SENATOR TAYLOR returned SB 44 (CIVIL LIABILITY FOR SKIING ACCIDENTS), sponsored by SENATOR TIM KELLY, to committee and announced the meeting was on teleconference. He said MARC BOND, was going to testify off-net from British Columbia. MR. BOND identified himself as counsel for Alyeska Resort and legal counsel for the National Ski Patrol. He had been asked to respond to the proposed amendments submitted, and he had a set of 8 proposed amendments to present to the committee. He explained he could respond at this time or when convenient. SENATOR TAYLOR explained he did not have a full committee, but he could take testimony for the record. MR. BOND chose, instead, to defer his testimony to respond to the amendments and let others testify. SENATOR TAYLOR presented 8 amendments defined as Ford, 3/3/93 and an addition amendment, Amendment #9, defined as Ford, 3/5/93. SENATOR TAYLOR calculated 21 amendments currently before the committee. MR. BOND said his list of 8 amendments were proposed by DENNIS MESTAS, and he gave his fax number to SENATOR TAYLOR, who offered to send the remainder of the amendments to him. MR. BOND was invited to remain on the teleconference network for the remainder of the meeting to hear BRUCE RIZER and RON SWANSON. MR. RIZER requested a copy of the remaining 21 amendments for the Anchorage teleconference site. Number 95 MR. RIZER identified himself as a 24 year resident and a commercial fisherman for the last 22 years. He reviewed past history on the inherent risk of skiing bill concept and claimed the bill this year was being supported in a polished campaign to convince the legislators to pass the "self- interest legislation." He criticized the support for the bill which, he said, went from increasing tourism to attracting investment monies into Alaska on the promise of bringing the inherent risk of skiing laws into line with other states. MR. RIZER quoted lawyers for Seibu as wanting to stop skiers from bringing suit by using summary judgement provided in this bill as a device to decide if inherent risk of skiing was at fault or the area operators were negligent. MR. RIZER quoted MR. HEISER, Director of Mountain Operations at the Alyeska Resort, as complaining that Seibu and to spend $150,000 to $175,000 in legal fees within the last couple of years, along with insurance costs which had risen from 6 to 10% of operating costs. MR. RIZER claimed Seibu never explained the reason for the legal fees or broke down the cost of the insurance for the various components of the resort. MR. RIZER explained that Seibu, while bragging about their unenviable safety record, grossed over $7 million last year, but said they could not afford the legal fees. He accused Seibu of being the driving force behind SB 44, and he quoted SENATOR KELLY as testifying that with this bill in effect, the RIZER tragedy would not have occurred. MR. RIZER claimed the legislation would put all of the burden on the skiers, in the sense that all skiers - even children, beginners, and foreign tourists - should be able to assess these broad, and sometimes hidden risks. He said the area operators depended on signs and warnings of certain conditions to absolve them of negligence. MR. RIZER said he was shocked at the attitude of Seibu's upper management and legal advisor. MR. RIZER explained his son, BART, died because he became trapped on an open run in the middle of the bowl in deep, bottomless snow in a pocket containing a waterfall and a stream bed. He thought if SB 44 had been in effect, Seibu could have been successful in having the case thrown out of court by summary judgement, because stream beds are listed as an inherent risk. Number 154 MR. RIZER said he had been told by Seibu that in order to get information on the investigations or procedures, he would have to go to court. He reviewed what he considered to be insensitive testimony from the attorneys for Seibu on his child's death. He thought their attitude was consistent with the bill, and he claimed Alyeska was way over its quota of skiing deaths. MR. RIZER said his information was all based on his experience and his wish to have something good come out of his son's tragedy. He said they had only been able to donate his son's corneas, and he lamented the insensitive treatment he felt they had received from the attorneys for Seibu. MR, RIZER reminded the committee of Rule 82 in Alaska law that basically states that if you bring a frivolous suit against a party, and are not successful, you are liable for all of the defense costs, and he thought this was a strong deterrent against frivolous lawsuits. Number 227 MR. RIZER quoted the Supreme Court findings that Alaska's current inherent risk of skiing