Legislature(2003 - 2004)
03/22/2004 01:10 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
ALASKA STATE LEGISLATURE
HOUSE JUDICIARY STANDING COMMITTEE
March 22, 2004
1:10 p.m.
MEMBERS PRESENT
Representative Lesil McGuire, Chair
Representative Tom Anderson, Vice Chair
Representative Jim Holm
Representative Dan Ogg
Representative Ralph Samuels
Representative Les Gara
Representative Max Gruenberg
MEMBERS ABSENT
All members present
COMMITTEE CALENDAR
HOUSE BILL NO. 534
"An Act extending the termination date of the office of victims'
rights."
- MOVED HB 534 OUT OF COMMITTEE
HOUSE BILL NO. 472
"An Act relating to claims for personal injury or wrongful death
against health care providers; and providing for an effective
date."
- MOVED CSHB 472(JUD) OUT OF COMMITTEE
SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 273
"An Act relating to the right of a parent to waive a child's
claim of negligence against a provider of sports or recreational
activities."
- MOVED CSSSHB 273(JUD) OUT OF COMMITTEE
PREVIOUS COMMITTEE ACTION
BILL: HB 534
SHORT TITLE: EXTEND OFFICE OF VICTIMS RIGHTS
SPONSOR(S): RULES BY REQUEST OF LEG BUDGET & AUDIT
03/08/04 (H) READ THE FIRST TIME - REFERRALS
03/08/04 (H) JUD, FIN
03/22/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 472
SHORT TITLE: CLAIMS AGAINST HEALTH CARE PROVIDERS
SPONSOR(S): REPRESENTATIVE(S) ANDERSON
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
02/25/04 (H) JUD AT 1:00 PM CAPITOL 120
02/25/04 (H) Heard & Held
02/25/04 (H) MINUTE(JUD)
03/03/04 (H) JUD AT 1:00 PM CAPITOL 120
03/03/04 (H) Heard & Held
03/03/04 (H) MINUTE(JUD)
03/05/04 (H) JUD AT 1:00 PM CAPITOL 120
03/05/04 (H) -- Meeting Postponed to 3/16/04 --
03/16/04 (H) JUD AT 1:00 PM CAPITOL 120
03/16/04 (H) Heard & Held
03/16/04 (H) MINUTE(JUD)
03/19/04 (H) JUD AT 1:00 PM CAPITOL 120
03/19/04 (H) Heard & Held
03/19/04 (H) MINUTE(JUD)
03/22/04 (H) JUD AT 1:00 PM CAPITOL 120
BILL: HB 273
SHORT TITLE: PARENTS' WAIVER OF CHILD'S SPORTS CLAIM
SPONSOR(S): REPRESENTATIVE(S) MCGUIRE
04/16/03 (H) READ THE FIRST TIME - REFERRALS
04/16/03 (H) TRA, JUD
05/07/03 (H) TRA REFERRAL WAIVED
02/16/04 (H) SPONSOR SUBSTITUTE INTRODUCED
02/16/04 (H) READ THE FIRST TIME - REFERRALS
02/16/04 (H) JUD
03/22/04 (H) JUD AT 1:00 PM CAPITOL 120
WITNESS REGISTER
STEPHEN BRANCHFLOWER, Director
Office of Victims' Rights (OVR)
Alaska State Legislature
Anchorage, Alaska
POSITION STATEMENT: Urged the committee to report HB 534 from
committee.
KARLA SCHOFIELD, Deputy Director
Accounting
Legislative Administrative Services
Legislative Affairs Agency
Juneau, Alaska
POSITION STATEMENT: During discussion of HB 534, answered
questions.
ROGER F. HOLMES, Attorney at Law
Biss & Holmes
Anchorage, Alaska
POSITION STATEMENT: During discussion of HB 472, answered
questions.
VANESSA TONDINI, Staff
to Representative Lesil McGuire
House Judiciary Standing Committee
Alaska State Legislature
Juneau, Alaska
POSITION STATEMENT: Presented SSHB 273 on behalf of the
sponsor, Representative McGuire.
TRACEY L. KNUTSON, Attorney at Law
Sisson & Knutson, PC
Anchorage, Alaska
POSITION STATEMENT: During discussion of SSHB 273, answered
questions.
MYRA CASEY, Field Administrator
Central Office
Office of Children's Services (OCS)
Department of Health and Social Services (DHSS)
Juneau, Alaska
POSITION STATEMENT: During discussion of SSHB 273, explained
the term "surrogate parent."
ACTION NARRATIVE
TAPE 04-44, SIDE A
Number 0001
CHAIR LESIL McGUIRE called the House Judiciary Standing
Committee meeting to order at 1:10 p.m. Representatives
McGuire, Holm, Ogg, Samuels, Gara, and Gruenberg were present at
the call to order. Representative Anderson arrived as the
meeting was in progress.
HB 534 - EXTEND OFFICE OF VICTIMS RIGHTS
Number 0052
CHAIR McGUIRE announced that the first order of business would
be HOUSE BILL NO. 534, "An Act extending the termination date of
the office of victims' rights."
Number 0093
REPRESENTATIVE SAMUELS, as chair of the Joint Committee on
Legislative Budget and Audit, sponsor of HB 534, explained that
this legislation is a simple sunset extension of the Office of
Victims' Rights (OVR). Representative Samuels pointed out that
this is being [addressed] a bit early because sometimes the OVR
is taking cases that can last several years. Therefore, the
desire is to ensure that the OVR can, in good conscience, still
take the case without the sunset [becoming a problem]. This
legislation was based on the statute pertaining to the Office of
the Ombudsman. Although the Office of the Ombudsman doesn't
have a sunset date, Representative Samuels opined that the OVR
is new enough that he wanted to [maintain some oversight] with
regard to the office's effectiveness and work. He pointed out
that the committee packet should contain the annual report of
the OVR.
Number 0167
STEPHEN BRANCHFLOWER, Director, Office of Victims' Rights (OVR),
Alaska State Legislature, offered his belief that since the
creation of the OVR, it has implemented [its purpose] to the
substantial benefit of crime victims in Alaska. He informed the
committee that the OVR has been staffed with experienced
attorneys and support staff. Furthermore, the things necessary
to create a viable agency, such as negotiating a long-term lease
and establishing office and case management systems, have been
done. As of today, 376 victims have been served. Mr.
Branchflower turned to the OVR's annual report, and highlighted
that the OVR has performed extensive community training and
outreach. He also highlighted that the OVR has created an
informational brochure of which approximately 15,000 copies have
been distributed. Mr. Branchflower pointed out that if HB 348
becomes law, it includes money to print another 100,000
informational brochures for distribution.
MR. BRANCHFLOWER noted that in cooperation with the Legislative
Information Office, a very user-friendly web site has been
created. This web site includes an extensive explanation about
the OVR and victims' rights, a glossary of frequently used
terms, an outline of a typical criminal case, and an on-line
complaint form. The aforementioned complaint form is very
beneficial, especially to victims in the Bush. Furthermore, the
OVR has drafted regulations and those are on the verge of being
sent to the Office of the Governor for approval.
