Legislature(1993 - 1994)

03/05/1993 02:05 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                          March 5, 1993                                        
                            2:05 p.m.                                          
  MEMBERS PRESENT                                                              
  Senator Robin Taylor, Chairman                                               
  Senator Rick Halford, Vice-Chairman                                          
  Senator George Jacko                                                         
  Senator Dave Donley                                                          
  Senator Suzanne Little                                                       
  OTHERS PRESENT                                                               
  Senator Tim Kelly                                                            
  COMMITTEE CALENDAR                                                           
  SENATE BILL NO. 84                                                           
  "An  Act  relating  to  fees  for identification  cards  and                 
  certain  motor  vehicle  licenses and  permits;  to licenses                 
  issued to drivers and  to revocation of a license  to drive;                 
  and providing for an effective date."                                        
  CS FOR SENATE BILL NO. 44(L&C)                                               
  "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."                                
  SENATE JOINT RESOLUTION NO. 3                                                
  Proposing amendments  to the  Constitution of  the State  of                 
  Alaska relating to terms of legislators.                                     
  SCHEDULED BUT NOT HEARD THIS DAY.                                            
  SENATE JOINT RESOLUTION NO. 4                                                
  Proposing an amendment to the  Constitution of the State  of                 
  Alaska relating to the duration of a regular session.                        
  SCHEDULED BUT NOT HEARD THIS DAY.                                            
  SENATE BILL NO. 69                                                           
  "An Act  prohibiting employers  from discriminating  against                 
  individuals who use legal products in a legal manner outside                 
  of work."                                                                    
  SCHEDULED BUT NOT HEARD THIS DAY.                                            
  PREVIOUS SENATE COMMITTEE ACTION                                             
  SB 84 - See State Affairs minutes dated 2/17/93.                             
  SB  44  -  See  Labor and  Commerce  minutes  dated 1/19/93,                 
  1/21/93,         and 1/26/93.                                                
  SJR 3 - See State Affairs minutes dated 1/20/93 and 1/22/93.                 
  SJR 4 - See State Affairs minutes dated 1/22/93.                             
  SB 69 - See Labor and Commerce minutes dated 2/2/93.                         
          See Judiciary minutes dated 2/17/93.                                 
  WITNESS REGISTER                                                             
  Josh Fink, Aide                                                              
  Senator Tim Kelly                                                            
  State Capitol                                                                
  Juneau, AK 99801-1182                                                        
    POSITION STATEMENT: Testified on SB 84.                                    
  Juanita Hensley, Chief                                                       
  Driver Services                                                              
  Division of Motor Vehicles                                                   
  Department of Public Safety                                                  
  P.O. Box 20020                                                               
  Juneau, Alaska 99802-0020                                                    
    POSITION STATEMENT: Testified on SB 84.                                    
  Cynthia Christianson, Attorney                                               
  2101 Belmont Drive                                                           
  Anchorage, Alaska 99517                                                      
    POSITION STATEMENT: Opposed SB 84.                                         
  Dennis Mestas, Attorney                                                      
  Mestas and Schneider                                                         
  880 N Street #202                                                            
  Anchorage, Alaska 99501                                                      
    POSITION STATEMENT: Opposed SB 44.                                         
  Fred Turton, Program Director                                                
  Juneau Ski Club                                                              
  155 S. Seward                                                                
  Juneau, Alaska 99801                                                         
    POSITION STATEMENT: Supported SB 44.                                       
  Paul Swanson, Manager                                                        
  P.O. Box 34898                                                               
  Juneau, alaska 99803                                                         
    POSITION STATEMENT: Supported SB 44.                                       
  Mike Ford, Attorney                                                          
  Legislative Legal Counsel                                                    
  Legislative Affairs Agency                                                   
  130 Seward Street                                                            
  Juneau, Alaska 99801                                                         
    POSITION STATEMENT: Drafted SB 44.                                         
  ACTION NARRATIVE                                                             
  TAPE 93-21, SIDE A                                                           
  Number 001                                                                   
  Chairman Robin Taylor called the Judiciary Committee meeting                 
  to order at 2:05 p.m.                                                        
  SENATOR TAYLOR introduced SB 84  (REVOKE DRIVER'S LICENSE IF                 
  USE FALSE I.D.)  and invited the prime  sponsor, SENATOR TIM                 
  KELLY, to review his bill.                                                   
  SENATOR KELLY critiqued  previous history  on the intent  of                 
  the legislation in the last session,  where it died in House                 
  Finance.  He  listed the supporters from  the previous bill:                 
  Department  of  Public Safety,  Health and  Social Services,                 
  Municipality of  Anchorage, Mothers  Against Drunk  Driving,                 
  Bristol Bay  Health Area  Corporation, THE  DAILY NEWS,  the                 
  Alcohol Beverage Control Board, the Alaska Cabaret, Hotel, &                 
  Restaurant Retail Association, and  the Anchorage Restaurant                 
  & Beverage Association.                                                      
  SENATOR  KELLY  explained   SB  84  addressed  the   use  of                 
  fraudulent  licenses  by  minors to  purchase  alcohol  in a                 
  number of ways.  First, it would require that a  hologram be                 
  placed  over  vital information  on  the license  to prevent                 
  tampering.  Second, the phrase "under 21" would be placed on                 
  the licenses of those who are 21 years of age, indicating to                 
  someone  serving  alcohol, the  person  is too  young  to be                 
  served alcohol.   Besides  being a  deterrent to  tampering,                 
  SENATOR  KELLY  said it  would  also prevent  juveniles from                 
  attempting to purchase alcohol with a fake license.                          