statute is fair to both the skier and the ski area operator. He asked if it was right for the legislature to be lobbied by a self-interest industry to try to change a law that only last year was declared fair by the Supreme Court. He concluded with an impassioned plea to the Judiciary Committee to kill SB 44. SENATOR LITTLE thanked MR. RIZER for his involvement and expressed condolences to he and his family. SENATOR JACKO asked MR. RIZER about the industry average of one death in one million as to whether it was a United States average or international. MR. RIZER explained the figure was compiled by the State of Colorado pertaining to their skiing industry there which has over 11 million skier visits per year, and he said the statistics weren't comparable to the number of skiers in Alaska. SENATOR JACKO asked for the number of skiers per year at Alyeska, and MR. RIZER was only able to give an estimate of 43,000 which included the tourist season, and not just the skiing season. He said Alyeska was not very accurate in their figures. Next in Anchorage, SENATOR TAYLOR called on RON SWANSON, Director for the Division of Lands, who said he was available to answer questions. SENATOR TAYLOR said he had seen an amendment to place the Department of Natural Resources in the position of reviewing plans and asked MR. SWANSON if he was going to testify on that amendment. MR. SWANSON had not seen the amendment. SENATOR TAYLOR described Amendments #10, #11, and #12 as proposed by the Department of Natural Resources, beginning with Amendment #10 with changes on page 5, line 7 to delete "public safety" and insert "natural resources." This evoked a response from RAGA ELIM, Special Assistant to COMMISSIONER OLDS in the Department of Natural Resources. Number 289 MR. ELIM explained he had worked with SENATOR TAYLOR'S staff as well as the Department of Public Safety to prepare the amendment. He also explained it would consolidate the review of the operational plans, which would be submitted by the ski operators, because Alyeska is on state land. He further explained the amendment was initiated by the Department of Public Safety, and they were doing the present review as a matter of default rather than design. MR. ELIM said the Department of Natural Resources would be getting into the ski business with the opening of other ski areas on state land at Hatcher Pass and Girdwood. The federal government would retain authority to review operational plans on U.S. Forest Service lands, however. SENATOR TAYLOR asked if there was anyone with knowledge or expertise in this area, and MR. ELIM deferred to MR. SWANSON. MR. SWANSON described training sessions by the Forest Service concerning the operation of ski slopes in this year of transition between the U.S. Forest Service and the State of Alaska. SENATOR TAYLOR inquired as to who does the investigation of accidents or follow-up on the ski plans, and he noted plans had been submitted from Alyeska and Eaglecrest. MR. SWANSON explained that each individual ski plan would have the accident information in it, and the type of accident would determine the person, or persons, doing the investigation. Number 325 SENATOR TAYLOR wanted some further information on who checks on the accidents at this time, and MR. SWANSON said it would be the Department of Public Safety when a life is involved. SENATOR TAYLOR asked who it would be when it is other than a fatality, and MR. SWANSON said, if SB 44 is passed, it would depend on the activities. MR. RIZER offered to give some details from their situation, and SENATOR TAYLOR gave permission. MR. RIZER explained STATE TROOPER MICHAEL OPALKA came down to investigate, but he wasn't a skier so he had to be taken to the scene by MR. HEISER and MICHAEL GRANDINETTI, who also seemed to be involved in the investigation. MR. RIZER said the U.S. Forest Service did not investigate because they said they were not asked to do so. SENATOR TAYLOR pushed for more information, and MR. ELIM explained the operational plan contained procedures that must be in the plan. MR. ELIM suggested a rescue investigation follow-up also be included in the operational plan, which would then be reviewed by Department of Resources or Public Safety to insure compliance with the plan. Number 365 SENATOR TAYLOR asked whether it depended upon whose land the accident happened as to follow-up, and MR. ELIM said, at present, the Department of Public Safety is reviewing some of these plans for the federal government. He explained the new relationship with Alyeska as the land was selected by the state and ownership passes to Alaska. SENATOR TAYLOR opened the meeting to testimony from the audience and called on DAVID LOWE. MR. LOWE