MR. BRANCHFLOWER concluded by requesting that the sunset date be
extended because he believes the OVR has demonstrated its value
to victims in Alaska. Moreover, the OVR has developed a
cooperative relationship with a number of victims' support
organizations, including police and prosecutors. He, too, noted
that there are some cases that will likely extend beyond the
July 2006 [sunset date], adding that one of the cases will
almost certainly go to the Alaska Supreme Court. Page 16 of the
annual report discusses the aforementioned case. Mr.
Branchflower urged the committee to report HB 534 from
committee.
Number 0469
REPRESENTATIVE GRUENBERG inquired as to why a four-year
extension was chosen.
REPRESENTATIVE SAMUELS answered, "Short enough where you can
still have a little bit of a leash on it, and long enough where
you're not doing this again in another two years." He indicated
that [the length of a sunset] is a rather arbitrary number.
REPRESENTATIVE GRUENBERG relayed that many boards and
commissions seem to [sunset] about every four years. He
recalled that the sunset concept became popular during the
1970s. However, many of these boards and commissions are fairly
well established. Representative Gruenberg opined that a lot of
legislative time is spent reviewing various boards and
commissions. Although he said he didn't have a problem with the
aforementioned, he suggested that this may be a point at which
the legislature may need to determine how to spend its time.
Therefore, he suggested a bit longer length for the sunset of
these organizations.
REPRESENTATIVE SAMUELS characterized Representative Gruenberg's
comments as a "good point." He informed the committee that
currently, the auditor is trying to stagger the [sunset of] all
boards and commissions, but many are coming due at once and
overwhelming the audit staff. The aforementioned results in the
legislative audits requested by members of the legislature being
pushed to the bottom. Representative Samuels clarified that
there is no audit due for the OVR, and therefore won't take up
the auditor's time. He noted that one option is to repeal the
sunset; however, he said he believes that the OVR is a new
office that should be on a "shorter leash."
REPRESENTATIVE GRUENBERG inquired as to the possibility of
having an audit for the OVR, just like every other board.
REPRESENTATIVE SAMUELS noted that an [audit] request could be
made. However, he expressed the need to wait a couple years and
let the OVR be in existence and "get its feet wet."
REPRESENTATIVE GRUENBERG asked if other legislative boards have
a statutory requirement for a legislative audit.
Number 0710
KARLA SCHOFIELD, Deputy Director, Accounting, Legislative
Administrative Services, Legislative Affairs Agency, relayed
that the OVR is part of the legislative branch, which has an
annual financial audit. Usually, the Legislative Audit Division
doesn't audit [entities] in the legislative branch.
REPRESENTATIVE GRUENBERG pointed out that the other audits are
more programmatic, although they do deal with financial aspects.
He said that he finds the audits for the other boards and
commissions extremely helpful. Therefore, he expressed the
desire to have an audit for the OVR. He asked if there is a
reason not to do so.
REPRESENTATIVE SAMUELS reiterated his desire to wait a year.
REPRESENTATIVE GRUENBERG specified that he would [want] an audit
to occur in 2010 when the OVR sunsets. He indicated that
[boards and commissions] usually have an audit when they expire.
REPRESENTATIVE SAMUELS pointed out that the Office of the
Ombudsman doesn't have "one at all." He noted that the choice
to him was in regard to putting a [sunset] date on the OVR or
not.
REPRESENTATIVE GRUENBERG opined that it's [appropriate] to have
a sunset.
REPRESENTATIVE OGG raised a point of order, relating that he
would be happy to hear an amendment [if that is desired].
REPRESENTATIVE GRUENBERG clarified that this is a discussion to
determine whether he wanted to offer an amendment, and whether
it requires a statutory amendment.
REPRESENTATIVE SAMUELS reiterated that if an audit is desired
later, it can be requested through the Joint Committee on
Legislative Budget and Audit.
REPRESENTATIVE GRUENBERG asked if the audits for all the other
boards and commissions occur upon request of the Joint Committee
on Legislative Budget and Audit or is it due to a statutory
requirement.
REPRESENTATIVE SAMUELS answered that the audits occur
automatically upon the sunset date of the entity. He said he
assumes that the audit occurs due to a statutory requirement.
If, upon sunset, a [board or commission] doesn't have the audit
for renewal, the board [or commission] goes away.
Number 0905
REPRESENTATIVE GRUENBERG moved that the committee adopt a
conceptual amendment such that the same statutory requirement
for [the other boards and commissions] be implemented for the
OVR.
REPRESENTATIVE SAMUELS objected. He explained that if the
financial audit is already occurring, he didn't want to place
the burden [on the Legislative Audit Division] to perform
something that's already being done. He reiterated that if
someone wants an audit, that can be requested and the auditor
and the Legislative Affairs Agency can be contacted with regard
to what is being sought in the audit. He highlighted that the
financial audit is already being done, as is the report.
REPRESENTATIVE GRUENBERG explained that he wanted the same type
of programmatic audit that is in place for all the other [boards
or commissions].
REPRESENTATIVE SAMUELS pointed out that the other boards don't
provide an annual report. He reiterated that the OVR is more
closely aligned with the Office of the Ombudsman.
REPRESENTATIVE GRUENBERG commented that he views a self-report
as a bit different than an audit, which is performed by an
independent agency. Representative Gruenberg said he is willing
to withdraw the amendment, although he believes an independent
audit is helpful.
REPRESENTATIVE SAMUELS stated that if Representative Gruenberg
requests an audit, "we'll push it forward."
REPRESENTATIVE GRUENBERG withdrew the conceptual amendment.
Number 1027
REPRESENTATIVE SAMUELS moved to report HB 534 out of committee
with individual recommendations and the accompanying zero fiscal
note. There being no objection, it was so ordered.
HB 472 - CLAIMS AGAINST HEALTH CARE PROVIDERS
Number 1038
CHAIR McGUIRE announced that the next order of business would be
HOUSE BILL NO. 472, "An Act relating to claims for personal
injury or wrongful death against health care providers; and
providing for an effective date."
CHAIR McGUIRE noted that [the committee packet] includes a
proposed committee substitute as well as two amendments. Chair
McGuire opined that the committee has had a lot of good language
on the record with regard to the intent of HB 472 and the
amendments made to it thus far.
Number 1194
REPRESENTATIVE GRUENBERG moved to adopt the proposed committee
substitute (CS) for HB 472, Version 23-LS1743\D, Bullock,
3/22/04, as the work draft. There being no objection, Version D
was before the committee.
Number 1215
REPRESENTATIVE HOLM moved that the committee adopt Amendment 1,
which read [original punctuation provided]:
Page 2, Line 22, following "death.":
Insert "The limits on damages in this subsection do
not apply if the personal injury or wrongful death was
the result of reckless or intentional misconduct."
Page 2, Line 25, following "judgment":
Insert "unless the personal injury or wrongful death
was the result of reckless or intentional misconduct"
REPRESENTATIVE HOLM said that he didn't want this legislation to
be a vehicle that would allow reckless conduct. He offered his
understanding that the standard should be clear and convincing
evidence, not just negligence, because it "only takes 51
percent" to make negligence the charge.
