SB 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. HCS CS SB 44 (FIN) was reported out of Committee with "individual recommendations" and with zero fiscal notes by the Department of Labor, the Alaska Court System dated 2/09/94, the Department of Commerce and Economic Development dated 2/09/94, the Department of Administration dated 2/09/94 and the Department of Natural Resources dated 2/09/94. SENATE BILL 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." PATTIE RIZER, REPRESENTING SELF, ANCHORAGE, testified that SB 44 was based on the presumption that the current law is no good. The current law has been evaluated by the Supreme Court and has stated that ski area operators would be held accountable, just like a land owner. Ms. Rizer spoke in opposition to the legislation. She remarked that the "inherent risk" of the current skiing law is the same as the state of Utah. She pointed out that the proposed legislation would not consider children and their safety. The legislation proposes that children have the same rules as all other skiers on the mountain. Representative Parnell explained the differences between the two work drafts before the Committee. [Copies on file]. He spoke specifically to the "U" version, #8-LS0340\U, Ford, 4/20/94 commenting on the proposed comparative negligence on part of both the skier and the operators and explained that language which addressed those inherent risks. Representative Brown asked the page reference of the 2 "inherent risk" language. Representative Parnell pointed out that language on Page 3, Lines 18-24. Ms. Rizer stressed that the safety of children had not been addressed in the legislation. She added that the main sponsor of the bill is Seibu Corporation, who owns and operates the Alyeska Ski area. She commented that Seibu has a vested interest in the legislation passing for protection against future lawsuits resulting from negligence on the part of the operators. Representative Therriault remarked that small ski operations in his district support the legislation. Ms. Rizer replied that insurance rates are dropping and that most small operators are not aware that a law currently exists. She urged Committee members to consider who would receive the limited liability that the legislation proposes. Representative Brown asked how the legislation could be modified in order to address the impact on children. Ms. Rizer acknowledged that "judgement" is an element that most children do not have. She recommended inserting "rebuttable" before "presumption" to Page 12, Line 24. PAUL SWANSON, MANAGER, EAGLECREST SKI AREA, JUNEAU, spoke in support of the legislation noting that it would define the responsibilities of the ski areas. He continued that in the past five years there have been no lawsuits made against the Eaglecrest Ski area. Mr. Swanson added that insurance costs currently average $75 thousand dollars a year. CRAIG LINDH, REPRESENTING SELF, JUNEAU, testified in support of the legislation interjecting that it would identify the responsibilities of the skier and the ski area operators. DENNIS MESTAS, (TESTIFIED VIA TELECONFERENCE), ATTORNEY, ANCHORAGE, commented that the work of the Finance subcommittee provided a more balanced version of the legislation although he still would not support the bill. He emphasized that the most important aspect of the legislation was that it did not differentiate between the judgement of a child and an adult. The bill proposes that the child skier be held to the same standard judgement as an adult skier. He specifically recommended changes to Page 11, Section 05.45.100, which clarifies the duties and responsibilities of skiers. Co-Chair MacLean noted her objection to the Finance subcommittee work draft. SB 44 was HELD in Committee for further discussion. 3 (Tape Change, HFC 94-136, Side 1). SENATE BILL 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." Representative Parnell MOVED that #8-LS0340\U, Ford, 4/20/94, be the version before the Committee. There being NO OBJECTIONS, it was adopted. Co-Chair MacLean MOVED to adopt Amendment #1 which would delete all material on Page 14, Lines 17-30 and insert a new section defining the inherent danger and risk of skiing. Representative Navarre OBJECTED. Representative Parnell advised that the language of the amendment was too broad and would open the possibilities for litigation. Mr. Mestas advised that the language proposed in Amendment statute with particular emphasis on man-made hazards. MARK BOND, INSURANCE DEFENSE LAWYER, ANCHORAGE, spoke in support of the legislation and against the amendment. He pointed out that the proposed legislation follows verbatim the Colorado statute listing of inherent risks of skiing. A roll call vote was taken on the MOTION. IN FAVOR: Grussendorf, MacLean. OPPOSED: Martin, Navarre, Parnell, Therriault, Brown, Foster, Hanley, Larson. Representative Hoffman was not present for the vote. The MOTION FAILED (2-8). Co-Chair MacLean MOVED to adopt Amendment #2 which would insert the language: "A ski area operator is responsible if the ski area operator's own negligence is a cause of an injury or death". Representative Parnell OBJECTED. Mr. Mestas responded that he would support the amendment and thought that it was a fair representation and disclosure of the law noting that it would require the skier to be informed of the law. Mr. Bond disagreed emphasizing that the purpose of the 4 warning signs would indicate to the skier that there are inherent dangers and risks to skiing, listing the categories and informing the skier of possible injuries which could result. A roll call vote was taken on the MOTION. IN FAVOR: Brown, Grussendorf, Larson, MacLean. OPPOSED: Martin, Navarre, Parnell, Therriault, Foster, Hanley. Representative Hoffman was not present for the vote. The MOTION FAILED (4-6). Co-Chair MacLean MOVED TO WITHDRAW Amendment #3. There being NO OBJECTION, it was withdrawn. Representative Brown MOVED to adopt Amendment #4 which would clarify that the Commissioner of Natural Resources would designate a "member of a ski patrol designated by the ski operator who is qualified as described under AS 05.45.040(b) and authorized by the commissioner". [Copy