HB 32-IMMUNITY FOR RV PARKS, CAMPGROUNDS  3:55:20 PM CHAIR KREISS-TOMKINS announced that the final order of business would be HOUSE BILL NO. 32, "An Act providing civil immunity to recreational vehicle park owners for certain damages; and providing civil immunity from liability related to the inherent risks of camping." 3:55:40 PM REPRESENTATIVE GEORGE RAUSCHER, Alaska State Legislature, prime sponsor, introduced HB 32. He paraphrased the sponsor statement [included in the committee packet], which read in its entirety as follows: There are at least 152 privately owned RV parks and campgrounds across the state of Alaska. House Bill 32 seeks to provide these facilities immunity from civil liability related to the inherent risks in the outdoor environment. This is similar to current Alaska statues for inherit risk for the equestrian/livestock, skiing, and sports and recreation industries. The bill has a compressive list of natural features, conditions, and activities that may pose a danger or hazard and obligates the conspicuous signage and a warning included in any written contract with a guest of the campground. The civil liability immunity does not apply in the event off: - Negligence, recklessness, or intentional misconduct, or - Failure to post conspicuous signage as warnings of known hazards or conditions, or - Failure to include the warning in a written contract. The bill recognizes that there are inherent risks in camping that are beyond the control of the operator, and that the warnings and signage may increase safety for recreational users. 3:58:11 PM JESSE LOGAN, Staff, Representative George Rauscher, Alaska State Legislature, provided additional background on HB 32 on behalf of Representative Rauscher, prime sponsor. He reiterated that there are at least 152 privately owned RV parks and campgrounds in Alaska; furthermore, the RV Industry Association (RVIA) Economic Impact Study [included in the committee packet] indicated that in 2019, RV manufacturers & Suppliers, RV Sales & Service, and RV Campground and Travel accounted for almost 1700 direct and indirect jobs, $84 million in wages, and over $242 million in total economic output for Alaska alone. He pointed out that Alaskans have unprecedented access to the wilderness, which is one of the many reasons people visit the state. He continued to note that Alaska's unique location is accompanied by "unique dangers," including bears, moose, rocks, and branches. He referenced a document that listed examples of inherent risk lawsuits [included in the committee packet] enacted on private campgrounds in other states, specifically noting a claimant who was paid $608,867 after being attacked by a bear at a private campground, as well as a claimant who was paid $151,593 after alleging the campground failed to maintain safe conditions on the premises, causing her to fall when the walkway abruptly ended. He said the aforementioned examples illustrate that private campgrounds can and do get sued for injuries sustained for such things as tripping on natural objects that occur inherently in the wilderness. HB 32, he said, acknowledges that there is inherent risk in camping and puts RV parks and campgrounds "on the same level" as skiing, equestrian sports, livestock, recreational activities, and camping. He cited the 1994 Alaska Safety Skiing Act, AS 05.45.010 [Limitation on Actions Arising from Skiing], which prevents a person from bringing action against a ski operator for an injury resulting from an inherent risk of skiing, and AS 09.65.290 [Civil Liability for Sports or Recreational Activities], adding that HB 32 extends the same protections to RV parks and campgrounds. He said the RV industry is a large part of the state's economy, operating as part of the multi- billion-dollar Alaska tourism industry. He conveyed that HB 32 would help protect these locally owned businesses from lawsuit liability for things that are outside their control. Furthermore, he offered his belief that the proposed obligatory signage could help increase the safety and awareness of users. 4:01:40 PM LAURA SAXE, Owner, Eagle's Rest RV Park & Cabins; Chair, Alaska Campground Owner's Association, stated that HB 32 would help small RV parks and campgrounds grow their business to full potential by allowing more amenities for guests by lessening the fear of lawsuits. She shared, for example, that an owner might avoid installing firepits for fear of burns, playground equipment for fear of child injuries, docks for fear of drowning, or additional hiking trails for fear of bear attacks. She emphasized that civil liability immunity is not being requested for acts of negligence, recklessness, or intentional misconduct; however, she urged the legislature to grant campgrounds immunity from civil liabilities for {indisc.) damages resulting from the conditions expected from camping. She suggested that HB 32 provide immunity from civil liability for the inherent risk in camping, similar to current Alaska statutes for the inherent risk in equestrian, livestock, skiing, sports, and recreational industries. Those inherent risks, she said, include natural conditions, uneven terrain, bodies of water, lack of lighting in the campground, weather, wildlife, and campfires. She offered her belief that HB 32 would help grow the outdoor experience that guests are looking for. She added that as a park owner, her job is to meet and exceed her guests' expectations for camping in the great outdoors. Despite never having personally experienced these issues, she said it's better to be proactive now rather than after the fact. She reiterated that she is interested in inherent risk protection not protection from negligence. She opined that HB 32 would allow for more recreational activities for both Alaskans and visitors. 