Legislature(1993 - 1994)
01/19/1993 01:30 PM Senate L&C
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
SENATE LABOR AND COMMERCE COMMITTEE
January 19, 1993
1:30 p.m.
MEMBERS PRESENT
Senator Tim Kelly, Chairman
Senator Steve Rieger, Vice-Chairman
Senator Drue Pearce
Senator Georgianna Lincoln
Senator Judy Salo
COMMITTEE CALENDAR
SENATE BILL NO. 44
"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."
PREVIOUS SENATE COMMITTEE ACTION
SB 44 - NONE
WITNESS REGISTER
Josh Fink, Committee Aide
Senator Tim Kelly
State Capitol
Juneau, AK 99801-1182
POSITION STATEMENT: Testified on SB 44.
John Heiser, Director
Mountain Operations
Alyeska Resort
Olympic Circle
Girdwood, Alaska 99587
POSITION STATEMENT: Supported SB 44.
Timothy J. Lamb, Attorney
representing Seibu, Alyeska Resort
Delaney, Wiles, Hays, Reitman & Brubaker, Inc.
1007 West 3rd Ave.
Anchorage, Alaska 99501
POSITION STATEMENT: Supported SB 44.
Bruce Rizer
5530 Rabbit Creek Road
Anchorage, Alaska 99577
POSITION STATEMENT: Opposed SB 44.
Paul Swanson, Manager
Eaglecrest
P.O. Box 34878
Juneau, Alaska 99803
POSITION STATEMENT: Supported SB 44.
Al Clough, Attorney
City & Borough of Juneau
Box 24003
Douglas, Alaska 99824
POSITION STATEMENT: Supported SB 44.
Leroy Cabana
6100 Andover Circle
Anchorage, Alaska 99516
POSITION STATEMENT: Opposed SB 44.
Claudia Bieber
16450 St. James Circle
Anchorage, Alaska 99516
POSITION STATEMENT: Opposed SB 44.
Patti Rizer
5530 Rabbit Creek Road
Anchorage, Alaska 99577
POSITION STATEMENT: Opposed SB 44.
Lex Patten, Coach
Alyeska Ski Club
449 Dailey #17
Anchorage, Alaska 99515
POSITION STATEMENT: Supported SB 44.
ACTION NARRATIVE
TAPE 93-2, SIDE A
Number 001
CHAIRMAN TIM KELLY called the Labor and Commerce Committee
meeting to order at 1:30 p.m.
SENATOR KELLY introduced his bill, SB 44 (CIVIL LIABILITY
FOR SKIING ACCIDENTS), and opened the teleconference with
Anchorage.
SENATOR KELLY then directed his committee aide, JOSH FINK,
to familiarize the committee with the legislation. MR. FINK
explained the legislation would strike a balance between
protecting skiers and the ski resort operators, by removing
ski resort operators from liability from injuries caused by
inherent risks and dangers of skiing.
MR. FINK assured participants it didn't absolve ski area
operators from negligence as defined by the legislation, and
would require ski area operators to prepare and obtain
approval of a safety and operations plan from the
Commissioner of Public Safety or the land management agency
of the federal government. He said SB 44 would require ski
area operators to provide a ski patrol with qualifications
meeting or exceeding the standards of the National Ski
Patrol program.
In addition, MR. FINK said it would require ski resort
operators to establish and maintain a tramway sign system
and a sign system for ski trails and slopes intended to
instruct skiers on the difficulty of the trail or slope. He
further explained the legislation could have an economic
impact in Alaska by lowering insurance costs to ski resort
operators through out the state, hence lowering the cost of
tickets.
MR. FINK said SB 44 recognized the inherent risks of skiing
with balancing the rights of skiers and ski resort
operators. He said the legislation could encourage
continuing development of ski resorts in Alaska. MR. FINK
said the bill had zero fiscal notes from the Department of
Commerce and Economic Development and the Court System.