identified himself as an outdoorsman, an avid skier, a ski instructor, a ski mountaineering advisor for the National Ski Patrol, a mountaineering ranger for the National Park Service in the Grand Teton National Park, who has been involved in about 30 search and rescue operations per year. He participated in the rescue of climbers in Denali Park, and he had used all of his background to formulate his awareness of hazards in the outdoor experience. MR. LOWE also drew on his experience to claim that more than 90% of the deaths he had seen were preventable. He accused society of thinking the risks can not be controlled and are part of the inherent risk. He claimed SB 44 continues to reinforce the idea that nothing can be done about the inherent risks of skiing; therefore, the ski areas should be held blameless in the event of an injury to a skier. He outlined the preventative aspects of reducing the risk of skiing, and he praised the encouragement that children receive in learning to ski. Number 426 MR. LOWE thought SB 44 leaned too much towards absolving the ski areas of any responsibility and became special interest legislation, giving more protection to the ski areas and less to the public. He used the recent tragedy to illustrate his point of how safety is being ignored to protect commercial interests, and he described the weather conditions the day of BART RIZER'S death in the bottomless powder snow. He also described the lack of care given by Alyeska to the incident when it was discovered he was missing. He explained how the death of the RIZER boy could have been avoided with better procedures and communication. MR. LOWE explained how the RIZERS were using the energy from their grief to work towards making the slopes safe for all children and how Alyeska was stonewalling behind the corporate veil to avoid any perception of liability. He questioned the concern by Alyeska for the general public and suggested they should have taken a more proactive approach in discussing the accident with the Alyeska staff, ski patrol, and with interested members of the public. He claimed there had been no voluntary change by Alyeska to accept any admission of liability, and he discussed the proactive approach as being a better way of dealing with the tragedy. Number 486 MR. LOWE said Alyeska needed to learn something from Johnson & Johnson in the tylenol scare some years ago, at a time when Alyeska should be subjecting itself to a serious introspective review of health, safety, and public relation policy, rather than asking for further protection from liability. MR. LOWE urged the committee not to pass SB 44 since it would only encourage further neglect of important health and safety issues that should be addressed by Alyeska and other ski areas within the state. He questioned why a special interest group should receive additional protection, when they had previously shown a tendency to evade responsibility for their actions. He thought additional ski areas in Alaska should be welcomed, but the legislature should also send a message that health and safety of Alaskans comes before corporate profit. Number 512 SENATOR TAYLOR questioned MR. LOWE about his length of time in skiing activities, and MR. LOWE said he been active for about 40 years. SENATOR TAYLOR asked him about accidents he had seen. MR. LOWE explained he had seen many of them, and he described the injuries he had received skiing. SENATOR TAYLOR asked him if he had ever sued anyone and whether he had ever testified in a ski suit. MR. LOWE answered "no" to both questions. SENATOR TAYLOR questioned him closely as to any involvement by MR. LOWE in a ski suit, and he always said no. MR. LOWE explained accidents were fairly easy to avoid if a proactive approach is taken, do careful documentation, and check all of the nooks and crannies before closing the mountain. He also explained those procedures can be put in place to prevent suits. SENATOR TAYLOR questioned MR. LOWE as to how many years he had spent in the ski patrol, and MR. LOWE answered about 3 years total here in Alaska - mostly at Alpine Glow. SENATOR TAYLOR next invited PATTY RIZER to testify. Number 530 MRS. RIZER identified herself as coming to Alaska in 1969, has taught at the University of Alaska for 21 years, and has no special interest in the bill since she is not a skier any more. She stipulated that SB 44 had nothing to do with her pending lawsuit because of the death of her son. She thanked SENATOR TAYLOR for allowing her to testify on SB 44. MRS. RIZER expressed her belief that SB 44 goes against the will of the Alaskan people, and she recalled a proposition several years ago that talked about proportionate fault. At that time, she