4:04:35 PM REPRESENTATIVE TARR referring to subsection (c) on page 3, lines 6-10, sought clarification on the legal ambiguity that may exist for self-pay locations. She asked if the liability protection for such locations had been considered. MS. SAXE said she has seen an increase in online check-ins since COVID-19 to lessen the possibility of exposure and maintain social distance. She explained that the online registration process for Eagle's Rest includes a list of conditions, rules, and regulations that, by clicking "accept," the user agrees to. She noted that each campground has different rules and regulations, as well as unique check-in processes. Nonetheless, she added that every campground owner should have rules and conditions that their guests agree to when they check in. REPRESENTATIVE TARR suggested clarifying the bill language in subsection (c) to encompass online check-ins. CHAIR KREISS-TOMKINS asked Mr. Fisher for his input on the matter. 4:08:24 PM SANDON FISHER, Attorney, Legislative Legal Services, Legislative Affairs Agency, explained that HB 32 requires that every written contract contain a warning. He offered his understanding that a contract entered online "where a writing is produced" would constitute a written contract. He added if the warning is included on the written contract executed between the parties online it would satisfy the requirements of the bill. Furthermore, HB 32 would not require the warning be provided if there is no written contract generated as drafted. He further noted that the bill does not provide the consequences of not including a warning in a written contract. REPRESENTATIVE TARR proposed a scenario in which a written contract, which asks for the number of guests, is entered into without listing all the guests. She asked if the responsibility falls to the individual who filled out the information dishonestly. MR. FISHER offered his belief that without specific facts that would drastically impact any tort litigation, the campground would likely have fulfilled its duty under the HB 32, as every guest included in the contract received the warning. He added that in the proposed scenario, an individual entered the campground without permission, which could be considered trespassing. 4:11:23 PM REPRESENTATIVE CLAMAN asked Ms. Saxe if she carries insurance on her campground facility. MS. SAXE answered yes, adding that she is required to have general liability insurance on her park. She opined that HB 32 would lower rates at certain parks in some instances. REPRESENTATIVE CLAMAN asked what kind of limits Ms. Saxe carries for her park. MS. SAXE answered higher than "million/million." She noted that for most parks, "million/million" is the minimum. REPRESENTATIVE CLAMAN questioned whether the insurance company takes her history, or lack thereof, of claims into account in terms of the annual premium. MS. SAXE answered yes. REPRESENTATIVE CLAMAN asked whether Ms. Saxe is pleased with her current rates or if her rates are unusually high. MS. SAXE said she is pleased with her rates; however, as the chair of the Alaska Campground Owner's Association, she shared that other parks are constantly shopping around. She continued to clarify that Eagle's Rest is more of an RV park than a campground, whereas campgrounds surrounded by nature tend to pay higher insurance premiums. 4:13:38 PM REPRESENTATIVE TARR, referencing page 2, lines 30-31, sought to clarify whether negligence or gross negligence is the appropriate legal standard. MS. SAXE deferred the question to Legislative Legal Services. MR. FISHER explained that starting on page 2, line 27, subsection (b) states that the immunity provided under subsection (a) - the inherent risks of camping - does not apply if the inherent risk of camping leads to an injury that occurs as a result of gross negligence, recklessness, or intentional misconduct. He defined gross negligence as something beyond negligence that is generally reckless, willful, or wanton misconduct. He noted that gross negligence is defined once under statute, later adding that when courts consider the term, they look at the statutory reference creating the standard and the applicable facts related to the specific circumstance. 4:17:04 PM REPRESENTATIVE TARR offered her understanding that gross negligence is similar to intentional misconduct in that it indicates more than carelessness, but also intent. She sought clarification on the standards being set by using the language "gross negligence, recklessness, or intentional misconduct," and questioned whether the standard it sets is too high. MR. FISHER relayed that determining negligence requires showing that the plaintiff breached the duty of care that he/she owed to the defendant, which resulted in damage caused. He added that one must consider how a reasonable person would act in similar circumstances and if the defendant acted outside of that, liability can be imposed under negligence. Beyond that, imposing liability under gross negligence requires considering whether the defendant's actions were reckless, willful, or an extreme departure from what a reasonable person would do. he noted that in this case, the appropriate level of scrutiny to apply is a policy call that depends on the will of the legislature. MR. LOGAN in response to Representative Tarr, pointed out that a similar statute pertaining to ski liability, AS 05.45.020, specifies that a skier may recover for the negligence of another skier from the skier but not the operator. He indicated that in a campground, if a camper's actions were negligent, then the liability would fall on the camper rather than the owner/operator. 