Number 026
SENATOR KELLY addressed the participants on the legislative
teleconference network in Anchorage. He was told that TIM
LAMB, the attorney for the company, Seibu, and the Alyeska
Resort, would be testifying from Anchorage, while JOHN
HEISER, the Director for Mountain Operations for the Alyeska
Resort would be testifying first from Juneau. SENATOR KELLY
checked to be sure those testifying in Anchorage could hear
the Juneau testimony and asked MR. HEISER to be identified.
MR. HEISER testified in support of SB 44, which he said
would make skiers more responsible for the inherent risks of
skiing, and ski operators more responsible for negligence on
their part. He stressed the legislation was not "anti-
anybody," but was a pro-economic development bill supported
by the Governor, the Anchorage Economic Development
Corporation, the Anchorage Convention and Visitors Bureau,
the Alaska Visitor's Association, the Alaska Hotel/Motel
Lodging Association, the Alaska Carpenter's Union, and
several ski areas around the state, and he proffered letters
of support.
SENATOR KELLY requested MR. HEISER to read into the minutes
the support letters: Anchorage Convention & Visitors
Bureau, Alaska Visitors Association, Anchorage Economic
Development Corporation, United Brotherhood of Carpenters,
Joiners of America, Local Union 1281, Alaska Hotel/Motel
Association, Days Inn, and the Westmark Hotels.
MR. HEISER continued to explain the merits of the bill in
relation to the duties of the ski area operators, the
enhancement of the ski slopes, and the reduction of
insurance rates for the ski developments that comply with
the known requirements, especially after it is well
established that claims arising from the inherent risks of
incidents could be resolved by summary motions.
MR. HEISER described the typical terrain of the ski slopes
with all manner of variations, the vagaries of the weather,
and the highly athletic sport of skiing, which, he said,
required good physical conditioning and quick reflexes. He
continued to describe the difficulties encountered in the
sport of skiing which could not be controlled, and where all
patrons cannot be protected from injuries.
Number O75
MR. HEISER reported on Alyeska's enviable safety record when
compared with other ski areas in the United States, and he
recited comparable statistics with other ski areas. He
claimed the ski accidents at Alyeska have consistently
remained well below the national average. Despite their
positive safety record, Alyeska spends a substantial amount
of money each year defending claims, which number 6 to 8
open files at this time with a net claim exceeding $2
million.
MR. HEISER reviewed the reasons why a relatively safe ski
resort like Alyeska accrued high legal fees and insurance
fees, citing the lack of protection against claims arising
from skiing. He described the types of injuries in terms of
the risks of skiing - with any injured person as a possible
claimant and the award potentially large.
MR. HEISER said that if Alaska was serious about attracting
and developing winter tourism, then it was imperative the
legislation provide a level playing field with other
competitive states or nations with better protection from
litigation.
Number 101
SENATOR KELLY paused to introduce all of the committee
members including those who just entered. Because of the
number of possible questions, SENATOR KELLY did not think
the bill would leave committee this day.
SENATOR PEARCE questioned MR. HEISER on future cases filed
against any ski slopes in the state with the passage of the
legislation. He explained how it would assist in activating
summary judgments to avert selected claims from going to a
jury trial.
MR. HEISER outlined the use of the summary judgement motion
which would necessitate information about the accident as to
who was responsible. The judge would make a ruling on the
motion as to whether it should go to trial, or whether it
would be covered by the law. To questions from SENATOR
PEARCE, MR. HEISER explained why the summary judgement could
not now be made.
SENATOR SALO asked for MR. HEISER'S perception of the
resort's liability and responsibility in regards to terrain,
whether natural or artificial hazards. He described
possible hazards and whether or not they could be
controlled, and he defined some of the hazards as
corrections in areas to improve safety - such as roads and
lift towers.
Number 149
SENATOR SALO expressed concern at the breadth of MR.