  SENATOR KELLY explained driving privileges would be  revoked                 
  for  any  individual caught  using  a fraudulent  license to                 
  purchase alcohol, with revocation  of 60 days for the  first                 
  offense, and 12 months for any subsequent offenses.  He said                 
  the legislation  should provide  an effective deterrent  for                 
  minors considering the  use of a fraudulent  drivers license                 
  to purchase alcohol, thereby alleviating  some of the abuses                 
  of alcohol by minors.                                                        
  SENATOR TAYLOR opened the meeting to discussion on the bill.                 
  Number 063                                                                   
  SENATOR LITTLE asked SENATOR  KELLY to explain the  costs as                 
  listed in the  fiscal note.   SENATOR KELLY deferred to  his                 
  aide,  JOSH FINK, who had worked on the previous legislation                 
  last year.                                                                   
  MR. FINK deferred to JUANITA  HENSLEY, who had prepared  the                 
  fiscal note, and was testifying from Anchorage.                              
  SENATOR TAYLOR  asked MS. HENSLEY, Chief of Drivers Services                 
  for  the  Division  of  Motor  Vehicles, to  answer  SENATOR                 
  LITTLE'S questions about the fiscal note.                                    
  MS. HENSLEY explained  the Division of Motor  Vehicles would                 
  be revoking  about 1500  drivers licenses  per year,  as the                 
  result  of  the  legislation.    In  order  to  process  the                 
  revocation, she had asked for one full time hearing officer,                 
  because the law requires due process before a license can be                 
  revoked.  Two full time  document processors would be needed                 
  to  do the paper work to actually  revoke the license and to                 
  notify the person of the revocation.                                         
  MS. HENSLEY outlined  the cost and  method for placing  both                 
  the hologram  and the holographic  phrase "under 21"  on the                 
  license,  a  process  that  can  be  done  by  the  Polaroid                 
  Corporation,  which  has  the means  to  place  the hologram                 
  directly into the drivers license pouch.   She said the cost                 
  to the state would be an additional $50,000 per year.                        
  MS. HENSLEY estimated the revenue from the increased drivers                 
  license fees, under SB 84, would be $815,000.  She explained                 
  the cost to effectively operate within the legislation would                 
  be $215,700 for the first year, but would  be reduced in the                 
  following years to $191,000.  She  suggested the fee, set at                 
  $5 for  a duplicate drivers license, should  be increased to                 
  at least $10 or $15, because it takes more time to process a                 
  duplicate drivers license than a renewal drivers license.                    
  Number 140                                                                   
  SENATOR LITTLE clarified  the personnel costs would  pay for                 
  one hearing  officer and  two document  processors, and  MS.                 
  HENSLEY said she was correct.   In answer to a question from                 
  SENATOR  LITTLE, MS.  HENSLEY  explained  a law  enforcement                 
  officer would  confiscate the drivers license and send it to                 
  the Division of Motor Vehicles, which would then conduct the                 
  proper hearings to get the license revoked.                                  
  SENATOR  TAYLOR  noted  MS.  HENSLEY'S  estimation  of  1500                 
  revoked drivers licenses each year and asked if she believed                 
  the young people of Alaska were stupid enough to continue to                 
  use fraudulent licenses  after seeing some of  their friends                 
  lose their license.                                                          
  MS. HENSLEY claimed  she had no  way of knowing exactly  how                 
  many under age drivers would have their license revoked, but                 
  she was quoting statistics from the ABC Board, which submits                 
  about 500 to 700 confiscated drivers licenses each year from                 
  bars or other liquor establishments.   She said that did not                 
  take  in  to  account  those  licenses  confiscated  by  law                 
  enforcement throughout the state, but  she hoped there would                 
  not be 1500 drivers licenses every year.  She also hoped the                 
  legislation would be a deterrent.                                            
  SENATOR TAYLOR felt  the salient  nature of  the bill  would                 
  cause younger people to  understand the significant  penalty                 
  for  using  phoney  identification  and  disagreed with  MS.                 