said, an overwhelming number of Alaskans voiced support for individual responsibility, but she characterized SB 44 as being narrow minded in self interest. MRS. RIZER outlined the background of SB 44, which is similar to one introduced last year, and she quoted MARC BOND as urging political support for the new bill, SB 44, to ask legislative candidates how they stood on the bill, and to contribute to their campaigns if they supported the concept. MRS. RIZER said this left her feeling cynical, because it seemed everyone wanted immunity from their consequences, their negligence, and their recklessness. She named the business interests that supported this legislated immunity from responsibility and characterized the tort law, which directs business to behave safely, as a type of social insurance. MRS. RIZER explained there had been a concerted effort to change tort law to protect their profits, and she suggested Seibu was involved in the ski operator immunity amendments. She admitted to a strong opinion and explained the trigger for her was the deception used by manufacturers and insurance companies to convince the public that our legal system and laws need a major overhaul. MRS. RIZER addressed the sponsorship of SB 44 by SENATOR KELLY and went point by point as to his opinion beginning with "trying to strike a balance between protecting skiers and ski area operators." To make her point, she read from both the bill and the statute and summarize the Supreme Court's finding as "an area operator needs to be responsible just as any landowner would be." TAPE 93-26, SIDE B Number 001 MRS. RIZER quoted the Supreme Court on the Hiibschman Case as confirming the skier has inherent risks and so does the area operator. She felt the inherent risk of skiing was adequately covered in present law, and she quoted SENATOR KELLY as saying SB 44 does not absolve the ski areas from negligence. MRS. RIZER spoke of the difficulty in finding legal counsel to take their case, while spending $50,000 to try to get answers from Seibu, and being unable to find out what really happened. She claimed they were forbidden to talk to Seibu employees. MRS. RIZER said she had not received a trooper's report or a death certificate. MRS. RIZER quoted SENATOR KELLY as saying ski area operators must prepare and obtain approval from the Commissioner of Public Safety or the managing federal agency for a plan of operation. She said everyone is responsible all ready, and she reviewed the agencies in charge of plans. MRS. RIZER quoted SENATOR KELLY'S contention the bill would provide for a qualified ski patrol as a reason to sponsor the bill, and she said ski resorts Outside were hiring more professionals, which is the trend. She noted the change in the Ski Patrol manual over the last 6 years, with most of the safety procedures removed and stripped of any good enforcement sense. MRS. RIZER also quoted SENATOR KELLY as saying the bill would establish and maintain a tramway signing system, but the Department of Transportation all ready has these requirements. SENATOR KELLY also claimed savings could be passed on to skiers in the form of lower lift ticket prices. She noted that since Colorado put their similar bill in effect, every resort, but three, has gone up in ticket price, and no state has ever lowered its prices. MRS. RIZER quoted SENATOR KELLY as claiming the bill would encourage continuing development of ski resorts in Alaska, and she thought this might be true if the new resorts could be assured of relief in the form of summary judgement. She didn't think more skiers would come to Alaska because the ski resorts would have no responsibility to protect them. With the passage of SB 44, MRS. RIZER said Seibu intends to develop the Winter Creek area, and she described the area as treacherous, dangerous, and avalanche ridden. MRS. RIZER quoted SENATOR KELLY as claiming Alyeska would be transformed into a world-class ski resort which would attract winter travelers to Alaska from all over the world, encourage other ski operators to expand in Alaska. She found it difficult to compare the numbers coming to Alaska with those to Colorado or Utah. MRS. RIZER claimed that since Colorado passed their version of SB 44, they have had the deadliest ski season since 1986, three times the deaths from the year before. She quoted the ROCKY MOUNTAIN NEWS as noting their ski price tickets have gone up. In the COLORADO SPRINGS GAZETTE, she quoted another article stating insurance premiums for ski resorts decreased 10% in the 1989-90 season, and 6.9% the year. Insurance rates were going down before their version of SB 44, and she melded this statistic with safety records not legislation. MRS. RIZER