Legislature(2001 - 2002)
02/06/2002 01:43 PM Senate JUD
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ALASKA STATE LEGISLATURE
SENATE JUDICIARY COMMITTEE
February 6, 2002
1:43 p.m.
MEMBERS PRESENT
Senator Robin Taylor, Chair
Senator John Cowdery
Senator Gene Therriault
MEMBERS ABSENT
Senator Dave Donley, Vice Chair
Senator Johnny Ellis
COMMITTEE CALENDAR
CS FOR SPONSOR SUBSTITUTE FOR HOUSE BILL NO. 111(JUD) am
"An Act relating to civil liability for injuries or death
resulting from livestock activities."
HEARD AND HELD
PREVIOUS COMMITTEE ACTION
HB 111 - see Resource minutes dated 4/20/01
WITNESS REGISTER
Rynnieva Moss
Staff to Representative John Coghill
State Capital, Rm 102
Juneau, AK 99801-1182
Melissa Fouse
Executive Director, Alaska Academy of Trial Lawyers
rd
813 W. 3
Anchorage, AK 99501
POSITION STATEMENT: Opposes HB 111
Donna McCready
President, Alaska Academy of Trial Lawyers
th
1130 W. 6
Anchorage, AK 99501
POSITION STATEMENT: Opposes HB 111
Beverly Nester
5465 Chena Hot Springs Road
Two Rivers, AK 99712
POSITION STATEMENT: Supports HB 111.
Tamara Larry
1853 Bridgewater Dr.
Fairbanks, AK 99709
POSITION STATEMENT: Supports HB 111.
Gabrielle Larry
1853 Bridgewater Dr.
Fairbanks, AK 99709
POSITION STATEMENT: Supports HB 111.
Joan Levenson
11876 Middle Bay Dr.
Kodiak, AK 99615
POSITION STATEMENT: Supports HB 111.
Sandy Shacklett
310 Harriette St.
Wasilla, AK 99654
POSITION STATEMENT: Supports HB 111.
Al Poindexter
P.O. Box 400
Homer, AK 99603
POSITION STATEMENT: Supports HB 111.
Robin Davies
1606 Roosevelt St.
Fairbanks, AK
POSITION STATEMENT: Supports HB 111.
ACTION NARRATIVE
TAPE 02-02, SIDE A
CHAIRMAN ROBIN TAYLOR called the Senate Judiciary Committee
meeting to order at 1:43 p.m. Present were Senator Therriault,
Senator Cowdery and Chairman Taylor. Chairman Taylor announced
the order of business would be CSSSHB 111(JUD)am.
HB 111-CIVIL LIABILITY AND LIVESTOCK
RYNNIEVA MOSS, Staff to Representative John Coghill, said that
Representative Coghill was the prime sponsor of HB 111. It is a
product of several meetings with people from 4-H groups and
several veterinarians from the Fairbanks area. The original
intent of HB 111 was to legislate common sense to the judicial
system. It came about because of at least 2 frivolous lawsuits
that occurred in the state in the last ten years. She noted that
after discussing the legislation with Senator Taylor,
Representative Coghill believed the bill needed work and they
were looking forward to working with him to accomplish that.
SENATOR TAYLOR was aware of the suit involving a lady with open
toed sandals who got stepped on by a horse at the state fair.
MS. MOSS said that occurred at the fair in Fairbanks. The other
incident occurred in 1996 during the Miller Reach Fire. The
Palmer Fair opened up its stables to livestock. A woman told
them her horse was easily spooked around other animals. They
warned her not to ride the horse but she did. It spooked and she
was bucked off and injured. She filed a lawsuit against the
Palmer Fair that was settled out of court.
SENATOR TAYLOR said in the case at Fairbanks a lawsuit was filed
but thrown out. They spent money, time and legal fees bringing
that suit and then it was thrown out. He wanted to know about
the Miller Reach case.
MS. MOSS said the Palmer Fair paid her $3500 in legal fees and
she dropped the case.
SENATOR THERRIAULT asked about the work with Senator Taylor's
office to identify a problem that needed an amendment.
MS. MOSS said the major problem was the bill did not include
gross negligence. There could be a case of gross negligence
where they would be exempt from a lawsuit and that was a big
flaw. What the bill was trying to address was people who go to
livestock activities knowing there is a danger.
