civil and criminal penalties, damages, and other
remedies for air quality control violations; clarifying the
definition of `hazardous substance' to include releases and
threatened release to the atmosphere; amending the lien
provisions relating to the oil and hazardous substance
release response fund; relating to inspection and
enforcement powers of the Department of Environmental
Conservation; and providing for an effective date."
JRN-DATE JRN-PG ACTION
02/19/93 390 (H) READ THE FIRST TIME/REFERRAL(S)
02/19/93 390 (H) JUDICIARY, FINANCE
03/05/93 (H) JUD AT 01:00 PM CAPITOL 120
ACTION NARRATIVE
TAPE 93-26, SIDE A
Number 000
The House Judiciary Committee meeting was called to order at
2:09 p.m. on March 5, 1993. A quorum was present. CHAIRMAN
PORTER announced that the meeting was on teleconference. He
said that the first item before the committee was HB 41.
HB 41 - CIVIL LIABILITY FOR SKIING ACCIDENTS
Number 041
FRED TURTON, DIRECTOR OF THE JUNEAU SKI CLUB, cited his many
skiing qualifications and associations. He said that he
supported HB 41. He stated that as a coach, he strove to
provide his students with challenges and encourage their
adaptability. He noted that the terrain in Alaska provided
a great opportunity to teach that adaptability.
(Rep. Nordlund arrived at 2:12 p.m.)
Number 123
MR. TURTON commented that one of his goals as a ski
instructor was to teach personal responsibility. He said
that HB 41 would encourage that responsibility among skiers.
He noted that skiing was not accessible to everyone due to
the cost. He commented that as litigation increased, so too
did the cost of skiing.
MR. TURTON stated that injuries were an inherent part of
skiing, even when a ski area took many precautions to
prevent injuries. He added that skiers choose to go skiing,
and they should not be prevented from making that choice and
other choices they make while on a ski slope. He commented
that without HB 41, a skier's choices would be limited.
Number 254
CRISTI HERRIN testified in support of HB 41. She said that
in her understanding, HB 41 would hold ski areas responsible
for those things which they could control, but would also
recognize that ski areas could not control certain elements,
and therefore should not be held responsible for them. She
said HB 41 seemed like a common-sense approach to her. She
added that she was often impressed with how much ski areas
did for their customers. She stated that she never felt
that her responsibility to take care of herself was
abdicated when she skied at a ski area. She expressed her
fear that without HB 41, liability costs would skyrocket,
making skiing unaffordable to most people.
Number 298
PAUL SWANSON, MANAGER OF EAGLECREST SKI AREA, testified in
support of HB 41. He noted that there are inherent risks in
all sports, but ski area operators also had
responsibilities. He commented that HB 41 helped to define
those responsibilities and would help all ski areas in
Alaska.
Number 334
REP. NORDLUND asked Mr. Swanson how a limitation on
Eaglecrest's liability would be reflected in insurance rates
and ticket prices.
Number 345
MR. SWANSON replied that at the present time, Eaglecrest was
not a profitable operation, and therefore he could not say
how a limitation on liability would affect ticket prices.
He added that nationally, there were only two large
companies and a couple of smaller ones, that insured ski
areas.
Number 359
REP. NORDLUND commented that passage of HB 41 would not
necessarily result in lower ticket prices.
Number 362
MR. SWANSON responded that he could not say that, at least
not in the case of Eaglecrest.
Number 370
RAGA ELIM, of the DEPARTMENT OF NATURAL RESOURCES, said that
he supported HB 41 in general, but wished to address a
change that had been made by the Labor and Commerce
Committee. He called the members' attention to the top of
page 5, section 05.45.040. He said that the change
pertained to the method of approving plans of operation. He
noted that he had worked with the Senate to amend its bill
so as to get the appropriate party to approve an operational
plan. He stated that ski areas would either be on state
land, federal land, or private land. In the department's
opinion, a different authority should be responsible for
plan approval, based on land ownership.