  HENSLEY'S figures of 500 to 700 confiscated drivers licenses                 
  in the future.  He also disagreed with the fiscal note based                 
  on 1500 revoked  licenses each year, citing  the devastating                 
  effect of the penalty as a restraint.                                        
  Number 192                                                                   
  SENATOR  JACKO asked for the total  cost for each individual                 
  to retrieve their license after it has been confiscated, and                 
  MS. HENSLEY explained  the process of replacing  the revoked                 
  license, beginning with  a written test and  a possible road                 
  test.   She  said it  would  be a  $100 in  addition  to the                 
  regular license fee of $10.                                                  
  SENATOR TAYLOR quoted MS. HENSLEY'S estimate of $50,000 from                 
  the Polaroid Company  and asked for  the proposed number  of                 
  licenses to be  issued for  this amount.   MS. HENSLEY  said                 
  last year the Division of Motor Vehicles issued in excess of                 
  200,000  drivers   licenses  and   I.D.'S,  which   included                 
  originals, renewals, and  duplicates of both.   She was told                 
  it  would increase  the cost of  a license  by 25  cents per                 
  license  to  place the  hologram  - which  accounts  for the                 
  $50,000.    There   was  a   surprised  discussion  at   her                 
  SENATOR LITTLE spoke  in favor  of raising the  fee for  the                 
  duplicate drivers license higher  than the original  license                 
  fees, as a  dis-incentive to tamper  with their license  and                 
  risk confiscation.                                                           
  SENATOR KELLY asked for how long a drivers license is valid,                 
  and MS.  HENSLEY explained  the licenses  were  valid for  5                 
  years, with the exception of the duplicate drivers licenses,                 
  which  is  predicated  on  the  time left  on  the  original                 
  Number 244                                                                   
  SENATOR  KELLY questioned when the holographic license would                 
  be issued, under  21 and 16 year  old when they come  in for                 
  their first license?  MS. HENSLEY said the licenses would be                 
  issued  to  everyone  who  came into  the  office,  and  she                 
  explained those under  21 would receive  a license with  the                 
  holographic phrase on it.  He said the object was to keep an                 
  under 21 year old  person from using a license  belonging to                 
  someone over 21.                                                             
  SENATOR  TAYLOR  thanked  MS. HENSLEY  for  her  interesting                 
  answers and asked SENATOR KELLY how  he wanted to proceed on                 
  the bill.                                                                    
  SENATOR KELLY indicated  he had  no problem with  increasing                 
  the fees for duplicate licenses,  and they discussed placing                 
  the change on page 6, line 14.                                               
  SENATOR TAYLOR  moved to amend  SB 84  to raise the  fee for                 
  duplicate licenses to $15.  SENATOR HALFORD objected, saying                 
  he didn't  want to increase fees in  large amounts anywhere.                 
  SENATOR KELLY said  the increase  would be $2  per year  and                 
  suggested $10 instead.                                                       
  SENATOR  DONLEY  clarified  the  bill  would bring  in  more                 
  revenue than the  costs, and SENATOR KELLY agreed.   SENATOR                 
  JACKO thought it was to be a deterrent, and MS. HENSLEY said                 
  he  was  correct.   SENATOR JACKO  asked  if the  bill could                 
  specify the increased fee would only be  for the confiscated                 
  licenses.  There was a general  discussion of the extra $100                 
  on the renewal of a confiscated license.                                     
  SENATOR KELLY asked for some elaboration from MS. HENSLEY on                 
  the fee  structure and how  long the  present licenses  have                 
  been at $3 for a duplication.  MS. HENSLEY explained the fee                 
  was raise from $2 to $3 within  the last ten years.  SENATOR                 
  KELLY asked for the  fee schedule for other states,  and MS.                 
  HENSLEY said she  would get  the information for  him.   She                 
  explained  that  some people  buy several  to  as many  as 8                 
  duplicates  of  their  license  to  be  retained  for  legal                 
  purposes or for resale.                                                      
  Number 313                                                                   
  SENATOR TAYLOR  asked for  the actual  cost of processing  a                 
  duplicate license.  MS. HENSLEY estimated the actual cost of                 
  a renewal is  $15, while an original costs $10,  and if that                 
  person has to take a road test, its an additional $15.                       
  SENATOR LITTLE  asked MS.  HENSLEY if  she was  relating the                 
  cost to the consumer or the cost  to the state.  MS. HENSLEY                 
  was unable to  give an accurate cost because of  the cost of                 
  the related  activities.   SENATOR KELLY  reviewed the  cost                 
  structure to include personnel costs.                                        
  SENATOR TAYLOR  renewed  his motion  to  amend the  bill  to                 
  increase the  cost of  a renewal  license to  $15.   SENATOR                 
  KELLY thought the  committee should  consider the number  of                 
  duplicates purchased  by  the drivers,  which brought  about                 
  some raillery.  SENATOR JACKO didn't think the fee should be                 
  changed.  SENATOR TAYLOR withdrew his motion.                                
  Number 396                                                                   
  SENATOR TAYLOR noted  the following people in  Anchorage who                 
  wished to  testify: CAROL WILSON, ED O'NEILL,  and MR. DORAN                 
  POWELL.   When polled,  all three  were in  favor of SB  84.                 
  SENATOR TAYLOR  entertained a motion  to move the  bill from                 
  SENATOR  LITTLE moved  to pass  SENATE  BILL NO.  84 (REVOKE                 
  DRIVER'S  LICENSE  IF USE  FALSE  I.D.) from  committee with                 
  individual recommendations.  Without objections, so ordered.                 
  SENATOR TAYLOR introduced SB 44  (CIVIL LIABILITY FOR SKIING                 
  ACCIDENTS) and invited the prime sponsor, SENATOR TIM KELLY,                 
  to testify on his bill.                                                      
  SENATOR KELLY reviewed  the complaints of others on the bill                 
  that it would absolve ski resorts  from all liability and is                 
  a special interest ski industry bill.  He didn't believe the                 
  allegations  were  true,  nor did  he  think  the detractors                 
  understood the changes that were  made since the legislation                 
  was introduced, and he explained the changes.                                