Number 1233
REPRESENTATIVE ANDERSON objected. He requested that Roger
Holmes comment on Amendment 1.
Number 1277
ROGER F. HOLMES, Attorney at Law, Biss & Holmes, said:
If the amendment read that ... the limits on damages
do not apply in instances where the jury has made a
finding by clear and convincing evidence that the
conduct was outrageous, including acts done with
malice or bad motives or evidenced reckless
indifference to the interest of another person, then
it would follow that the punitive damage statute would
be compatible and would be easy for the judge and the
jury to ... apply the same standard in the same case.
REPRESENTATIVE HOLM stated that the above is his intention.
CHAIR McGUIRE asked if Representative Holm wanted to
conceptually amend Amendment 1 to that effect.
REPRESENTATIVE HOLM replied yes.
CHAIR McGUIRE clarified, "So, ... it's clear and convincing
evidence and it's acts that are outrageous, or done with malice
or bad motive, evidenced reckless indifference to another
person."
REPRESENTATIVE ANDERSON surmised, then, that the punitive damage
standard would be in place.
CHAIR McGUIRE further clarified that the standard will be
applied to punitive damages as well as noneconomic damages.
[Amendment 1 was treated as amended.]
REPRESENTATIVE ANDERSON withdrew his objection.
Number 1392
REPRESENTATIVE GARA objected and suggested [a second] amendment
to Amendment 1 [as amended] such that the term "gross
negligence" is included.
REPRESENTATIVE GARA explained that if the only way to recover
more than $250,000 in damages from loss of enjoyment of life is
by clear and convincing evidence of recklessness or malice, then
the committee would be adopting a standard that has never been
met before in a medical malpractice case in this state. He
opined that there has never been a finding of the punitive
damages standard in Alaska, and he further opined that there has
never been a finding of punitive damages in a medical
malpractice case in this state. Therefore, [with the adoption
of this amendment], the only serious injuries that will be
granted more than $250,000 in noneconomic damages are ones in
which a physician has engaged in malice, or a condition in which
a physician recklessly disregards his or her duties. The
aforementioned will result in the $250,000 cap being imposed in
a case in which someone is brain injured, severely handicapped,
severely paralyzed, or totally paralyzed. Such situations would
occur when the physician has violated the duty to act with
reasonable care.
REPRESENTATIVE GARA explained that [a medical professional]
isn't found negligent in a medical malpractice case in Alaska
unless a physician has failed to adhere to the standard of care
exercised by other physicians in the community. In those cases
in which a physician has performed negligently, injured the
patient, and hasn't adhered to the standard of care adhered to
by other physicians in the community, [the legislation] only
allows recovery of $250,000 in noneconomic damages. If the
aforementioned is to be the case, Representative Gara said that
he preferred Representative Ogg's amendment, which specifies
that the cap doesn't apply in cases of recklessness or malice.
He reiterated his desire to remove the cap in cases of gross
negligence, which is a high standard itself. Representative
Gara said that he didn't want a physician performing work on
members of the community when the physician doesn't adhere to
the standard of care of other physicians, which is the
negligence standard.
Number 1548
REPRESENTATIVE GARA moved that the committee adopt [a second]
amendment to Amendment 1 [as amended], such that the language
"grossly negligent" would be added.
REPRESENTATIVE OGG objected. Representative Ogg asked Mr.
Holmes if the difference between negligence and gross negligence
is easily defined. He asked if the clear and convincing
standard for gross negligence is enough "to clarify the
difference or clarify that you really have to get into this
higher category; that's what we're trying to do here, I
believe."
MR. HOLMES answered that the difference between negligence and
gross negligence is difficult to define, which is why the 1997
legislature adopted the language it did for punitive damages.
He explained that the problem is that there would be three
separate standards: one for negligence; one for punitive
damages; and one for when the cap doesn't apply. The
aforementioned, he further explained, builds in the chance of
error in every case that goes to the jury. The reason to make
the exception to the cap match the punitive damage standard is
that then there would clearly be two standards that would be
given to the jury. Conceptually, Mr. Holmes said he had no
problem with Representative Gara's comments with regard to gross
negligence as opposed to the punitive damage standard. However,
in order to accomplish what Representative Gara wants, the
legislation would require the jury to apply three separate
standards. He noted that it's already difficult for the jury to
apply two.
REPRESENTATIVE OGG inquired as to defining the difference
between reckless disregard, reckless indifference, and gross
negligence.
MR. HOLMES opined that most jurors that would find something
that was grossly negligent would also find something that was
reckless. He offered his opinion that a physician who operates
while intoxicated would be grossly negligent and he opined that
most jurors wouldn't have a problem with the [finding] that this
is reckless indifference to the interests of the patient. Mr.
Holmes said he believes the definition of gross negligence is so
close to reckless indifference that having three different
standards in each case invites error and confusion. He remarked
that although he did believe there is a slight difference
between gross negligence and reckless [indifference], the
difference is probably less than there is between gross
negligence and ordinary negligence.
REPRESENTATIVE OGG said that that was his intent, to separate
[gross negligence and reckless indifference], in having made his
amendment at a previous meeting. Representative Ogg indicated
that [gross negligence and reckless indifference] is the type of
action [this legislation] wants to avoid, although the language
"reckless indifference" is used. "Because we have to have only
two standards to clarify it, then I'm comfortable with that as
long ... [as] somebody can come and look at this and say, 'We're
not going after just the negligent person; we're going after
that higher [standard] and we don't want those people
protected,'" he explained.
Number 1759
CHAIR McGUIRE informed the committee that in Alaska, reckless
[indifference] has been interpreted as "a conscious disregard of
a known risk" while Black's Law dictionary defines gross
negligence as "the intentional failure to perform a manifest
duty in reckless disregard of the consequences." Therefore, she
opined, the two are almost identical [definitions].
REPRESENTATIVE ANDERSON offered his understanding that Mr.
Holmes is acknowledging that there is a difference [between
reckless indifference and gross negligence].
MR. HOLMES reiterated that if the gross negligence standard is
added, then the juror is being asked to apply three separate
standards. However, he opined, the difference between reckless
[indifference] and gross [negligence] is so small that the
benefit [of listing both] doesn't outweigh the risk of
confusion.
REPRESENTATIVE GARA said he isn't convinced that the jury would
be so confused. In many cases, especially in criminal cases,
the jury receives instructions on 10-15 different counts. The
courts maintain clarity by providing a separate instruction on
each issue. Normally, a packet of jury instructions could
contain 20-50 instructions or even more. Representative Gara
offered his understanding that there is already a patterned jury
instruction for gross negligence, and asked if that is true.
MR. HOLMES replied, "Not since '97 when ... the punitive damage
statute was amended."
REPRESENTATIVE GARA recalled seeing jury instructions for gross
negligence. Therefore, he asked if that is because gross
negligence is defined in the criminal statutes.