HEISER'S definition of inherent risk in regards to terrain
since she thought it was possible to mitigate the hazards.
She cited grooming trails and picking up junk as an example
of this mitigation.
SENATOR SALO gave a hypothetical example of something being
left on the trail, such as a broken tire from a vehicle. It
snowed during the night, and she hit the tire the next
morning on her first run, suffering an injury. She
questioned the legal ramifications under the definition of
the inherent danger and risk of skiing in SB 44, and whether
she could bring a suit.
SENATOR SALO was assured by MR. HEISER that she could file a
claim and would probably not fall into the inherent risk
category, but he said, a skier has a certain responsibility
to avoid hazards just as a driver does.
SENATOR KELLY asked for questions, and SENATOR RIEGER said
he had questions for the lawyer, TIM LAMB, on line from
Anchorage.
SENATOR RIEGER asked about the reference to applying a
standard of comparative negligence and how it would work.
MR. LAMB explained how the jury could apportion the fault
between the parties in the accident, where a skier may have
exercised poor judgement or the ski resort may have been
partially to blame for the hazard. He explained how the
jury would split the judgement on comparative negligence.
Number 194
SENATOR RIEGER followed with a speculative claim of $100 by
an injured skier, and the jury determined the skier was 80%
at fault, with the resort 20% at fault. He asked if the
skier would be awarded $20, and MR. LAMB thought that would
be correct. He explained how difficult it was currently to
get a summary judgement without changing the statute, and he
blamed the supreme court for a loose interpretation.
MR. LAMB referred to the use of the comparative negligence
doctrine in the Hiibschman v. City of Valdez case, which, he
said, has made courts reluctant to grant summary judgments.
He discussed the merits of the proposed legislation which
would take into consideration careless mistakes by a skier.
SENATOR RIEGER asked MR. LAMB what phrase in the bill would
eliminate the jury trial and provide for a summary
judgement. MR. LAMB said the bill set out detailed
perimeters and specific requirements for both sides and
would prevent the codification of common law.
Number 250
SENATOR RIEGER suggested that it would in effect dismiss the
case, and MR. LAMB said it was almost impossible to get a
summary judgement. SENATOR RIEGER had questions as to the
extent of flagging and signing, and MR. LAMB praised Alyeska
for doing more of this than most states. He expected the
flagging and signing to be continued in the new legislation,
and he said Alyeska did more prevention than required.
SENATOR RIEGER, in reference to the top of page 4, asked for
clarification between Sec. 05.45.010 and Sec. 05.45.020 as
to the prevention of accidents. He decided to leave his
questions for the drafter.
Number 300
SENATOR PEARCE, in reference to page 4, line 11, thought
the $150 thousand in legal fees was low, and she asked MR.
HEISER the percent that represented operating costs. MR.
HEISER updated the current legal costs since 1989 to $200
thousand and the correct claimant fees to being over $2
million in reserves and claims and said it could be any
where from 8 to ten percent of the operation costs. He said
the number of small ski areas had diminished because of the
increase in litigation and insurance costs.
SENATOR SALO questioned MR. HEISER in reference to page 3,
Section 12, line 4 about being "impractical to expect the
operator to eliminate or mitigate these hazards, and skiers
must accept these hazards as part of the risks of the
sport." MR. HEISER explained there were many hazards that
were difficult or impossible to mitigate because of terrain
and other variables.
Number 350
SENATOR KELLY wanted to know more specifically about the
hazards, and MR. HEISER explained the hazards in the main
heavily traveled skiing areas were mitigated, but the areas
where the more capable skiers use have less mitigation. He
praised Alyeska for its signing, roping, and padding in the
heavily used areas. He outlined their strict guidelines,
insurance inspections, and inspections by such departments
as the Forest Service and the Department of Labor.
SENATOR LINCOLN noted a group of trial lawyers in opposition
to SB 44, and she asked if MR. HEISER was aware of any other
groups in opposition. He was not aware of any opposition at
this time. SENATOR KELLY said there was those in opposition
to testify.