MR. ELIM indicated that the framework which he had just
mentioned appeared in the original HB 41, but was changed in
the House Labor and Commerce committee substitute. He said
the department recommended that the committee substitute be
changed back to the original framework for plan approval.
Number 440
CHAIRMAN PORTER indicated that the committee would be
addressing several amendments at the conclusion of
testimony.
REP. GAIL PHILLIPS, PRIME SPONSOR OF HB 41, commented that
she had not heard of Mr. Elim's proposed amendment until
today.
MR. ELIM apologized for not having brought the proposed
amendment to the sponsor's attention until today.
REP. PHILLIPS stated that the House Labor and Commerce
Committee had passed HB 41 out of committee with five "do
pass" votes. She said that the goal of HB 41 was to enable
Alaskans to continue skiing at a reasonable cost and under
safe conditions. She stated that the bill was also intended
to promote economic development in the state. She noted
that HB 41 was comprised of three parts. The first part,
she said, set forth the duties of ski operators and skiers.
The second part dealt with liabilities that arose from the
violation of those duties. The third part indicated that
there were inherent risks in skiing that were the skier's
responsibility. She noted that HB 41 expanded the
definition of "inherent risk" and provided additional
liability protection for ski area operators by imposing
additional safety duties on ski area operators and skiers.
REP. PHILLIPS commented that HB 41 was supported by a wide
range of Alaskans. She said that she wanted to make one
minor amendment to the bill. She stated that the Kachemak
Bay Ski Club of Homer was concerned that strict adherence to
HB 41's provisions would cause the club to cease operations.
She added that the club could not conform to the requirement
about the qualifications of the ski patrol. Her proposed
amendment would exempt the Kachemak Bay Ski Club and the
Russian Jack Springs ski area in Anchorage from the ski
patrol standards only.
REP. PHILLIPS commented that HB 41 had no fiscal impact to
the state. She expressed her sympathies to those families
who had suffered tragic losses of loved ones as a result of
ski accidents. She indicated her view that HB 41 would
serve the best interests of all Alaskans.
Number 526
RICHARD HERRAN testified in opposition to HB 41, as he said
that the bill would increase the risk faced by all skiers.
He noted that currently, Alaska ski areas enjoyed a good
reputation and good insurance rates. He said that accident
rates at ski areas were monitored and impacted a ski area's
insurance rates. If HB 41 were to pass, he said, ski areas
could reduce the protection offered to skiers because the
ski area's exposure to liability would be reduced. That
would result in more inherent risk to skiers, he added, and
higher insurance rates for the ski areas.
Number 551
MR. HERRAN commented that he thought there was a lot of
misunderstanding surrounding HB 41. He expressed his
opinion that HB 41 would result in less employment for
Alaskans due to the ski areas employing fewer people as a
result of providing less protection to skiers. He stated
that he saw HB 41 as increasing litigation, also.
MR. HERRAN noted that in light of the dangers of skiing,
insurance costs for ski areas were not that high. He
compared the cost of automobile insurance and the hazards of
driving with the cost of ski area insurance and the dangers
of skiing. Mr. Herran estimated that in only one out of ten
cases did an injured skier think about filing a claim,
because most skiing accidents were the result of "pilot
error."
MR. HERRAN urged the committee to not pass HB 41. However,
he said that if the committee wanted to pass some sort of
skiing liability bill, they should make certain changes to
the bill. He outlined his proposed changes. He recommended
that the paragraph regarding apportionment of fault be
eliminated, saying that it would set a precedent heretofore
unheard of in Alaska tort law.
MR. HERRAN called the members' attention to page 5,
paragraph A. He said that the phrase "and follow" should
follow "shall implement." He noted that "implement" was an
ambiguous term and would likely be litigated. He said
paragraph A should have another subsection which required
that if an operator or its predecessor had a plan in effect
on January 1, 1993, that plan would operate as a minimum
standard for that entity for skier safety in the future. He
said that such a provision would ensure that the "state of
the art" that a given ski area had achieved would remain in
place.