MR. HOLMES explained that gross negligence has been the punitive
damage standard for years. He noted that there are several
supreme court opinions that discuss what it took to reach gross
negligence and what it meant, although those are no longer in
effect. Mr. Holmes recalled that many of those decisions were
authored by Justice Robert L. Eastaugh of the Alaska Supreme
Court, and the term "gross negligence" was defined as reckless
indifference. In the supreme court opinions, the term
"recklessness" was used in defining gross negligence.
REPRESENTATIVE GARA offered his belief that the term "gross
negligence" is defined in the statutes because that standard is
used in many criminal cases. He inquired as to Mr. Holmes'
understanding.
MR. HOLMES said he can't answer that question.
REPRESENTATIVE GARA returned to the [second] amendment to
Amendment 1 [as amended]. He remarked that if the reckless
standard is adopted, the standard will almost never result in
someone getting more than the $250,000 damages cap. Therefore,
he said the [committee] might as well just adopt the $250,000
damages cap. Representative Gara highlighted his belief in the
importance of preserving the rights of people who have been
terribly injured by conduct that simply falls to the standard of
not exercising the same care that other physician's in the
community exercise.
CHAIR McGUIRE noted that the objection to the [second] amendment
to Amendment 1 [as amended] is maintained.
Number 1964
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of the [second] amendment to Amendment 1 [as
amended]. Representatives Ogg, Samuels, Holm, Anderson, and
McGuire voted against it. Therefore, the second amendment to
Amendment 1 [as amended] failed by a vote of 2-5.
CHAIR McGUIRE announced that Amendment 1 [as amended] was
before the committee. Chair McGuire, upon determining there
were no further objections, announced that Amendment 1 [as
amended] was adopted.
Number 1989
REPRESENTATIVE GARA moved that the committee adopt Amendment 2,
labeled 23-LS1743\A.6, Bullock, 3/22/04,which read:
Page 2, line 19, following $250,000:
Insert ", except that the limit on damages is
$1,000,000 if it is shown, by clear and convincing
evidence, that the injury is a serious debilitating
physical injury or disfigurement. Each limit applies"
Page 2, line 25:
Delete "$250,000"
Insert "the limit in (d) of this section"
Number 1992
REPRESENTATIVE ANDERSON objected.
REPRESENTATIVE GARA recalled that there was a concern with
regard to the dual cap, that is a higher cap for those with
serious debilitating injuries and a lower cap for those who
don't have serious debilitating injuries or disfigurement. He
recalled that Representative Holm inquired as to what can be
done to ensure that those with marginal claims of serious
disfigurement or serious debilitating injury proceed with their
claims. The aforementioned has been accomplished in the law by
specifying that in those circumstances, the evidence is required
to be proven by clear and convincing evidence, which will weed
out the marginal claims.
REPRESENTATIVE GARA offered his understanding that clear and
convincing evidence is defined in case law as follows: "clear
and convincing evidence means and is that amount of evidence
which produces in the trier of fact a firm belief or conviction
about the existence of a fact to be proved." Representative
Gara noted that sometimes the court will tell jurors that the
evidence has to be much higher than a preponderance of the
evidence but not as high as proof beyond a reasonable doubt.
"It's a high level of evidence, it's used in the punitive
damages statute ... and that's why punitive damages are so
rarely granted," he said. Furthermore, [clear and convincing
evidence] is a good bar to [avoid] marginal claims.
REPRESENTATIVE GARA pointed out that although the committee at a
prior meeting adopted the $1 million cap, the term "clear and
convincing evidence" wasn't included. He explained that he has
been convinced that in order to make the system more predictable
so that we know the higher cap is only to be applied to those
with valid claims, the term "clear and convincing evidence"
should be included in the dual cap structure. He reminded the
committee that the $250,000 cap works out to about $13.59 a day
for the value of one's enjoyment of life and pain and suffering,
which Representative Gara opined isn't right.
REPRESENTATIVE GARA recalled that Representative Anderson has
said that it wouldn't really be $13.59 a day because that money
can be placed in an annuity. However, he opined, the truth is
that one-third of a $250,000 award would go to pay taxes, one-
third would pay for attorney fees, and anyone other than a rich
person wouldn't be able to place the remaining funds into an 30-
year annuity. Representative Gara emphasized that $13.59 a day
for someone suffering from a brain injury due to medical care
that falls below the standard of care of other physicians in the
community is too low. He remarked that although physicians
don't agree with Amendment 2, it provides two levels of
certainty that physicians have requested. That certainty is in
the form of the $1 million hard cap with a lower cap of
$250,000. Currently, there is a soft cap of [$400,000] and $1
million, which might turn out to be [$800,000] and $2 million.
"So we're coming down to hard caps: $250,000 and [$1] million,
and we're only extending it to very limited cases of serious
injury that is validly provable with clear and convincing
evidence," he explained. Representative Gara requested the
committee's support of Amendment 2.
Number 2133
REPRESENTATIVE GRUENBERG moved that the committee adopt an
amendment to Amendment 2 adding the following language: "or if
the defendant acts with criminal negligence as defined in [AS
04.21.080(a)(1)]", after the word "disfigurement" in Amendment
2. He informed the committee that [the language he is
suggesting adding to Amendment 2] is a long-standing definition
in the alcoholic beverages title that reads:
a person acts with "criminal negligence" with respect
to a result or to a circumstance described by a
provision of law defining an offense when the person
fails to perceive a substantial and unjustifiable risk
that the result will occur or that the circumstance
exists; the risk must be of such a nature and degree
that the failure to perceive it constitutes a gross
deviation from the standard of care that a reasonable
person would observe in the situation;
REPRESENTATIVE GARA said that he accepts the amendment to
Amendment 2. However, he pointed out that physicians benefit
from a much stricter standard of negligence than do others.
Therefore, in order to be fair to the medical community, he
suggested inserting the language "to [a] reasonable medical
practitioner in the area".
REPRESENTATIVE GRUENBERG suggested also inserting the language
", except that the term 'reasonable person' shall be reasonable
medical practitioner in the field".
REPRESENTATIVE GARA said that he accepted the [second] amendment
to Amendment 2.
CHAIR McGUIRE announced that the [amendments] to Amendment 2 are
adopted, adding that Amendment 2, as amended, is now before the
committee.
Number 2257
REPRESENTATIVE ANDERSON maintained his objection. He recalled
Representative Holm's concern that if someone is reckless or
intentionally does something, then that [medical professional]
should be liable and there shouldn't be a cap. Representative
Anderson surmised that Representative Holm saw the caps as the
only way to correct it.
REPRESENTATIVE ANDERSON offered the following analogy: "When
you go out on the street and you ask a senior ... is it more
important for you to have medical care and treatment or to
ensure that out of 10,000 times, the one time when you ... think
there was an egregious act by a doctor, you can get over
$250,000 pain and suffering, ... that senior ... would say, 'I
want medical coverage.'" Representative Anderson said that
[this legislation] brings predictability with the $250,000 cap
and emulates California, which Alaska's courts as well as
federal courts constantly reference. California is a state with
a cap that has been successful and brought in physicians and
recruited physicians, he opined, and said he wants the same for
Alaska, which is why he sponsored HB 472. Increasing the cap
changes that and removes the predictability.