SENATOR KELLY invited BRUCE RIZER in Anchorage to testify.
MR. RIZER explained his personal interest in the bill since
his son, BART RIZER, was killed while skiing at Seibu's
resort, Alyeska, December 8, 1991. He claimed to be
defending the consumers, the general public, and his
personal interest. MR. RIZER asserted that the Alyeska
Resort signed contracts with the US Forest Service, which
specifically outlined obligations to be followed.
Number 403
MR. RIZER expressed his outrage at the practices he felt SB
44 would mitigate in the insurance regulations governing the
ski resort at Alyeska, as well as with the marking and
mitigation of hazards as they appear on the mountain. He
reviewed the laws and standards of other states in relation
to those in Alaska, especially Colorado. MR. RIZER accused
the resorts of wanting immunity from consumers, and to
protect a Japanese conglomerate from claims and
responsibilities.
Number 451
MR. RIZER explained that much was made concerning the
inherent risk of skiing as defined by the ski resorts and
MR. HEISER, and he deplored the resistance to accepting
responsibility. He stressed the operational plans
promulgated by the U.S. Forest Service for Alyeska and
approved by Department of Labor and the Department of Safety
before the beginning of the season.
MR. RIZER spoke disparagingly of the perceived lack of
responsibility by Alyeska, and he accused Alyeska of trying
to circumvent a decision by the Supreme Court mandating
accountable for negligence. He stressed the need for shared
responsibility between the skier and the ski area, but he
emphasized the need for the mitigation of hazards.
Number 499
MR. RIZER said he was totally against SB 44.
SENATOR KELLY returned to Juneau to hear from PAUL SWANSON,
the manager of Eaglecrest.
MR. SWANSON testified the ski area was responsible for
operating in a safe and reasonable manner and outlined the
inherent risks over which he said the operator has very
little control. He reviewed the problems of continuing to
operate if they were hit with a lawsuit, and he blamed the
ruling by the Supreme Court. MR. SWANSON gave similar
reasons as previous supporters for his backing of SB 44.
SENATOR KELLY questioned whether Eaglecrest had tower pads,
and MR. SWANSON responded they did, but the pads were not
required.
SENATOR RIEGER quoted MR. SWANSON as saying that action
mitigating a hazard would make the operator more liable than
if the hazard had not been mitigated. MR. SWANSON referred
to the Supreme Court ruling to sanction his point that
unless he mitigated the hazard to perfection, he would be
liable if it wasn't.
SENATOR LINCOLN asked MR. SWANSON if he saw the bill as
reducing insurance costs for liability, and MR. SWANSON said
he thought it would define the liabilities for both the
skier and the operator. She asked if he thought the bill
would include cross country skiing, and MR. SWANSON thought
there should be an expanded list of winter sports in the
bill.
TAPE 93-2, SIDE B
SENATOR LINCOLN said she was looking for a better definition
of skiing areas in the bill.
SENATOR KELLY called on AL CLOUGH, Juneau Assembly member,
ski instructor, past president of the Eaglecrest Board of
Directors, and today speaking on behalf of the City and
Borough of Juneau.
MR. CLOUGH said the City and Borough of Juneau supports SB
44 and believes the legislation would help define and
enhance winter recreation, specifically skiing throughout
Alaska. He testified as to the beginning of Eaglecrest as a
small operation that has grown to 50 thousand ski visits a
year.
MR. CLOUGH believes SB 44 defines the responsibilities of
the operator/owner and the skiing public, as well as
clarifying the inherent risks of the sport. He declared it
was not physically possible to totally mitigate or eliminate
the inherent risks of skiing in mountainous terrain that is
constantly changing.
MR. CLOUGH explained the lengths to which Eaglecrest
mitigates and eliminate hazards in high use areas with tower
pads, marking, and roping. He explained the bill would lay
out the risks, but would not absolve the ski area from
negligible acts.