  SENATOR KELLY listed those in support of SB 44: Municipality                 
  of  Anchorage, the  Alaska Visitors Association,  the Alaska                 
  Hotel  and  Motel  Association,  the United  Brotherhood  of                 
  Carpenters, Anchorage Economic Development  Corporation, and                 
  Eaglecrest in Juneau.                                                        
  SENATOR KELLY  explained how the  legislation protected  the                 
  skiers' safety and the ski  resorts from frivolous lawsuits.                 
  He said it would encourage further ski resort development.                   
  SENATOR  KELLY noted there  were a number  of amendments and                 
  asked the indulgence  of the  committee to examination  them                 
  SENATOR TAYLOR indicated  a number of  people who wished  to                 
  testify,   and  he   began  with  CYNTHIA   CHRISTIANSON  on                 
  teleconference from Anchorage.                                               
  MS. CHRISTIANSON  explained she  was testifying  as an  avid                 
  skier, as a  mother of ski racers,  and as a lawyer  against                 
  the legislation.   She  conceded the  responsibility of  the                 
  skier  for  the truly  inherent  risks  of skiing,  and  she                 
  thought skiers should be responsible  for their own actions,                 
  but the resort should not be relieved of all responsibility.                 
  In reading the bill,  she noted this lack of  responsibility                 
  on  the part of  the resort, and  she assailed  the bill for                 
   what she perceived as the shortcomings.   She concluded with                
  an example of her child being lost the same day as the Rizer                 
  child died and receiving poor attention from the ski resort.                 
  Number 465                                                                   
  SENATOR TAYLOR moved back to Juneau to hear DENNIS MESTAS.                   
  MR. MESTAS identified  himself as  a plaintiffs lawyer  with                 
  cases against  Alyeska, and he  claimed the  bill was  being                 
  driven by  Seibu,  not withstanding  what  others say.    He                 
  described Seibu as  being a gigantic Japanese ski and resort                 
  operation throughout the world.                                              
  MR.  MESTAS  portrayed  the  bill  as  representing  a  step                 
  backwards with no protection for skiers, and he quoted parts                 
  of the Hiibschman  decision to determine that  skiers should                 
  be protected from unforeseeable harm.                                        
  MR. MESTAS referred to  AS 5.45.010 to quote, "(1)  a person                 
  may not bring an action against a ski operator for an injury                 
  resulting from an inherent danger and risk of skiing;" which                 
  is the law  now; however, in Subsection (2) he quoted, "if a                 
  person is injured as a result of an inherent danger and risk                 
  of  skiing  and  negligence by  the  ski  area  operator, in                 
  determining percentages of fault the trier of fact may treat                 
  the inherent danger and risk of skiing, as part of the fault                 
  attributed  to the  ski  area operator."   He  described how                 
  these apparent conflicting  subsections could  be used in  a                 
  court case,  with  a  percentage of  fault  assigned  to  an                 
  inherent risk, such as a cliff, in assessing the injury.                     
  MR. MESTAS expressed  his distress and discussed  the courts                 
  decisions  on comparative  negligence  which didn't  include                 
  "things."  He  continued to  discuss jury instructions,  the                 
  percentage   of  fault,  inherent  risk  in  accidents,  and                 
  comparative  negligence.     He  summarized   the  bill   as                 
  delineating specific duties  for a ski area and  to insulate                 
  them from other duties.                                                      
  MR.  MESTAS  said  he  had  provided  some material  to  the                 
  committee as to the specifics of the duties  of the ski area                 
  to warn skiers  about hazards and  inherent risks.  He  read                 
  the footnote  on the  Hiibschman decision  on page  1360, "A                 
  risk must be  necessary to be an inherent risk of the sport.                 