TAPE 04-44, SIDE B
Number 2378
REPRESENTATIVE ANDERSON emphasized that he defers to all the
associations, hospitals, and physicians that have endorsed HB
472, but who [oppose] this amendment and want the legislation to
move from committee to the House floor.
REPRESENTATIVE OGG specified that he is supportive of [Amendment
2] without the amendments. He characterized [the amendments to
Amendment 2] as redundant. Through the discussion, the
committee has decided that those who act intentionally or with
reckless disregard aren't subject to this cap. Therefore,
[amending Amendment 2] is confusing because it has already been
addressed. Representative Ogg opined that he likes the
differentiation in the caps, which he believes provides
predictability. Therefore, Representative Ogg said that he
would have to oppose Amendment 2, as amended.
REPRESENTATIVE GARA recalled that when the amendments to
Amendment 2 were offered, there didn't seem to be any objection.
However, if there is an objection to the [amendments] to
Amendment 2, then he would also withdraw his support.
Therefore, he requested that Representative Gruenberg withdraw
his amendments to Amendment 2.
Number 2235
REPRESENTATIVE GRUENBERG moved that the committee withdraw the
language of the amendments to Amendment 2 such that it would
read as follows [which is identical to the original, unamended
Amendment 2]:
Page 2, line 19, following $250,000:
Insert ", except that the limit on damages is
$1,000,000 if it is shown, by clear and convincing
evidence, that the injury is a serious debilitating
physical injury or disfigurement. Each limit applies"
Page 2, line 25:
Delete "$250,000"
Insert "the limit in (d) of this section"
REPRESENTATIVE HOLM objected.
REPRESENTATIVE ANDERSON asked Chair McGuire not to allow further
amendments to change the limits should this amendment fail,
otherwise, he said, he felt that the chair would be dilatory.
REPRESENTATIVE GARA stated, "If we're going to pass this bill
out of this committee, it should be done without gamesmanship.
Certainly, I understand the Representative's view that if we
kill the amendment with the amendment to the amendment, then
we'll never have to vote on the amendment." Therefore, if the
amendments to Amendment 2 are left in just to kill it, he
announced that he would offer a clean amendment. Representative
Gara opined that it would fair for that to be heard. However,
he suggested that it would be quicker to delete the language
inserted by Representative Gruenberg.
Number 2165
REPRESENTATIVE HOLM withdrew his objection to removing the
language inserted by the [amendments] to Amendment 2.
CHAIR McGUIRE, upon determining that there were no further
objections, announced that the [amendments] to Amendment 2 had
been removed. Therefore, the question of whether to adopt an
unamended Amendment 2, was before the committee.
Number 2147
A roll call vote was taken. Representatives Ogg, Gara, and
Gruenberg voted in favor of Amendment 2. Representatives
Samuels, Holm, Anderson, and McGuire voted against it.
Therefore, Amendment 2 failed by a vote of 3-4.
Number 2106
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 3 [labeled 23-LS1743\A.5, Bullock, 3/16/04, which was
formerly failed Amendment 6 to the original version on 3/19/04],
which read as follows:
Page 2, following line 27:
Insert a new subsection to read:
"(g) The limitation on damages under (d) of this
section shall be adjusted by the administrative
director of the Alaska Court System on October 1 of
each year, calculated to the nearest whole percentage
point between the index for January of that year and
January of the prior year according to the Consumer
Price Index for all urban consumers for the Anchorage
metropolitan area compiled by the Bureau of Labor
Statistics, United States Department of Labor. The
administrative director of the Alaska Court System
shall provide notification of a change in the
limitation of damages to the clerks of court in each
judicial district of the state. The court shall
adjust the award for noneconomic damages under this
subsection and (e) of this section, if necessary,
before the entry of judgment."
The committee took an at-ease from 2:13 p.m. to 2:14 p.m.
Number 2079
REPRESENTATIVE ANDERSON objected.
CHAIR McGUIRE pointed out that these Consumer Price Index (CPI)
amendments are frequently offered. If there could be this type
of certainty with all of the things that each person cares about
in the budget, it would be great. However, that's not the case.
Chair McGuire explained that the legislature, as an
appropriating body, needs the ability to have some sense of
predictability. When a CPI index clause is added into something
that a private individual or a public entity has to pay, a level
of uncertainty is created. Therefore, she suggested that the
appropriate course would be to revisit this in a specified
amount of time. Chair McGuire turned to the issue of a
certificate of need. She noted that the $1 million limit put
into effect in the 1970s is no longer applicable because the CPI
would place it closer to $2 million. She indicated that she
didn't support Amendment 3.
REPRESENTATIVE GRUENBERG specified that he has reoffered this
amendment because two of the members of the committee weren't
present when it was initially offered, and more importantly, the
legislation now includes caps again. He turned to Chair
McGuire's comments, and remarked that there is a difference
between putting this into a budget or a public-funding type of
thing because those are the kinds of legislation that the
legislature is involved with on an annual basis. However,
medical malpractice is not [reviewed by the legislature every
year].
REPRESENTATIVE GRUENBERG stated that medical malpractice is a
very divisive issue, albeit not a common issue. If limits in
this area have to be changed, the arguments are in regard to the
impacts of raising the limits on the availability of health
insurance and the number of physicians and other health care
professionals to practice in the state. On the other hand, an
automatic adjustment for cost of living is something that
insurance companies deal with frequently. Furthermore, it's a
measure of certainty because actuaries and economists are
accustomed to dealing with it. "It does not require that we re-
open the entire issue of medical malpractice and get the
legislature embroiled in this," he explained. This amendment
attempts to provide an area of certainty so that [the
legislature] doesn't have to go through the "medical malpractice
trauma" every few years.
Number 1850
REPRESENTATIVE OGG agreed that there is a difference between the
annual budget and funding and including the CPI. He recalled
that the [CPI] was put "into labor" with regard to those who
[pay] minimum wage. Very shortly, the argument was that the
unforeseen cost [of the CPI] was putting some folks out of
business. Representative Ogg turned to criminal fines, and
pointed out that those are set and then revisited at some point
when the pressure rises. He recalled recent [legislation] in
which the limit for small claims court was decided and the CPI
wasn't put in place for it. Representative Ogg acknowledged
that insurance companies want certainty, and highlighted that
currently, the legislature is wrestling with a change in an
actuarial status on mortality such that the Public Employees'
Retirement System (PERS) and Teachers' Retirement System (TRS)
programs have become one of the larger difficulties in the
state's fiscal problems.
REPRESENTATIVE OGG indicated that he would prefer to leave [the
legislation] as it is and when times and the economy have
changed, the legislature at the time could address it. He
acknowledged that the arguments [made by Representative
Gruenberg] will come up and he indicated that those are the
proper arguments to be visited each time this comes up rather
than being addressed by a standard that's out of the
legislature's hands. Representative Ogg expressed his desire
for the legislature to not foreclose its ability to deal with
these issues on behalf of the public. Therefore, Representative
Ogg announced that he wouldn't support Amendment 3.