SENATOR TAYLOR said that on page 2, line 26 it specifically
stated that the bill does not immunize people from liability if
they have acted grossly negligent.
MS. MOSS ascertained she was looking at version L of the bill
while he and Representative Coghill had been working with version
O.a.
SENATOR TAYLOR explained that the immunity provision on page 2
made certain no person could sue any other person for the listed
activities except if the party acted in gross negligence. Gross
negligence is a very high standard often equated with criminal
activity. It would be difficult to prove that somebody
intentionally had his or her horse jump up into the grandstand at
a fair or an audience at a parade. He gave a scenario involving
six Clydesdales on a parade route where someone throws out a
firecracker or a horn goes off and the horses were spooked into
the crowd. He said the way the bill was written if those horses
were to kill several people there would be absolutely no
liability. He thought that was a pretty strong public policy
call.
SENATOR COWDERY asked if the bill addressed the situation when a
person borrows a horse, was the owner responsible for that animal
or the person riding the horse.
MS. MOSS said the bill addressed activities it did not address
ownership of a horse.
SENATOR COWDERY asked if he borrowed Senator Taylor's horse and
it kicked somebody would Senator Taylor be the one responsible.
MS. MOSS said if an owner allowed a person to ride a horse in a
horse show then there would be no liability if the person were
injured.
SENATOR TAYLOR said the intent of the bill was to make certain
that sponsored events would not have to acquire huge amounts of
insurance. He pointed out that the definition of livestock
activities on page 4 included livestock training or teaching
activities which could take place in somebody's pasture. On line
18, boarding or pasturing of livestock would give complete
immunity to any person who has a horse out in their pasture
whatever occurs. If they had rotten fences or the fences were
down that would be negligence, but would not necessarily be gross
negligence.
SENATOR TAYLOR said the bill included the inspecting of livestock
and the driving, riding, traveling, or other livestock activities
of any type, however informal, that are sponsored by a livestock
activity sponsor. He said a sponsor could put their horse in a
trailer and have an accident along the way without liability.
MS. MOSS said if that was correct it needed to be changed because
the intent was for this limited liability to be effective during
a sanctioned horse show.
SENATOR TAYLOR said the language "boarding and pasturing
livestock" was awfully broad. It would include every single
person that has any kind of livestock in a field in the state.
SENATOR THERRIAULT asked if she had worked with the legislative
drafters to narrow the scope.
MS. MOSS said they had worked with several groups and she felt
part of the flaw with the bill was there were too many hands on
it. They were coming to Senator Taylor for guidance to fence
what it is they really want to do.
SENATOR THERRIAULT thought there were interests trying to make it
so broad it was breaking down under its weight. They needed to
draw constraints on the limitation on liability.
MS. MOSS said the intent of the meeting was to take some
testimony and from that testimony work with Senator Taylor to
develop a committee substitute.
SENATOR THERRIAULT said he was supportive of the idea.
CHAIRMAN TAYLOR thanked Ms. Moss, Representative Coghill and the
involved groups for bringing the bill forward.
MELISSA FOUSE, Executive Director, Alaska Academy of Trial
Lawyers, said they, as an organization, have some concerns with
the bill. She introduced the Academy's President to discuss
those concerns.
DONNA McCREADY, President, Alaska Academy of Trial Lawyers, said
she agreed with many of the comments that Senator Taylor made.
She understands there have been two cases in the last 10 years
and one was disposed of in the proper manner. She discussed Rule
82 and Rule 68 where the party that is not prevailing has to pay
attorney fees to the other side. That is a disincentive to bring
frivolous lawsuits. The problem the bill wants to address is too
all encompassing and would cause more harm than good. She was
concerned about immunizing a large group of activities or some
segment of the population from being personally responsible for
wrongful or negligent acts and whether that is really necessary.
A trial lawyer has to prove negligence, causation and harm great
enough to make it worthwhile to bring a lawsuit. Litigation is
expensive.
SENATOR TAYLOR said he was going to take testimony and have an
additional hearing to do a final markup. He intended to move a
form of the bill out of his committee that would provide some
form of limitation on liability for those organizations and
sponsoring organizations that are attempting to put on events in
the state. One problem was perception, accurate or not, of
specious law suits being brought. Another being the insurance
industry uses these specious bits of litigation to overcharge for
a liability policy. The committee would be very appreciative of
assistance from her organization.