on file]. The amendment would also add the following language to Page 13, Line 9, "within a ski area over which the State has jurisdiction". Representative Parnell OBJECTED. RON SWANSON, DIRECTOR, DIVISION OF LANDS, DEPARTMENT OF NATURAL RESOURCES, clarified that a provision similar to this already exists within Title 41, a park statute for the commissioner to deputize employees of the State. The ski patrol and operators would be accountable for enforcement which would be regulated by the commissioner. JOHN HEISER, AYLESKA RESORT, ALASKA SKI AREAS ASSOCIATION, ANCHORAGE, explained that language would depend on each ski area and who owned the land. Representative Brown stressed that it would be the obligation of the designee to issue a citation for recklessness. She added that if a person was skiing on state land, the Department would have the responsibility to enforce that law. Mr. Bond spoke in support of Section #2, Amendment #4. Mr. Swanson testified that the Department strongly supports Amendment #4 as it protects the rights of state owned land. Representative Parnell MOVED to divide Amendment #4. There being NO OBJECTION, it was divided. Representative Parnell MOVED to adopt Section #2, Amendment 5 Representative Brown MOVED to adopt Section #1, Amendment A roll call vote was taken on the MOTION. IN FAVOR: Navarre, Brown, Grussendorf, Larson, MacLean. OPPOSED: Parnell, Therriault, Foster, Hanley, Martin. Representative Hoffman was not present for the vote. The MOTION FAILED (5-5). Representative Brown MOVED to adopt Amendment #5 which would insert a new subsection to read "(I) In relation to a child below the age of 10, it shall be up to the fact finder to determine whether the duties of AS 05.45.100 are owed by the child given the age, experience and judgement of the child." She explained that the amendment address the question if children have the appropriate judgement presumed in the legislation. Representative Brown urged Committee members to consider how this legislation will impact the child skier. Mr. Mestas advised that currently the law states, for matters which involve personal injury, a child does not have the legal duty for judgement. The jury or judge is always allowed to consider the age, experience or judgement of the child in determining whether that child should be considered comparatively negligent. Mr. Mestas suggested that the age of the child referenced in Amendment #5 should be changed to 14 years old. (Tape Change, HFC 94-136, Side 2). Mr. Bond responded that in the statutes, there are different age standards of applications for the criminal and from which the criminal law makes the contracts. The question of the courts when dealing with personal injury claims is not whether a child has a duty, but the degree of that duty. He noted that the amendment would not be limited to personal injury claims while exempting the child from basic ski etiquette. Mr. Heiser added that the ski industry will provide instruction for the young skiers at the responsibility of the parent. Representative Martin questioned the parent's responsibility for the unaccompanied child when skiing. Mr. Mestas responded that the legislation would remove the 6 standard liability statute and stressed that it would be presumptuous to assume that the court would not apply the law to children. Representative Brown MOVED to change the age identified in the amendment by deleting "10" and inserting "13". There being NO OBJECTION, "13" was adopted. Representative Brown MOVED to adopt Amendment #5. Representative Martin OBJECTED. A roll call vote was taken on the MOTION. IN FAVOR: Brown, Grussendorf, Navarre, MacLean, Larson. OPPOSED: Parnell, Therriault, Foster, Hanley, Martin. Representative Hoffman was not present for the vote. The MOTION FAILED (5-5). Representative Brown MOVED TO RESCIND action in failing to adopt Amendment #4, Section #1. Representative Martin OBJECTED. Representative Parnell asked if the amendment would require the ski area operator to implement it. Mr. Swanson stated that the Department supports the amendment although it would not force implementation upon any ski operator. He added that there would be no fiscal impact to the State. Representative Brown WITHDREW THE MOTION to rescind action on adopting Amendment #4, Section 1. There being NO OBJECTION, it was withdrawn. Representative Brown MOVED to adopt Amendment #6 which would insert "person designated by the ski operator who is authorized by the commissioner" to Page 13, Line 6. There being NO OBJECTION, it was adopted. Representative Parnell MOVED to report HCS CS SB 44 (FIN) out of Committee with individual recommendations and with the accompanying fiscal notes. There being NO OBJECTIONS, it was so ordered. HCS SC SB 44 (FIN) was reported out of Committee with "no recommendations" and with zero fiscal notes by the Department of Labor, the Alaska Court System dated 2/09/94, the Department of Administration dated 2/09/94, the Department of Commerce and Economic Development dated 2/09/94 and the Department of Natural Resources dated 7 2/09/94. SENATE BILL 247 "An Act relating to state leases and to state lease-purchase and lease-financing agreements, and repealing a legislative authorization previously given for acquisition of a facility through a lease-purchase agreement; and providing for an effective date." Representative Therriault maintained his objection to changing the tile to incorporate Amendment #1 in the title. ARTHUR SNOWDEN, DIRECTOR, ADMINISTRATION, JUDICIAL BRANCH, ALASKA COURT SYSTEM, noted that the amendment would add a repealer and that the current title would not be broad enough to cover that action. Representative Therriault MOVED to divide the question between the two amendments. Co-Chair MacLean OBJECTED. A roll call vote was taken on the MOTION. IN FAVOR: Foster, Grussendorf, Navarre, Therriault, Brown, Larson. OPPOSED: Hanley, Martin, Parnell, MacLean. Representative Hoffman was not present for the vote. The MOTION PASSED (6-4). The Committee HELD the bill in order to discuss with the drafter any action needed to conform the bill to previous action by the Committee. SB 247 was HELD in Committee for further consideration.