  The question is whether a risk is necessary as it relates to                 
  the operator's duty,  if a given danger could  be eliminated                 
  or mitigated through  the exercise of reasonable care, it is                 
  not necessary."                                                              
  MR. MESTAS said, since Eaglecrest had supported the bill, he                 
  provided  to  the  committee   the  Eaglecrest  safety   and                 
  operations plan, which indicates the  ski operators are duty                 
  bound to have a plan of action  and protection.  He asked to                 
  have the following read into the record:                                     
  "Hazard  Marking  - There  are  still  many  who  refuse  to                 
  seriously consider hazard marking because of their belief in                 
  the long outmoded concept that the marking or padding of one                 
  object  or obstacle  that  has  the  potential to  become  a                 
  hazard, means that the area operators are some how obligated                 
  to mark or  protect all objects or  obstacles, regardless of                 
  their  potential  to  become  a  hazard to  the  reasonable,                 
  prudent skier.                                                               
  It is essential that area operators focus on the standard of                 
  ordinary and  reasonable care  by which  they will  often be                 
  judged in determining whether or not they should have marked                 
  or  identified particular hazards. Area operators must adopt                 
  an  evaluation  approach to  hazard identification,  such an                 
  approach  mandates  that  the operator  views  his  ski area                 
  through the eyes of the so  called reasonably prudent skier,                 
  skiing in  control, attempting to appreciate  the visibility                 
  factors, which change with variations in surface conditions,                 
  light, and weather.                                                          
  A skier has, or should of had, notice of the presence of the                 
  obstacle, so he can take the necessary evasive or corrective                 
  action to avoid it.   The combination of sufficient  warning                 
  and appreciation  of potential  danger, keeps  the obstacles                 
  from becoming a  hazard.  The  often cited position, if  you                 
  make an obstacle, you must mark them all, does not reflect a                 
  thought process, and should  not be used as  a policy."   He                 
  summarized the remainder  of the  language dealing with  the                 
  protection of the public."                                                   
  MR. MESTAS  directed attention  to page  8 of  the bill  for                 
  items  to  be marked  and those  not  marked.   He indicated                 
  Subsections (4), (5),  and (6) were  added in the Labor  and                 
  Commerce Committee.                                                          
  Number 553                                                                   
  MR.  MESTAS  said the  original  bill  did not  provide  for                 
  marking man-made structures, but he pointed out  in (4) some                 
  man-made structures that are exempted but reinstated in (6).                 
  He outlined the confusing aspects he noted in SB 44,  and he                 
  quoted the Hiibschman decision again to make his point about                 
  hazards and grooming.                                                        
  MR.  MESTAS directed attention to page 12 and the definition                 
  of "inherent danger and risk of  skiing," which lists all of                 
  the inherent dangers and risks of skiing, including man-made                 
  structures  installed by the  ski slope operators.   He next                 
  pointed  to the  contradiction in the  list which  "does not                 
  include the negligence of a ski area operator..."  He stated                 
  it  would be  a  defense attorney's  dream  and a  courtroom                 
  nightmare, and he  gave other evidence  of unbalance in  the                 
  bill, including a review of the warning sign on page 9.                      
  MR. MESTAS said  the bill was  a direct  attack on the  jury                 
  system, and  he described the  role of summary  judgement in                 
  any injury claim.                                                            
  TAPE 93-21, SIDE B                                                           
  Number 001                                                                   
  MR. MESTAS  claimed the bill  was an  attack on  fundamental                 
  rights and should be  taken seriously.  He accused  the bill                 
  of depriving a  person of a jury trial, and he explained how                 
  this would be done.                                                          
  SENATOR TAYLOR asked for specific amendments, and MR. MESTAS                 
  asked for a few extra days to submit some amendments focused                 
  on the provisions he named.                                                  
  SENATOR TAYLOR asked for the number of suits brought against                 
  ski areas  in Alaska,  and MR. MESTAS  reviewed about  three                 
  cases including the one he represented, BART RIZER.                          
  MR. MESTAS said SB 44 would insulate  Seibu from avalanches,                 
  and he  gave a possible scenario.   He presented information                 
  from the  forest  service through  their federally  mandated                 
  plan.    He charged  the  bill  would put  Alaska  in direct                 
  conflict with the  federal government, at  least as to  U.S.                 
  Forest  Service land that is being  used by Alyeska, because                 
  there are rules and regulations already in effect.                           
  SENATOR LITTLE asked to see MR. MESTAS' amendments.                          
  SENATOR TAYLOR  clarified that  MR. MESTAS  was representing                 
  the  estate  of BART  RIZER and  the  parents of  BART RIZER                 
  against Seibu.                                                               
  SENATOR TAYLOR  asked for  the facts  of the  case, and  MR.                 
  MESTAS  explained the circumstances that led to the death of                 
  BART RIZER.  He described the  weather conditions of the ski                 
  bowl  at Alyeska,  the lack  of grooming,  and the  unmarked                 
  stream bed filled  with powder  snow and frozen  waterfalls,                 
  into which BART  skied.  According to the death certificate,                 
  he died of hypothermia.                                                      
  MR. MESTAS claimed  it took the  rescue crew three hours  to                 
  get to  the accident site  even though  it was known  to his                 
  skiing  companion.  He said the search and rescue operations                 
  had  left  the  hill  at  Alyeska,  and  he  outlined  other                 
  negligent problems with the management of  the ski area.  He                 
  said the Employee  Safety and Grievance Committees  has been                 
  dissolved so procedures have been lost.                                      
  Number 072                                                                   
  SENATOR KELLY said the  bill was an attempt to  be sure what                 
  MR.  MESTAS  described  would  never  happen again,  and  he                 
  claimed  there were provisions in  the bill to force Alyeska                 
  to follow proper rules and regulations.                                      
  MR. MESTAS  explained that  under the  operations plan  they                 
  have  to  follow  the present  rules  of  the  United States                 
  government.  He expressed concern  there was no reference in                 
  the bill to  specific plans  or standards set  equal to  the                 
  present  plans of Alyeska and Eaglecrest,  with which he has                 
  no problem.                                                                  
  SENATOR  TAYLOR asked  MR.  MESTAS for  his  opinion on  the                 
  provisions in the bill.                                                      
  MR. MESTAS said the bill was very specific as to the  duties                 
  but tries to  sweep many duties out  the door.  He  said the                 
  law and the plan they have to follow is a general, broad set                 
  of duties which lacks some of the important duties.                          