SENATOR THERRIAULT asked Ms. McCready if their organization knew
if there were other states which had limited liability in this
area in some common sense way.
MS. FOUSE said they were doing some research on that and
contacting some parallel organizations in other states.
SENATOR TAYLOR explained there are several states that have open
range laws and closed range laws based on whether agricultural
animals can be allowed to wander or must be fenced. States came
up with different solutions. This bill was patterned after
Oklahoma and he would submit to the committee the research that
had been collected.
SENATOR THERRIAULT said in reference to Rule 82 he didn't want
people to think if they were the winner they would get repaid all
their expenses, because that is not what Rule 82 does.
SENATOR COWDERY asked if this would help the public attain
liability insurance for special events and if livestock had been
defined.
SENATOR TAYLOR said that special events would not need any
insurance. Livestock was defined on page 4, line 7 and included
cow, bison, hog, sheep, goat, musk-ox, yak, pig, caribou,
reindeer, elk, rabbit, hamster, guinea pig, turkey, chicken,
pheasant, peafowl, pigeon, duck, horse, donkey, camel, llama, or
alpaca; does not include dog or cat.
BEVERLY NESTER, Two Rivers resident, wanted the definition of
livestock to include mules, moose, common zoo animals and pet
shop animals or say livestock is any domesticated animal and/or
pet other than dogs or cats. She wanted in the definition of
livestock activity the words "is not limited to" after the word
includes because she felt it was impossible to list every single
event or activity.
She had been informed that pastured livestock are an "attractive
nuisance" and people have no protection against kids crawling
through fences and getting injured by an animal. She supported
limiting liability for many activities.
TAMARA LARRY, 4-H Assistant Leader, said her group project was to
research and advocate for the introduction of HB 111 and to
follow its progress. In helping to develop HB 111 they
researched bills in 44 other states and talked to a University
lawyer. They think people who place themselves in the vicinity
of livestock should assume responsibility for any injuries that
occur unless gross negligence is involved.
SENATOR TAYLOR said the current bill did include gross
negligence. He expressed concern over the broad activities it
included. He wanted to get a bill out that would take care of
the 4-H, rodeos and fairs.
GABRIELL LARRY, Fairbanks resident, felt she was putting herself
and others in her family at risk because of lawsuits that are
potentially draining. The bill was important and similar to
those in other states. She gave examples of past problems and
explained the loss of a 4-H program run by Dr. Dee in Fairbanks
for children who did not have horses.
JOAN LEVENSON, Kodiak 4-H Club, said she is a horse leader and
involved with Kodiak's rodeo and fair. She supported the bill
and believed it was very important because it would allow them to
do more with their horses.
CHAIRMAN TAYLOR asked if they had had any accidents in Kodiak
involving people riding horses along roadsides. He said there
had been two serious accidents in Ketchikan due to narrow
shoulders along the road. In one case a horse had shied and
leaped out in front of an oncoming car. Under this bill if a
horse leaps out in front of a car and people are killed no one
would be liable.
MS. LEVENSON said in Kodiak they do not have that problem because
they have trails alongside the roads, but maybe that needed to be
addressed in the bill.
CHAIRMAN TAYLOR did not know if everyone intended the bill to go
that far. It had grown beyond protecting 4-H clubs.
SANDY SHAKLETT, Publisher, Alaska Horse Journal, said the
roadside incident would be considered reckless which would not
exempt the person from a lawsuit. There are markers available
for riders to wear in the dark so they can be seen. If a horse
was not broken to ride and used to traffic it should not have
been ridden along the road.
SENATOR TAYLOR said that was the difference in the standard
between gross negligence and simple negligence. He asked her
about the scenario involving the Clydesdales in the parade.
MS. SHACKLETT read from the bill (page 2, line 25). This section
does not affect a civil action for damages resulting from gross
negligence or reckless or intentional misconduct. She thought
that would fall into reckless behavior.
SENATOR TAYLOR said reckless is that which is life endangering
and you know it to be life endangering before you do it.
TAPE 02-02, SIDE B
MS. SHAKLETT said there is a responsibility that participants
make sure an animal is safe for the activity and, if they did
not, she would go back to the clause where that would be reckless
or intentional misconduct.