MR. HERRAN also recommended a change on page 8, paragraph 5.
He said the word "groomed" should be eliminated, because
many heavily-used trails at ski areas were not groomed. On
page 9, he recommended that the warning include the last
sentence of the definition of "inherent risk" found on page
12. Mr. Herran expressed an opinion that Alyeska would not
settle claims against it because the company did not want to
set a precedent of settling claims.
Number 754
REP. PHILLIPS asked Mr. Herran where he practiced law and
what type of lawyer he was.
Number 757
MR. HERRAN replied that his practice was in Wasilla and he
primarily counseled injury victims.
TAPE 93-26, SIDE B
Number 003
CHAIRMAN PORTER, seeing no other witnesses in Juneau who
wished to testify, turned to the teleconference sites.
Number 008
CYNTHIA CHRISTIANSEN testified via teleconference from
Anchorage. She said that she was an avid skier, the mother
of several avid skiers, and a lawyer. She expressed her
opinion that the inherent risks of skiing should not be the
responsibility of the ski area. However, she commented that
HB 41's definition of "inherent risk" included many elements
that were the responsibility of the ski area. She added
that HB 41 would let ski area operators "off the hook" for
many situations that they could control.
MS. CHRISTIANSEN spoke of an incident involving her son last
year in which he was lost at a ski area. The operator did
nothing to help find him, she said. Ms. Christiansen noted
that HB 41 essentially made the ski areas only responsible
for posting signs. She added that HB 41 placed virtually
all responsibility on the skier and none on the operator.
Number 108
MS. CHRISTIANSEN commented that HB 41 was an unbelievably
bad bill and that it should either be rewritten or thrown in
the garbage.
Number 124
MARC BOND, an ATTORNEY FOR ALYESKA SKI RESORT and LEGAL
COUNSEL FOR THE NATIONAL SKI PATROL SYSTEM, testified via
teleconference from Anchorage. He commented that he had
been a ski patrol member since 1972. Mr. Bond said that the
Minnesota legislature was going through the same process
that the Alaska legislature was with regard to skiing
liability legislation. He offered to answer any questions
that committee members might have.
Number 150
REP. DAVIDSON asked Mr. Bond to comment on assertions made
by the previous speaker about what was under the operator's
control and what the skier needed to take responsibility
for. He also asked Mr. Bond how Alyeska worked to make ski
areas safe.
Number 166
MR. BOND responded that in the event that a drunk
snowmachine operator collided with a skier, the ski area
operator would be liable. He added that if a lift tower
fell over, the operator would also be liable. Regarding an
instance in which a skier fell off of a 100-foot cliff on a
ski slope, he said that skiers needed to understand that
there were variations in terrain, both natural and
artificial. Visible variations in terrain were an inherent
risk of skiing, he said. He noted that HB 41 required ski
areas to mark non-visible obstacles with signs. He
concluded by saying that Ms. Christiansen had been incorrect
in asserting that in none of those three examples would a
ski area be held liable.
Number 201
REP. DAVIDSON asked Mr. Bond to comment on the suggested
elimination of the word "groomed" on page 8, line 21.
Number 205
MR. BOND said that elimination of the word "groomed" made
the law unworkable. He commented that it would be
unfeasible for a ski operator to mark every single tree
within the boundaries of a ski area.
REP. DAVIDSON asked if it were correct that Mr. Bond was an
attorney working for Alyeska.
Number 233
MR. BOND replied that Rep. Davidson was correct.
Number 237
REP. DAVIDSON asked Mr. Bond if he, as a parent, would be
satisfied that HB 41 included an exhaustive list of the
responsibilities of a ski area operator.
Number 240
MR. BOND replied that he had young children who would learn
to ski shortly. He indicated that HB 41 satisfied him, in
that it contained a great deal of direct responsibility for
the ski area operator. Also, he noted that an operator's
plan would have to be approved by a government agency.