Number 1663
REPRESENTATIVE GARA commented that in the context of those
debates, the legislature has never done anything as severe as
what is being done today. In the case of fines, the minimum
wage, and other limits, the legislature has developed numbers
that are within a broad range of something that is fair.
However, [this legislation] values a human life at $250,000. He
said he didn't believe anyone on the committee believes that
$250,000 is a fair value of someone's ability to hold a child,
kiss a spouse, walk, hike, and fish. "I think what we're doing
is, the policy judgment on this committee has been that the
insurance industry needs this -- the insurance industry needs us
to take these rights away from human beings.
REPRESENTATIVE GARA opined that because nobody says that this is
a fair amount of money to give to people, not adopting the CPI
adds insult to injury because it means that today the
aforementioned life attributes are worth $13.69 a day, and those
will be worth less each year thereafter. "So, I think the CPI
argument becomes much more forceful in a case where we're
already inadequately compensating somebody," he remarked. He
concluded by announcing that he would vote for Amendment 3.
CHAIR McGUIRE thanked Representative Ogg for his comments. She
highlighted that it's important to consider that sometimes
something could be used as a method of achieving a goal that
wasn't achieved through the regular process, which is similar to
what happened with the minimum wage. Chair McGuire encouraged
the committee to look at the [addition of the CPI] on its merits
versus using it to reach another policy goal. She pointed out
that business license fees were $25 for almost 20 years without
the CPI, which certainly would've been a benefit for the state
and a potential hardship to businesses. Finally, there was
debate on that last year and the successful argument was that
the business license fee hadn't been altered in some time. She
noted her expectation that such arguments will be made about
this legislation some time in the future.
REPRESENTATIVE ANDERSON maintained his objection.
Number 1553
A roll call vote was taken. Representatives Gara and Gruenberg
voted in favor of Amendment 3 [labeled 23-LS1743\A.5, Bullock,
3/16/04]. Representatives Ogg, Samuels, Holm, Anderson, and
McGuire voted against it. Therefore, Amendment 3 failed by a
vote of 2-5.
Number 1520
REPRESENTATIVE ANDERSON moved to report the proposed CS for HB
472, Version 23-LS1743\D, Bullock, 3/22/04, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal notes.
Number 1509
REPRESENTATIVE GARA objected.
REPRESENTATIVE GRUENBERG noted that he can't support the
legislation, but reminded the committee that he'd agreed at a
prior meeting that he wouldn't object to moving it.
Number 1455
A roll call vote was taken. Representatives Ogg, Samuels, Holm,
Anderson, and McGuire voted in favor of reporting the proposed
CS for HB 472, Version 23-LS1743\D, Bullock, 3/22/04, as
amended. Representative Gara voted against it. Representative
Gruenberg abstained from voting but wished his presence to be
noted for the record. Therefore, CSHB 472(JUD) was reported out
of the House Judiciary Standing Committee by a vote of 5-1-1.
HB 273 - PARENTS' WAIVER OF CHILD'S SPORTS CLAIM
Number 1424
CHAIR McGUIRE announced that the final order of business would
be SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 273, "An Act relating
to the right of a parent to waive a child's claim of negligence
against a provider of sports or recreational activities."
The committee took an at-ease from 2:24 p.m. to 2:25 p.m.
Number 1402
VANESSA TONDINI, Staff to Representative Lesil McGuire, House
Judiciary Standing Committee, Alaska State Legislature,
explained, on behalf of the sponsor, Representative McGuire,
that SSHB 273 gives legal effect to release waivers and
permission slips, such as those giving a child the ability to
participate in some activity.
Number 1351
REPRESENTATIVE HOLM moved to adopt the proposed committee
substitute (CS) for SSHB 273, Version 23-LS0966\I, Bullock,
3/19/04, as the work draft.
REPRESENTATIVE GRUENBERG objected, but ultimately removed his
objection once it was clarified that Ms. Tondini was going to
explain [Version I].
CHAIR McGUIRE announced that Version I was before the committee.
MS. TONDINI paraphrased from the sponsor statement, which read
[original punctuation provided]:
Children in the State of Alaska should enjoy the
maximum opportunity to participate in sports or
recreational activities, despite the presence of risk
in such activities. Public, private, and nonprofit
entities that provide sports or recreational
activities to children need and deserve a measure of
protection against lawsuits, and without that measure
of protection, may be unwilling or unable to provide
such activities. Parents have a fundamental right and
responsibility to make decisions concerning the care,
custody, and control of their children. The law has
long presumed that parents are in the best position to
determine what is in the best interests of their
children. Parents are accustomed to making conscious
choices on behalf of their children every day
regarding the benefits and risks of various activities
available to their children. Such parental choices,
when made voluntarily upon consideration of
appropriate information, should not be ignored, but
rather should be afforded the same dignity and legal
effect as other parental choices, including choices
regarding education and medical treatment. SSHB 273
furthers these truisms and encourages the availability
and affordability of sports and recreational
activities to children by recognizing the right of a
parent to choose to release, on behalf of his or her
child, prospective negligence based claims that the
child may accrue against the provider of such
activities.
As a result of a recent Colorado Supreme Court case,
Cooper v. Aspen Skiing Co., wherein the Court refused
to uphold or recognize the mother of a seventeen year
old skier's signature on a release document used in a
juvenile race camp program, the outdoor industry has
been trying to respond to the myriad problems and
potentially severe ramifications created by this
holding. The faulty rationale behind Colorado and
other western states' decisions has been the legal
premise that, since a minor is not capable of
releasing his or her own rights to sue because a minor
is not legally competent to contract and release
documents that are contractual in nature, that a
parent should not be capable of releasing on behalf of
the minor child.
This erroneous rationale is contrary to a body of
authority derived from Midwestern and Eastern states,
which find that parents do specifically have the
legally binding right to sign release documents on
behalf of their minor children. In these states, the
courts have articulately stated that prohibiting a
parent's right to release or waive on behalf of a
minor child would detrimentally chill school,
scouting, athletic, and similar type programs from
being able to offer athletic, recreational, and other
extra-curricular programs. There exists a well-
settled legal history of recognizing parental rights
regarding making decisions on behalf of minor children
regarding education and medical treatment. To not
extend the same logic to recreational activities in
Alaska would be legally illogical and unfair.
The practical consequences of not recognizing this
parental authority are profound. If an outdoor
recreation company is found to have been operating
without a valid release/waiver document, either
insurance coverage will not be offered or will be
voided. Very few programs will stay in business
without proper insurance in place. As an outdoor
recreation-oriented and supported state, Alaska simply
cannot stand by and watch this type of result. The
Alaska Supreme Court has gone in the direction of
requiring pre recreational release/waiver documents to
be clearly and unambiguously drafted and has expressed
concerns over the specificity of the language used in
those documents. Given the Court's careful focus on
this subject, along with the developing line of
authority in the western states, it is important that
the legislature address this matter before the court
system is called upon to rule on whether it is legal
for a parent or legal guardian to sign a release
document on behalf of a minor child.