  SENATOR TAYLOR asked  if the same accident could occur under                 
  SB 44, or what changes would  have to be made.  He  reviewed                 
  some of the description  from the accident and asked  if the                 
  hazards, as described, were inherent hazard.                                 
  MR. MESTAS explained, under SB 44,  the Rizer family, or any                 
  other situated family, could not sue  Sabu, and he explained                 
  the pertinent provisions.                                                    
  SENATOR  TAYLOR turned next to  MR. FRED TURTON, the program                 
  director for the Juneau Ski Club, for his testimony.                         
  MR.  TURTON  described  his  ski  background  as  a  level 3                 
  certified   alpine  coach   for   the  United   States   Ski                 
  Association, a full  certified instructor of PSIA,  a member                 
  of the Western Region Alpine  Committee and holds membership                 
  in several membership and development committees,  including                 
  those in Alaska.  In addition, he is a member of  the United                 
  States  Course  Approvals  Committee,   which  oversees  the                 
  providing  of   safe  and   fair  courses   for  competition                 
  throughout the United States and  internationally.  As well,                 
  he is a  full certified official,  a licensed FIS  technical                 
  delegate, and current ranking official in Alaska.                            
  MR. TURTON said he was here  to fully support the bill,  and                 
  he distanced himself from being a  lawyer.  He explained, as                 
  a coach, he was to provide challenge for young athletes, and                 
  the  best  teacher  was  the  mountain.    He  outlined  the                 
  difference in skiing  in Alaska and  any other place in  the                 
  United States.                                                               
  MR. TURTON said he encouraged the  youngsters to ski off the                 
  groomed slopes,  into the glades, the trees, off cliffs, and                 
  into the open bowl areas. He  spent some time describing his                 
  training programs in Alaska  as being dramatically different                 
  with a variety of conditions.                                                
  Number 195                                                                   
  MR. TURTON stressed teaching  personal responsibility by the                 
  youngsters  as  well  as  fitness,  and  he  said  the  bill                 
  shouldn't be left  to the lawyers to  decide responsibility.                 
  He urged a close look at alpine ski racing, and he described                 
  the unique conditions under which they  train.  In contrast,                 
  he  described  what  he considered  over-groomed  slopes for                 
  Olympic skiing for some of the races.                                        
  SENATOR DONLEY  said he  didn't understand,  and MR.  TURTON                 
  asked for more time to plead  his case for un-groomed slopes                 
  and  against  protected  skiing.    He  railed  against  the                 
  increase in the  cost of  lift tickets and  the decrease  in                 
  skiing freedom.                                                              
  MR. TURTON  described skiing as having  evolved dramatically                 
  in the last 50 years, and he thanked the ski areas  for both                 
  himself and his  athletes.  He  expressed concern that  more                 
  and more, lawyers dictate how he could enjoy the sport.                      
  Number 232                                                                   
  SENATOR TAYLOR thanked MR. TURTON and asked for questions.                   
  SENATOR DONLEY asked MR. TURTON for some of  the particulars                 
  of his occupation,  and he described his relations  with the                 
  Juneau Ski Club, a non-profit organization.                                  
  SENATOR TAYLOR asked MR. TURTON what freedoms had been taken                 
  away from him by the current  laws, and MR. TURTON explained                 
  he  had watched many of the areas he had skied in the past -                 
  closed.  At  SENATOR TAYLOR'S  probing, MR. TURTON  describe                 
  his years  spent in  Jackson Hole,  Wyoming.   Due to  minor                 
  changes in snow conditions or visibility, the area  has been                 
  closed  because  of  possible lawsuits.    He  expressed his                 
  belief  that  the attitude  about  the type  of  training he                 
  provides has  changed.   He finds limitations in the type of                 
  assertive training he provides, and the amount of speed that                 
  may  not  be available  to  the youngsters  in  a controlled                 
  environment.   He spoke  of these  as  limiting choices  and                 
  MR. TURTON reported on his  conversations with PAUL SWANSON,                 
  who   manages   Eaglecrest,   that  should   we   not   have                 
  responsibility for our own actions, he may not have a choice                 
  but  to place  restrictions  on the  training  program.   He                 
  discussed his relationship to the Eaglecrest ski area.                       
  Number 278                                                                   
  SENATOR TAYLOR pushed for a reason, and MR. TURTON described                 
  the  structure  of    their  non-profit  organization.    He                 
  expressed his  concern for  the health and  freedom for  the                 
  sport of skiing in  his conversations with MR. SWANSON.   He                 
  lamented not  being able  to provide  ski races  that didn't                 
  cost  a  great  deal of  money  and  he  blamed lawyers  and                 
  insurance companies for meddling in the ski racing arena.                    
  SENATOR DONLEY asked if  the sport of skiing was  safer now.                 
  MR.  TURTON said it  was a different type  of safety, and he                 
  cited  several  examples  of ski  slope  grooming,  ski boot                 
  design,  and  stress on  skiers.    He  denied knowledge  of                 
  catastrophic injuries, but he has  had students who suffered                 
  SENATOR  DONLEY  discussed  injuries  and  safety  with  MR.                 