4:20:15 PM REPRESENTATIVE CLAMAN, in reference to the line of questioning between Mr. Logan and Representative Tarr, offered his belief that the operative definition of negligence and gross negligence is contained in the civil pattern jury instructions that define both terms. He posed a scenario in which an individual parks in the parking lot of a ski area, such as Alyeska, and asked whether the gross negligence standard would apply to Alyeska's parking lot or if the gross negligence standard would apply to the mountain where ski activity occurs, and the negligence standard would apply to the parking lot. MR. FISHER offered his understanding that regarding ski area liability, AS 05.45 [Ski Liability, Safety, and Responsibility] carves out negligence with respect to the ski area operator. He explained that if a ski area operator acts negligently with respect to an inherent risk of skiing, the ski area operator could be held liable, which is defined under AS 05.45.200. 4:22:05 PM REPRESENTATIVE CLAMAN asked if parking in a [ski area] parking lot is an inherent risk of skiing. MR. FISHER shared his belief that parking in the parking lot would not fall under the definition of "inherent risk of skiing." REPRESENTATIVE CLAMAN surmised that under HB 32, the inherent risk of skiing would make it difficult to sue Alyeska if an individual were to "do foolish things" while skiing, or if a child goes skiing in too much powder, falls upside down and asphyxiates himself/herself; however, if an individual slips and falls in the parking lot because the operator failed to sand the lot correctly, the individual could sue the operator on a slip and fall theory with a negligence standard of liability. He further surmised that HB 32 would allow an individual who slipped and fell while getting out of his/her RV to apply a gross negligence standard of liability. He asked if that is correct. MR. FISHER confirmed that. REPRESENTATIVE CLAMAN asked why an RV park or campground should be treated differently than the parking lot of a ski area. MR. FISHER indicated that because it's a policy decision, he would defer to the bill sponsor. MR. LOGAN acknowledged that Representative Claman made a good point that was not considered in the original drafting. He noted that under HB 32, walking anywhere in the campground or slipping on a wet surface or a root that sticks out on a path would be included in the inherent risk of camping. 4:25:09 PM The committee took a brief at-ease. 4:26:06 PM REPRESENTATIVE CLAMAN opined that these are insurable risks. He pointed out that RV park operators who take care of their facilities are the ones with few claims and lower premiums. He said there are many RV parks with different conditions and questioned "[getting] into the business" of adding a gross negligence standard. He recognized that with respect to ski area liability, the distinction between the parking lot and the mountain is important, later adding that with very few ski areas, once people get to the top of the mountain they go out of bounds and do many things that, despite all the effort, is difficult to control and hard to insure against. He noted that in 1994, the ski industry was successful in passing a statute that addressed those issues. He expressed his concern about lowering the standard of liability from a negligence liability to a gross negligence liability when there are many conditions, both manmade and man-controlled, such as potholes, which are a risk. 4:28:31 PM REPRESENTATIVE VANCE suggested including a distinction between manmade construction and natural habitat in an RV park. She asked if that would be a reasonable solution. REPRESENTATIVE CLAMAN opined that it's complicated. He posited that the largest RV park in Alaska is five acres, indicating that monitoring and controlling the conditions would be vastly different than controlling the conditions on a thousand-acre ski area. He acknowledged that there are issues, such as trees and roots, that someone could trip over depending on how they are maintained; however, those are things that ultimately, campground owners have some control over, particularly within the boundaries of land that they manage. He explained that those are classically insurable risks in the list of lawsuits provided by the sponsor. He noted, for example, that Fred Meyer is insured against the risk of slip and falls. He expressed his concern about campgrounds receiving substantially different treatment than other commercial operators. He continued by acknowledging that in his legal career, he has represented both the defendant and the plaintiff in slip and falls, adding that they are tough cases to win and usually, easier cases to defend. 4:31:31 PM REPRESENTATIVE TARR recalled working on a similar provision for farm tours, which involved extensive conversations about negligence versus gross negligence. She advised exercising caution with regard to setting a legal standard. 4:32:06 PM REPRESENTATIVE EASTMAN asked if there was a particular event or incident that highlighted this particular area of lawsuits and tort reform. MR. LOGAN said it was by request of a constituent in District 9. He explained that the overall economic impact was so positive, which compelled [the bill sponsor] to try to ensure that those operations could continue to benefit the tourism industry in Alaska. CHAIR KREISS-TOMKINS noted that the supporting document, which listed inherent risk lawsuits, are all national examples. He said it would be helpful to provide real and concrete examples for additional context. 4:33:31 PM REPRESENTATIVE STORY asked if providing civil immunity in RV parks is a common practice in other states. MR. LOGAN replied several states have enacted similar legislation. He added that much of the drafting language came from a national organization's public advocacy body. He offered to provide a list of the requested information. 4:33:59 PM CHAIR KREISS-TOMKINS announced that HB 32 was held over.