REP. DAVIDSON asked Mr. Bond to respond to an earlier
comment about Alyeska not wanting to set the precedent of
settling claims.
Number 270
MR. BOND said that it was well known that there were "easy
marks" and not-so-easy marks when it came to litigation
defendants. Once one became known as an easy mark, he said,
one would get more claims. He noted that if a company paid
on some claims and litigated those for which the company
felt that it was not responsible, then the company would
come to be known as an entity that was willing to make a
defense.
Number 288
BRUCE RIZER testified via teleconference from Anchorage. He
said that for the past two years, the Alaska legislature had
considered inherent-risk-of-skiing bills. He commented that
this year, the ski industry had mounted a much more polished
and expensive campaign to convince legislators to pass a law
in the ski industry's self-interest.
MR. RIZER said that he had seen arguments in favor of HB 41
and similar bills range from increasing tourism, spelling
out the responsibilities of the skier and the ski area
operator, increasing investment opportunities, and stopping
people from suing ski areas.
MR. RIZER said HB 41 put the burden on the skier and assumed
that all skiers, even children and beginners, were able to
assess broad and often hidden risks. He added that HB 41
provided that if a ski area operator posted certain signs
and warned of certain conditions, they had fulfilled their
obligation to the public and could not be held liable.
MR. RIZER stated that he was shocked by what he had learned
about Seibu and its safety procedures. He mentioned that
his son, Bart, had died after becoming entrapped in deep,
bottomless snow on an open run in the middle of a bowl,
in a pocket or waterfall of a stream bed. He said that if
HB 41 had been in effect at the time of Bart's death, Seibu
would probably have been successful in having a lawsuit
thrown out of court.
MR. RIZER alleged that Alyeska had a high number of deaths
as compared to other ski areas in the nation. He commented
that it was nearly impossible to spell out every situation
in which a person could be injured. He stated that present
Rule 82, Alaska Rules of Civil Procedure, required that
anyone who brought an unsuccessful, frivolous lawsuit, be
held liable for the costs of the defense. He commented that
Rule 82 was a strong deterrent against frivolous lawsuits.
Mr. Rizer concluded by saying that the Alaska Supreme Court
had recently held that Alaska's inherent-risk-of-skiing
statute was fair to both the skier and the ski area
operator.
Number 436
ROBERT MOSS testified via teleconference from Homer. He
asked that the committee consider HB 41's ramifications on
the nonprofit Kachemak Bay Ski Club. He noted that the club
could comply with all of HB 41's requirements, except for
the ski patrol standards. He added that the amendment
proposed by the bill's sponsor would allow the club to
continue operating.
Number 450
DEBORAH NYE, a MEMBER of the KACHEMAK BAY SKI CLUB,
testified via teleconference from Homer in support of the
amendment proposed by Rep. Gail Phillips. She said that
given the small size of the Homer ski area, it was
unrealistic to expect compliance with HB 41's ski patrol
requirements. She added that the club supported the concept
of HB 41.
Number 468
REP. NORDLUND asked Ms. Nye what type of supervision and
first aid was available at the Kachemak Bay Ski Club area.
Number 475
MS. NYE replied that there were two adult club members on
the hill at all times, one at the top and one at the bottom.
She added that there was a telephone at the ski area and
medical help could be summoned immediately after an
accident. In the event of an accident, she said, the rope
tow would be closed immediately.
Number 485
REP. NORDLUND asked who owned the property where the
Kachemak Bay Ski Club ski area was located.
Number 486
MS. NYE replied that the ski area was on private property.
Number 488
REP. NORDLUND asked if the ski area was restricted to club
members or if it was open to the general public.
Number 490
MS. NYE responded that the ski area was open to the general
public.
Number 495
SUSAN LOWE, testifying via teleconference from Anchorage,
spoke in opposition to HB 41. She said that she was a
member of the National Ski Patrol and the mother of five
avid skiers. She said that her opposition stemmed from her
belief that HB 41 placed all responsibility on skiers.