  TURTON, who expressed the exhilaration of skiing, but didn't                 
  urge everyone  to do rapid skiing.  He  did think it was all                 
  part of the challenge - like fine tuning a race car.                         
  SENATOR DONLEY  queried MR. TURTON  about the responsibility                 
  for  accidents,  and   MR.  TURTON  spoke  about   the  very                 
  responsible people in the  sport of skiing.  He  thought any                 
  ski injury was because of the inherent risk of skiing.                       
  Number 352                                                                   
  SENATOR TAYLOR clarified that in his 30 years of skiing, MR.                 
  TURTON  had  never seen  a  lawsuit  that won.    MR. TURTON                 
  narrowed  that  to the  racing arena,  but  he has  seen his                 
  insurance  rates  go from  $3 to  $50.   They  discussed all                 
  facets  of  the  soaring  rise in  the  cost  of  insurance,                 
  membership fees, and equipment.                                              
  SENATOR TAYLOR was concerned  about the number of skiers  at                 
  Eaglecrest who had suffered injuries  during the season, but                 
  MR. TURTON  had no  knowledge of  the injuries,  nor was  he                 
  aware of any suits.                                                          
  PAUL  SWANSON  introduced   himself  and  answered   SENATOR                 
  TAYLOR'S question about possible suits  as one pending suit.                 
  There  was  a  general  discussion  of possible  suits,  and                 
  SENATOR TAYLOR  said he  wanted to  know the  extent of  the                 
  Number 419                                                                   
  SENATOR DONLEY said he understood the athletic mentality for                 
  the thrill of pushing to the extent of their ability, but he                 
  was concerned about the casual skiers, who are not in shape.                 
  He  said these  people should expect  reasonable protection,                 
  but he thought MR. TURTON'S students were different in their                 
  approach to skiing.                                                          
  MR. TURTON reiterated  his concern that  any changes to  the                 
  skiing terrain creates a logistical nightmare for the staff,                 
  and he reviewed the bill in  terms of less change.   SENATOR                 
  TAYLOR said he  was concerned about excessive  marking, too,                 
  and  he  thought  they  were setting  up  ski  operators  to                 
  constantly  patrol   the  slopes  to  comply   with  current                 
  Number 514                                                                   
  MR. TURTON explained ski racing was governed by a strict set                 
  of rules and  not an  easy arena, and  he further  explained                 
  that  adhering  to  those  rules  was  his  first  order  of                 
  business.  He spoke for clear delineation of the rules.                      
  SENATOR  LITTLE  apologized for  missing  his testimony  and                 
  expressed concern the legislation would make the public less                 
  safe.  SENATOR TAYLOR  thanked MR. TURTON again and  said he                 
  had heard of his wonderful coaching.                                         
  TAPE 93-22, SIDE A                                                           
  Number 001                                                                   
  SENATOR TAYLOR asked MR. TURTON for any additional comments,                 
  and MR.  TURTON reported that CHRISTIE HERRON  was unable to                 
  testify.  They agreed she was supportive of the legislation.                 
  SENATOR TAYLOR noted  he would continue taking  testimony on                 
  the SB 44, but the  mark-up on the bill would be later.   He                 
  next  called  on  MR. SWANSON,  formerly  identified  as the                 
  manager of Eaglecrest, to testify.                                           
  MR. SWANSON  listed the ski organizations with  which he was                 
  associated and for  whom he spoke in  support of SB 44.   He                 
  pointed out that in all sports there are inherent risks, and                 
  he named quite  a few.   He thought the legislation  clearly                 
  defined the responsibilities of both the skiers and  the ski                 
  operators  and  would help  the  small  ski  operators.   He                 
  reported that 14 other states had adopted the inherent risks                 
  of  skiing.  He reviewed the wishes  of skiers as to groomed                 
  or un-groomed slopes, but declared  the mountain couldn't be                 
  completely manicured.                                                        
  Number 092                                                                   
  SENATOR   TAYLOR  continued  to   discuss  examples   of  an                 
  attractive  nuisance and an  inherent risk.   He referred to                 
  page 12,  lines 10 and  11, to talk about  stairs going into                 
  the Eaglecrest Lodge, which is a man-made structure.                         
  SENATOR TAYLOR discussed  with MR. SWANSON whether  he would                 
  be able to sue Eaglecrest under  this provision in the bill.                 
  MR.  SWANSON  said  he  looked  at hydrants  as  snow-making                 
  hydrants and other  man-made structures  as lift towers  and                 
  SENATOR TAYLOR said  he wanted to find something that works,                 
  too.  He gave an example of a lift tower at Alyeska that has                 
  invisible damage  and collapses.   Under  the definition  of                 
  inherent danger and risk of skiing, an injured person  could                 
  not sue.  MR. SWANSON had been thinking more about collision                 
  with  man-made  objects,   which  he  interpreted   a  skier                 
  colliding with something.  They agreed it was confusing.                     