In addition, it is important to note that HB 273 would
not defeat in any way a parent or guardian's right to
sue an operator that is not providing a safe service
or program. An ordinary release/waiver document
provides only a release to causes of action sounding
in negligence. Claims of gross negligence, reckless,
or intentional misconduct are never released in a
release/waiver document. It is also crucial to
remember that, with respect to pre-recreation
releases, these documents regard activities that are
totally voluntary in nature; they are activities that
regard personal choice for the participant. As such,
participants and parents of participants should have
the freedom to decide which sports or recreational
activities they want to participate in or that they
want to have their children participate in and should
have the freedom to contract regarding these
activities. That fundamental right to make choices
regarding a child's activities is what is being
protected here; the bill does not negate a parent's
rights, it in fact strengthens them.
Number 1011
MS. TONDINI concluded by requesting the committee's support of
this legislation. In response to Chair McGuire, Ms. Tondini
informed the committee that Version I incorporates some changes
suggested by the Office of Children's Services (OCS) in the
Department of Health and Social Services (DHSS). On page 3,
lines 1 and 7-8, subparagraph (B) was changed and subparagraph
(E) was added so that a representative of the DHSS will be the
representative of a child in the state's legal custody.
REPRESENTATIVE SAMUELS asked if a young person under the age of
18 needs a parent to be present in order to rent skis.
Number 0825
TRACEY L. KNUTSON, Attorney at Law, Sisson & Knutson, PC,
answered that it depends upon the particular operator's habits,
policies, and procedures. For instance, the Alyeska Resort
requires that a child or someone underage have a parent sign the
[waiver] document. However, she noted, a less well-prepared
recreational provider might not require [the above]. Ms.
Knutson opined that very few recreational providers, whether
those offering rentals or services and programs, allow children
to sign their own release. Ms. Knutson highlighted that
children don't have the legal capacity under the law to sign a
[waiver] contract and policy documents are contractual in
nature.
REPRESENTATIVE GRUENBERG turned attention to page 3, lines 9-10,
which refers to AS 09.65.290, and pointed out that subsection
(e)(2) specifies: "(2) 'provider' means a person or a federal,
state, or municipal agency that promotes, offers, or conducts a
sports or recreational activity, whether for pay or otherwise;".
However, he remarked, AS 09.65.290(e)(3)(B)(iii) says that it
doesn't include "skiing or sliding activities at a ski area that
are subject to the requirements of AS 05.45". He inquired as to
the types of skiing or sliding activities that would be
excluded.
MS. KNUTSON reminded the committee that the legislature passed
the "Ski Area Safety Act of 1994" a number of years ago. As a
result of that Act, ski areas don't use written release
documents; rather, an individual purchases a ticket which
specifies the inherent risks [or the activity]. Therefore, the
issue of a release doesn't really apply to a ski area. However,
the smaller groups that operate around a ski area, such as the
Mighty Mites, do use written release documents. The
aforementioned is the reason why ski areas weren't included in
the inherent-risk legislation that came before the legislature
last year.
REPRESENTATIVE GRUENBERG then turned attention to page 3, line
6, which refers to AS 14.30.325. The aforementioned statute
allows the Department of Education and Early Development to
appoint a surrogate parent to represent disabled children in
matters relating to "an appropriate public education". This
doesn't seem to fall within that type of activity, and therefore
he questioned whether a surrogate parent would be involved with
this unless the [recreational] activity is done through the
school. Representative Gruenberg said he foresees a potential
conflict between the child's natural parent and the surrogate
parent and the person, under a power of attorney, with whom the
child may be living. He inquired as to how to resolve such a
conflict.
MS. KNUTSON noted that the aforementioned was of concern when
the legislation was drafted. She explained that the intent is
to create a reasonably complete list of those who would have the
ability to sign release/waiver documents. Although she agreed
that there may be situations in which there is a natural parent
and someone operating under a power of attorney for the same
child, it wouldn't be up to the operator to determine who is
capable of signing [the release/waiver documents].
CHAIR McGUIRE suggested that the language in question be
removed, noting that the representative from the OCS agrees that
it presents a conflict.
Number 0257
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 1, which would, on page 3, delete lines 5-6.
REPRESENTATIVE OGG surmised that the legislation provides a list
[of who is a parent] and it seems that these individuals have
different jobs concerning a child. Therefore, if [Amendment 1
is adopted] and a child wants to engage in school activities,
there is no one to sign for that child in the case in which the
child has been assigned a surrogate parent.
REPRESENTATIVE GRUENBERG commented that this is just one
possible factual situation. He requested that Amendment 1 be
tabled. There being no objection, it was so ordered.
REPRESENTATIVE GRUENBERG highlighted that it needs to be clear
that this [legislation] only applies to unemancipated minors.
Number 0158
REPRESENTATIVE GRUENBERG moved that the committee adopt
Amendment 2, as follows:
Page 2, line 22, after "parent's";
Insert "unemancipated"
Page 2, line 26;
Delete "a"
Insert "an unemancipated"
REPRESENTATIVE OGG asked if a parent has the right to act on
behalf of an emancipated child.
REPRESENTATIVE GRUENBERG replied no, and stated that [Amendment
2] would make it clear.
Number 0008
CHAIR McGUIRE, upon determining that there were no objections,
announced that Amendment 2 was adopted.
REPRESENTATIVE GRUENBERG remarked that he could see parents
warring over this. He noted that such a conflict wouldn't arise
before the child engages in football and breaks his or her neck,
but would arise afterwards.
TAPE 04-45, SIDE A
Number 0001
REPRESENTATIVE GRUENBERG restated his concern with regard to the
possibility of a situation in which there is a conflict when [a
child has two individuals classified as a parent under the
definitions of this legislation]. He remarked that perhaps he
is making a mountain out of a molehill.
REPRESENTATIVE SAMUELS said that subparagraph (C) on page 3,
lines 2-4, seems to be a bit of a catchall, which he didn't see
as necessarily a bad thing. He offered his understanding that
under subparagraph (C), he, as the person responsible for a
group of children going rafting, could sign the waiver for [all
the children].
MS. KNUTSON informed the committee that she practices almost
exclusively in recreation law. What [the language in the bill]
attempts to get at is anyone who is legally responsible for a
child. Although Ms. Knutson agreed that [subparagraph (C)] is
sort of a catchall, she clarified that it isn't meant to include
a situation in which a neighbor signs a waiver for the child
next door. The neighbor wouldn't have the legal right to do the
aforementioned because he or she wouldn't have legal
responsibility for that child. In such a case, the operator
would need [the waiver/release document to be signed] by a
person who has a legal responsibility for the child.
REPRESENTATIVE GRUENBERG suggested, then, that [those points]
should be clearly stated in the bill, otherwise there will be
some legal problems.
MS. KNUTSON suggested that perhaps the language in subparagraph
(C) should read: "a person who has the legal capacity to act in
the place of the child or adoptive parent".