SENATOR TAYLOR said they would have to prove that the person knew
the horse was not fit and it would be difficult to establish.
The word reckless is a major hurdle to go over.
SENATOR COWDERY read from page 3, line 19; a person may agree in
writing to waive the right to recover damages. He asked if that
would hold up in court.
SENATOR TAYLOR said that would not necessarily hold up though it
would give it more strength.
MS. SHAKLETT said readers had been contacting her continually
about this bill and everyone had been in favor of it. She said
there might be a need for some changes but it would have a
positive effect on people who participate in livestock
activities.
AL POINDEXTER, Homer Soil & Water Conservation District, said
there was broad support for the bill in Homer and people who had
wanted to attend were unable due to weather.
All of his four children were involved with 4-H and Future
Farmers of America (FFA). He said people who raise horses and
other livestock for kids to learn with and on are limited or
curtailed by the liability or the lack of ability to get
insurance. The intent of the bill is to enable them to pursue
some of these wholesome activities without trying to come up with
funds for insurance.
SENATOR TAYLOR asked if 4-H had an insurance program they
provided to member organizations for a nominal fee. He thought
one was available and wondered if the cost was causing activities
to be restricted.
MR. POINDEXTER was not sure, but informed them that the
sponsoring organization of 4-H is the Cooperative Extension
Service for the University of Alaska. FFA is normally run by the
Department of Education through the school system. He assumed
the children were insured in the same way as other school
activities.
He said dogs and cats are not covered in the bill, but some 4-H
children are involved in two activities - training Seeing Eye
Dogs and showing dogs. Children also mush dogs and give people
rides on the sleds. He wanted to know why dogs were not part of
the bill. He reiterated that all the groups in Homer support the
bill, however, the language might need some changes.
SENATOR THERRIAULT said Mr. Poindexter's comments led him to
believe he was supportive of limitation of liability on
activities. Senator Therriault said as a citizen he could think
about an activity, evaluate it and understand there would be
livestock there and there would be an inherent risk if he chose
to go to that activity. Because of that risk he might choose not
to go to that activity. He saw a difference between that kind of
reasoned process and driving a car down a public right-of-way and
coming around a corner and finding livestock there. He asked Mr.
Poindexer if he saw a differentiation between those activities.
One was an official kind of livestock activity where he could
choose to go or not go, the other being where you just happen
upon livestock. He thought it was Senator Taylor's intention to
try and differentiate between those two.
MR. POINDEXTER believed what they wanted to do was make sure that
activities can occur and sort of be protected because people
understand that there is some inherent danger in choosing to
participate and are therefore accepting that responsibility. He
believed there was a difference between a horse going down the
road at night and someone choosing to go to a rodeo or 4-H show
at a fair.
ROBIN DAVIES, Fairbanks 4-H Leader, informed the committee that
Risk Management for the University of Alaska covers the insurance
for 4-H. Her 4-H group talked with Risk Management a year ago
and they were shocked to find out that the horse is not covered.
If the horse was to kick another child and the child was a 4-H
member they would be covered but the horse was not covered.
Fairs have spectator insurance that would cover any spectators.
SENATOR TAYLOR said the reason they have the Risk Management
section at the University and with the State of Alaska is because
they both decided years ago they were not going to be ripped off
by the insurance industry. Risk Management handled all their
claims because it is a lot less expensive to be self-insured. He
would contact them to get information and also the people at the
fair to get information about spectator coverage.
MS. DAVIES said covering sponsored activities was the intent of
the bill but was concerned about there being sponsored activity
that would not be covered.
SENATOR TAYLOR said they would have a subsequent hearing on the
bill probably in the next week or two. It was his intent to get
this to the floor for a vote in time to get it back to the House.
MS. DAVIES said it was not their intent to not carry insurance.
Her insurance company would not put it in writing that her horse
was covered though they said it is.
SENATOR COWDERY said many Homeowners Policies covered animals and
pets.
MS. DAVIES said the insurance company said they were covered but
would not put it in writing. She knew of people who's insurance
companies had dropped them as soon as they found out they had
horses on their property.
She said the reason they did not put dogs on the bill was because
the sled dog issue is such a difficult one they thought that dogs
needed to be dealt with in a separate bill.
SENATOR TAYLOR thanked all those who had participated. He
adjourned the meeting at 3:00 p.m.
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