  MR. SWANSON said SB 44 was a copy of the Colorado bill, with                 
  some changes.                                                                
  SENATOR TAYLOR asked MR.  SWANSON if he knew of a  time when                 
  Eaglecrest was successfully sued, and he said Eaglecrest had                 
  been very fortunate, but he knew there had been a death some                 
  years ago.                                                                   
  Number 185                                                                   
  MR. SWANSON knew of cases where Eaglecrest paid some medical                 
  bills but no suits.  SENATOR TAYLOR asked if their insurance                 
  carrier had spoken  to him about SB 44, and MR. SWANSON said                 
  he had given their carrier a copy of the bill, but there had                 
  been  no   response.    MR.  SWANSON  offered  to  take  any                 
  interested  person  on  a tour  of  Eaglecrest,  and SENATOR                 
  TAYLOR praised the operation and his attendance.                             
  SENATOR TAYLOR asked  MIKE FORD, the  drafter of SB 44,  for                 
  his opinions.                                                                
  Number 223                                                                   
  SENATOR  TAYLOR referred  to  an opinion  from  MR. FORD  in                 
  January  for  REPRESENTATIVE  MARK   HANLEY  and  asked  for                 
  clarification on "This  draft probably  does not change  the                 
  law as  set out  in Hiibschman."   MR.  FORD explained  that                 
  Hiibschman did not make the law,  but interpreted the law as                 
  enacted  by  the Legislature  some  years ago.    He further                 
  explained that present law provides that the ski area is not                 
  liable for inherent risks  of skiing, and that SB  44 simply                 
  elaborates on that law.                                                      
  MR. FORD said the legislation  enacted consistent duties for                 
  skiers and for ski area operators.   In addition, it changes                 
  the  definition of an "inherent danger  and risk of skiing."                 
  He  explained the Hiibschman case looked at our existing law                 
  and applied the case "for an inherent risk, the  ski area is                 
  not  liable; if  the  ski operator  is  negligent, they  are                 
  liable."    He  thought the  problem  was  in distinguishing                 
  between the two that causes the  problem.  MR. FORD portrays                 
  SB 44 as defining those duties for the ski area operator and                 
  for the skiers, as well - and not reinventing the wheel.                     
  MR.  FORD  didn't believe  the  bill changed  the Hiibschman                 
  case,  and he explained the definition of "inherent risk" in                 
  the bill did not mention the key finding that "ski jumps are                 
  not on  the list."  Now, it will be up to the jury to decide                 
  if a ski jump is an inherent risk.                                           
  SENATOR  TAYLOR clarified  the question  of liability  would                 
  still go  to the jury, and  the ski operators would  not get                 
  out from under the  case on a motion for  summary judgement.                 
  MR.  FORD  further  clarified  it  with  "...  if there  was                 
  evidence  of  negligence."   They  continued to  discuss the                 
  evidence of negligence, summary judgement, and litigation in                 
  relation to the inherent risk of skiing.                                     
  SENATOR TAYLOR asked him to speak  to the questions from MR.                 
  SWANSON and MR. TURTON about the narrowing of their right to                 
  Number 314                                                                   
  MR. FORD expanded his remarks to  explain it does change the                 
  law, but  it is  not a  fundamental change  in the  existing                 
  system.  Ski operators are still liable for negligence under                 
  the existing law - and the  proposed law.  He reiterated the                 
  changes  in  the  definition  for  "inherent risk,"  and  he                 
  reviewed the key issue  for the Legislature - to  decide how                 
  to balance the changes.   In addition, he also  expanded the                 
  importance of  a ski area  plan, and the  political entities                 
  involved - such as  the U.S. Forest Service or the Bureau of                 
  Land Management.                                                             
  SENATOR TAYLOR  quoted MR.  TURTON'S concerns,  and to  some                 
  extent those of MR. SWANSON, about the unwanted grooming  of                 
  slopes,   which  would   ruin   the  thrill   of  unfettered                 
  recreation.   SENATOR TAYLOR expressed the  apprehensions of                 
  others that if standards aren't  established, there would be                 
  blanket  immunity  given  to  the  ski  operators,  so  they                 
  couldn't be sued  by anyone for  damages.  He thought  there                 
  were two extreme points of view on the legislation.                          
  MR. FORD, who has skied throughout the  state, thought there                 
  had been giant  strides made in  the improvement of the  ski                 
  slopes.    He  also thought  some  of  the  improvements had                 
  blunted the  extreme end  of skiing,  where wild  places had                 
  been tamed, which might be an inhibiting factor.                             
  SENATOR  TAYLOR  clarified  with  MR.  SWANSON the  risk  of                 
  falling through the  stairs at the  ski lodge, and MR.  FORD                 
  MR. FORD concluded with a thorough  review of groomed v. un-                 
  groomed  slopes with  ever  changing  conditions,  and  they                 
  discussed the marking provisions of both.                                    
  SENATOR  TAYLOR  apologized  to  the  participants  on   the                 
  teleconference network in  Anchorage:  BRUCE &  PATTI RIZER,                 
  BOND, and ROBERT GIGLER.   He promised a mark-up  session on                 
  the bill as soon as possible.                                                
  There  being  no   further  business  to  come   before  the                 
  committee, the meeting was adjourned at 4:03 p.m.                            

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