MS. LOWE commented that there were many good provisions in
HB 41, but some responsibility needed to be taken by the ski
area operator.
MS. LOWE read testimony from her husband, David Lowe, into
the record. She cited her husband's extensive skiing
background. Mr. Lowe contrasted the approach taken by
Alyeska in response to the death of Bart Rizer with the
response of the Johnson and Johnson Company to the poisoned
Tylenol capsule scandal. While Johnson and Johnson was
clearly not at fault, he said, the company took
responsibility during the situation. At a time when Alyeska
ought to be reviewing its health, safety, and public
relations policies, he added, it was instead requesting
further protection from liability.
MR. LOWE commented that HB 41 reinforced the idea that
operators should be held blameless in the event of an injury
to a skier. He said ski areas could do a lot to reduce
risks to skiers. Mr. Lowe added that ski areas encouraged
children to become involved in skiing through a variety of
means. He said that if ski areas were going to entice
children, they needed to do everything possible to ensure
that the children would be safe. He noted that some risks
could not be eliminated, and a skier had to accept her or
his share of the risk. He said that an appropriate balance
must be found. He stated that HB 41 leaned too far toward
absolving ski areas of any responsibility, and was, in his
opinion, special-interest legislation.
MR. LOWE commented that Alaska already had a law which
spelled out the responsibilities of the ski area and the
skier, and adequately addressed the inherent risks of
skiing. He said HB 41 would give more protection to ski
areas and less to the skiing public. He cited the Bart
Rizer case as an example of ski areas ignoring safety in
order to protect their commercial interests.
TAPE 93-27, SIDE A
Number 000
MR. LOWE asserted that if Alyeska were concerned about the
safety of the general public, it would take a more pro-
active approach by openly discussing the Bart Rizer incident
with staff, ski patrol members, and the public. He urged
the committee not to pass HB 41, as it only encouraged
further neglect of important health and safety issues that
could and should be addressed by Alyeska.
Number 131
MS. LOWE commented that as a friend of the Rizer family, she
was aware that the Rizers wanted to see laws making skiing
safe for other children and were not after personal gain.
Number 156
PATTI RIZER indicated that she had sent a letter and
attachments to committee members and expressed her desire
that the members' read what she had sent. She said that
Alaska already had an inherent-risk-of-skiing law in place,
and the law had been upheld by the Alaska Supreme Court as
fair to both skiers and ski area operators.
MS. RIZER said that out of 26 states with similar laws,
Seibu Corporation had modeled HB 41 after the Colorado law,
which gave the ski industry more limited liability than any
other state law. She said that after Colorado had passed
its law, it had a very deadly ski season and lift ticket
prices went up.
MS. RIZER reminded the committee members that they
represented the people of Alaska. She said that there was
no monitor on the ski industry in Alaska. Ms. Rizer added
that passage of HB 41 would have no effect on her pending
lawsuit against Alyeska. She urged committee members to
think about their constituents and not let money sway their
votes on HB 41.
Number 288
LAURIE MAPES testified via teleconference from Anchorage in
opposition to HB 41. She said that ski operators would be
freed from a great deal of liability if HB 41 passed. She
asked committee members to carefully consider all of the
implications of passing HB 41.
Number 303
CHAIRMAN PORTER said that the committee would conclude
taking testimony on HB 41. He added that the bill would be
before the committee again, at a time uncertain. He
announced that the committee would quickly take up a letter
of intent for HB 2. Committee members reviewed the draft
letter of intent.
Number 329
REP. JAMES moved to adopt the letter of intent.
CHAIRMAN PORTER, hearing no objection, ordered that the
letter of intent be adopted by the committee.
ADJOURNMENT
CHAIRMAN PORTER adjourned the meeting at 3:44 p.m.
House Bill 167 was not heard at this time.
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