MR. CLOUGH praised the operation at Eaglecrest as a
positive, although subsidized part of Juneau, with $50
thousand in insurance per year. He regarded the bill as
protecting Eaglecrest and other small skiing operations from
nuisance claims when people do not take responsibility for
their own actions. MR. CLOUGH praised the bill as
protecting and enhancing these small ski slope operations
across Alaska, and he offered the assistance of MR. SWANSON
to the committee.
Number 051
SENATOR PEARCE questioned MR. CLOUGH, in reference to page
5, subsection (B), whether there were national regulations
and training to deal with the required plan and patrol by
ski area operators. MR. CLOUGH said Eaglecrest adhered to
the national code and referred her to MR. SWANSON.
SENATOR PEARCE restated her question to MR. SWANSON who
assured her they followed the American National Standards
Institute code. There ensued a discussion between the two
about the code, insurance inspections, and a safety plan.
MR. SWANSON answered questions from SENATOR KELLY about the
ANSI code, the safety record at Eaglecrest, and whether the
record was certified by the state.
Number 124
MR. SWANSON explained they generated the record internally
and gave it to the national ski area operators' association
where the statistics are compiled.
SENATOR KELLY returned to Anchorage to hear testimony from
LEROY CABANA.
MR. CABANA, a commercial fisherman, explained he did not
have a personal interest in the bill, but was against the
bill because of what he considered escape by ski operators
of their liability. He asked for total insurance costs, and
their last known gross and wondered if they were quibbling
over dimes or dollars. SENATOR PEARCE shared her answer of
8 to ten percent of revenues from a previous question.
Number 151
SENATOR KELLY asked MR. HEISER if Alyeska would have reduced
ticket rates if SB 44 was passed. What would the public
receive from the legislation? MR. HEISER explained how it
would affect insurance costs which are passed on to the
consumers. SENATOR KELLY pushed as to whether there would
be decrease in the ticket costs, and MR. HEISER couldn't
promise the prices would go down, but it would keep the
increase to a minimum.
SENATOR KELLY asked how many deaths there had been at
Alyeska, and MR. HEISER said there had been one in-area
death and another out-of-area death. SENATOR KELLY asked
for a record of injuries, and MR. HEISER admitted to keeping
quite extensive records generated by insurance companies.
He described typical injuries of about 30 to 50 claims per
year.
Number 210
SENATOR KELLY asked MR. HEISER to run through a small claims
accident. MR. HEISER said they have a policy of not
settling such cases, so as not to set a precedence. He
explained how the claim could evolve into a an actual suit.
Then their legal department would be assembled for a series
of depositions, or they try for a summary judgement motion.
A trial might drag on for a couple of years before a
decision.
SENATOR KELLY asked if they ever settled out of court, and
MR. HEISER answered it was possible to settle a nuisance
amount if it could be settled for a reasonable cost.
SENATOR KELLY asked about a correlation with health
insurance, and MR. HEISER agreed that people with health
insurance rarely made claims on Alyeska.
Number 251
SENATOR RIEGER referred to back up material on the City of
Valdez case, and asked for an explanation as to where the
ski operator becomes partially liable. MR. LAMB, using the
example of the skier hitting a snow covered wheel, said it
could not be handled with a summary judgement motion and
would most likely go to trial where a jury would apportion
fault. He gave other examples to clarify the use of summary
judgement motion, as well as a jury trial when the resort
was at fault.
SENATOR RIEGER asked if the examples could be characterized
as those where the operators deviated from the American
National Standards Institute code. MR. LAMB explained how
it might be determined along with other factors, since the
code was not a sole determinate.