Number 0341
CHAIR McGUIRE announced that Conceptual Amendment 3 would [on
page 3, line 2, insert the following language] "a person who has
the legal capacity to act in the child's welfare".
REPRESENTATIVE GRUENBERG remarked that he wasn't sure whether
the term "capacity" is appropriate because it usually refers to
whether the individual is incapacitated or is an infant.
MS. TONDINI asked whether it would be sufficient to insert the
following language: "a person who is legally responsible for
the child's welfare". She suggested making the language "or
another person who is legally responsible for the child" a new
subparagraph.
REPRESENTATIVE GRUENBERG suggested having [Ms. Knutson] return
with specific language.
MS. TONDINI stated that the amendment could be conceptual and
she could talk with the drafters.
CHAIR McGUIRE clarified that the intent is to make it clear that
not just anyone can sign a waiver on behalf of a child. She
specified that the intent is for the waiver to be signed by the
child's natural or adoptive parent or the grandparent or
stepparent with whom the child lives.
CHAIR McGUIRE clarified that she had moved the Conceptual
Amendment 3, and related her understanding that Representative
Gruenberg had objected.
REPRESENTATIVE GRUENBERG withdrew his objection.
Number 0502
CHAIR McGUIRE announced that [Conceptual] Amendment 3 was
adopted.
REPRESENTATIVE GRUENBERG returned to the issue of whether to
adopt Amendment 1.
REPRESENTATIVE OGG objected.
CHAIR McGUIRE explained that Representative Ogg was concerned
that without subparagraph (D) on page 3, the child with only a
surrogate parent may not be able to participate in certain
activities.
REPRESENTATIVE GRUENBERG inquired as to whether the concern
could be resolved by not eliminating [subparagraph (D)] and
adding language specifying, "if the activity is within the scope
of the surrogate parenting".
Number 0633
MYRA CASEY, Field Administrator, Central Office, Office of
Children's Services (OCS), Department of Health and Social
Services (DHSS), offered her understanding that the surrogate
parent just represents a child's educational interests. She
informed the committee that when a child is in the custody of
[OCS], OCS "sign" and allow the school to appoint a surrogate
parent. Therefore, it seems that for this legislation, the
child would either have a parent, a legal guardian, or a child
in OCS's custody would allow OCS to sign [a release/waiver
document].
REPRESENTATIVE OGG withdrew his objection.
Number 0692
CHAIR McGUIRE, upon determining there were no further
objections, announced that Amendment 1 was adopted.
Number 0700
CHAIR McGUIRE moved that the committee adopt [a verbally amended
Conceptual] Amendment 4, which then read [original punctuation
provided]:
Page 2, Lines 17-18, following "allege":
Delete "willful, wanton, reckless, or grossly
negligent acts or omissions"
Insert "reckless or intentional misconduct"
Page 2, Lines 27-28, following "for":
Delete "willful, wanton, reckless, or grossly
negligent acts or omissions"
Insert "reckless or intentional misconduct"
REPRESENTATIVE OGG expressed the need for the language to fit in
grammatically.
CHAIR McGUIRE agreed and specified that Amendment 4, as amended,
would be a conceptual amendment.
REPRESENTATIVE GRUENBERG asked whether a parent can waive a
claim for gross negligence, adding that such would be troubling.
He relayed that he would be more comfortable with including
gross negligence.
CHAIR McGUIRE reminded members that she had [verbally] amended
Conceptual Amendment 4 so as to not include "gross negligence"
because of the comments she has heard today. She reminded the
committee that after 1997, when the state changed the punitive
damages statute, all the jury instructions pertaining to gross
negligence became inapplicable. Furthermore, it could be
confusing to create multiple jury instructions. The type of
conduct being targeted is a known risk that someone should
observe and that is being willfully and intentionally
disregarded.
REPRESENTATIVE GRUENBERG surmised, then, that gross negligence
is now part of recklessness.
CHAIR McGUIRE responded, "I think it is." She noted that
Black's Law Dictionary defines gross negligence as follows:
"the intentional failure to perform a manifest duty in reckless
disregard of the consequences." Under Alaska law, reckless is
the standard by which someone consciously disregards a known
risk. Therefore, she opined, [gross negligence and reckless]
are basically the same.
REPRESENTATIVE GRUENBERG surmised, then, that under [Conceptual
Amendment 4] the term "reckless misconduct" includes the concept
of gross negligence.
CHAIR McGUIRE replied, "To the extent that someone would allege
that, yes."
REPRESENTATIVE GRUENBERG said he was satisfied with that, and
withdrew his objection.
Number 0974
CHAIR McGUIRE, upon determining that there were no further
objections, announced that Conceptual Amendment 4, as amended,
was adopted.
CHAIR McGUIRE requested a motion to report the legislation from
committee. She announced that the committee would have an
opportunity to review the committee substitute, and would work
on any serious concerns.
REPRESENTATIVE OGG remarked that as a whole, the legislation is
a "good idea and a good direction to move in." He posed a
situation in which a child doesn't have an action against the
provider of the sports, although the child is seriously injured.
When the child reaches the age of majority, [would the
aforementioned] impact the child's ability to have an action
against his or her parent for negligence, et cetera, he asked.
MS. KNUTSON noted that she has participated in some of the
debate in Colorado on this issue. She relayed that in her
research she has only seen a handful of cases in which the
children have filed a case of negligence against the parent. In
those cases, there was criminal conduct against the children,
and so when the children were appointed guardians, [the
guardians] looked for insurance policies that might support the
children. If a child was hurt while doing a recreational
activity and then upon achieving the age of majority decided to
[bring a case] against the parent, she said that the question
regarding whether it would be supportable would be a question
for the court system. In regard to whether this legislation
would prevent a child from [bringing an action] against a parent
for signing the release, she said it wouldn't. However, she
said she could not predict whether a court could support such an
action.
REPRESENTATIVE GRUENBERG informed the committee that in order to
become emancipated under Title 9, the child must show that he or
she can support himself or herself. He said he could foresee a
circumstance in which an [unemancipated] 17-year-old wants to
pursue a sport, but the parent [doesn't want to sign the
waiver/release document]. He said he wasn't aware of any legal
mechanism that allows such an issue to be brought before the
court. He asked Ms. Knutson whether a provision should be
included in order to allow [someone to] execute the release on
behalf of the child.
MS. KNUTSON answered that the law specifies that until an
individual achieves the age of majority, the individual doesn't
have the capacity to contract. Furthermore, case law in Alaska
specifies that these waiver/release documents are contractual in
nature.
CHAIR McGUIRE, upon determining that no one else wished to
testify, closed public testimony on HB 273.
Number 1320
REPRESENTATIVE OGG moved to report the proposed CS for SSHB 273,
Version 23-LS0966\I, Bullock, 3/19/04, as amended, out of
committee with individual recommendations and the accompanying
zero fiscal note. There being no objection, CSSSHB 273(JUD) was
reported from the House Judiciary Standing Committee.
ADJOURNMENT
Number 1334
There being no further business before the committee, the House
Judiciary Standing Committee meeting was adjourned at 3:15 p.m.
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