Number 303
SENATOR SALO asked MR. LAMB if his answer was given in the
context of the current statute or of the proposed
legislation. MR. LAMB explained that one of her previous
examples would lead to a jury trial either way. They
continued to discuss the differences in the current statute
and the proposed legislation, and MR. LAMB described using
the summary judgement provision to be relieved of paying
nuisance claims. He said a one week trial would run about
$75,000 until verdict with more intricate cases could run
$125,000 per week.
Number 347
When asked by SENATOR SALO about the cost of the yearly
insurance premiums, MR. HEISER answered about 8 to 10% of
operation costs per year. She asked how much it could it be
reduced, but MR. HEISER choose to express his concern at the
increase if the legislation did not pass. MR. LAMB entered
the conversation to explain the ski lodge paid a deductible
before the insurance would assume the costs. He gave an
additional overview of all the legal costs involved.
SENATOR KELLY, in response to a comment made by Mr. Lamb,
said the Rizer accident was not an injury but a death, and
MR. LAMB apologized.
SENATOR RIEGER returned to one of MR. LAMB'S injury examples
to ask if there would have been a convenience settlement,
and MR. LAMB said they had settled with $5 thousand on a $90
thousand medical bill.
Number 404
SENATOR PEARCE returned to the subject of the American
National Standards Institute code, saying she could find no
reference to the codes in the legislation. MR. LAMB
admitted to not having read the ANCI codes, but he described
the safety features on the hill, such as lighting, signs,
and closed areas.
Number 454
SENATOR PEARCE questioned him further about meeting the
codes, and he evoked the use of the jury in such cases. She
continued to push questions about the code, and MR. LAMB
discussed the code in terms of guidelines, and insurance
inspections. SENATOR PEARCE pressed him for additional
answers on the use of the code. Finally, MR. LAMB explained
that Alyeska was required to meet the ANCI standards under
its Forest Service permit.
Number 495
SENATOR PEARCE had some additional questions about unsafe
slopes and the right of legal action by the skier. MR. LAMB
said it would depend on how the injury occurred, and he
described the circumstances under which they would file for
a summary judgement.
SENATOR KELLY questioned MR. HEISER as to whether Alyeska
would be insured without inspection. He said they wouldn't
and were inspected three times a year, and he described the
inspection process.
SENATOR KELLY asked MR. SWANSON if Eaglecrest had an
insurance inspection each year, and he replied they did.
Number 499
MR. CABANA returned to the teleconference network to
continue his opposition to the legislation and his
expectation of mitigation for any hazards that could be
mitigated. He gave the example of a stump on the Alyeska
slopes that should have been mitigated - but wasn't.
(The second tape of this series did not record. The minutes
are taken from the tape log.)
SENATOR KELLY invited CLAUDIA BIEBER from Anchorage to
testify next.
MS BIEBER testified in opposition to SB 44, and began by
explaining why she thought Alyeska was a dangerous place to
ski. In addition to hazards, she said there were children,
unsupervised and out of control, where alcohol was being
served. MS BIEBER suggested an evaluation to determine what
was best for Alaskans.
Number 076
PATTY RIZER, mother of BART RIZER, who died on the slopes in
1991, spoke at some length in opposition to SB 44.
MS RIZER began by describing their life as it was entwined
in the community and the Alyeska ski slopes. She outlined
the use of ski lessons and their safety precautions.
Number 171
MS RIZER said the bill didn't help the consumer, and she
asked SENATOR KELLY questions about the risks of skiers, and
who monitored the ski industries. There was some discussion
with MR. HEISER about that area being unmarked. MS RIZER
reminded committee members that today (1/19/93) would have
been BART RIZER'S birthday.
Number 247
Last to testify was LEX PATTEN, a coach for the Alyeska Ski
Club, who urged support for SB 247. He said he understood
the inherent risks of skiing, but was concerned the programs
might be jeopardized without the legislation.
SENATOR KELLY concluded the committee meeting and said SB 44
would be held over until Thursday for additional work on the
bill.
There being no further business to come before the
committee, the meeting was adjourned at 3:30 p.m.
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