explained the Anchorage School District decided not to send their students down to ski if no one was responsible. MRS. RIZER said season pass holders had to sign a release indemnification and covenant that says, in part, "A season pass holder hereby releases Alyeska Resort from any and all claims arising from, or related to the participation of the season pass holder in winter activities, including skiing and snowboarding. Claims mean any claim, liability, or cause of action for any kind for personal injury, loss of consortium, property damage or death, made against Alyeska Resort arising from or related to the participation of the season pass holder in winter activities, including skiing or snowboarding at or near Alyeska, whether arising from the acts, omissions, or the negligence of Alyeska Resort or any other cause." She thought it was incredible that people would sign away all of their rights. Number 070 SENATOR TAYLOR asked MR. SWANSON, Manager at Eaglecrest, if he had people sign a form as described by MRS. RIZER. MR. SWANSON said they had a form the season pass people sign saying they are aware of inherent risks of skiing, and he indicated it was a notification - not a release. MR. SWANSON said the notification also included refund procedures. SENATOR TAYLOR asked MRS. RIZER for a copy of the release, before inviting her to continue. MRS. RIZER addressed the bill, CS FOR SENATE BILL NO. 44(L&C): 1. page 3 line 13 (b) - delete (as interpreted by the Alaska Supreme Court). 2. page 3, line 27-30 - delete portions that attribute injury to things such as rocks. 3. page 5, line 1 - wanted answers to questions about the plan. 4. page 7, line 2 - had questions about the signs - saw a sign with "STOB" on it. 5. page 8, line 12 (4) - suggested deleting "man- made structures." Are these inherent risks? 6. page 8, line 22 (4) - many of the slopes are never groomed, but always open. Number 149 7. page 9, line 10 (g) - reference to (e)(5) has been changed - the WARNING lacks responsibility by the ski resort. 8. page 10, lines 20-22 - lines contrast with page 12, line 13, (collision with other skiers). SENATOR TAYLOR asked MRS. RIZER for more explanation on this one, and they discussed the contrast in inherent risk. 9. page 12, line 4 - problems with interpretation of "inherent danger and risk of skiing." 10. page 11, line 11-15 (e) - suggested the inclusion of "rebuttable" before "inclusion." Also, young children can't read signs and some international visitors don't read English. 11. page 12, line 9-11 - delete man-made items. MRS. RIZER concluded her testimony. Number 222 SENATOR KELLY explained that when he sponsored the bill he had no idea of BART RIZER'S tragedy, and if the facts are correct, Alyeska was clearly negligent in that incident. He claimed there were provisions in the bill that would help to make certain his tragedy would not happen again, and he gave the example in the bill of a required map, a trained ski patrol, and additional safety procedures in place. SENATOR KELLY claimed there have been substantial changes made to the legislation since the introduction, many at the behest of the RIZERS. He explained the anti-liability language would be deleted from all season passes, and he related what was told to Alyeska. SENATOR KELLY urged people to amend the bill and to error on end of safety, but be certain there will be a ski area to use. He explained the ski slopes in Alaska were a major economic player and for the future even more so. He cautioned about destroying an industry in the state because of one tragedy, and he reminded the participants that Alyeska was operating a lawful business. He stressed no ski operator wanted a ski accident to happen and most know how to run a safe operation. SENATOR KELLY explained why he thought the operation of Alyeska would be improved under the terms of SB 44, and he asked for some perspective on the accident. He reviewed some accidents he considered the fault of the skier, and he asked for a balance in amending the bill. SENATOR KELLY said he hoped the RIZER'S involvement would result in a stronger bill that could be used by all of the ski resort operators. SENATOR LITTLE questioned the season pass waiver, and SENATOR KELLY said there was a proposed amendment to remove the waiver language. SENATOR TAYLOR share SENATOR KELLY 'S concerns about a balanced bill so the facilities can remain open, grow, and develop. He thanked the staff from Eaglecrest who had come to support the bill, and indicated they had never been sued. He hoped that one tragic loss would not become a torrent, and he was going to asked his staff to research insurance costs. Number 331 SENATOR KELLY enumerated the costs of insurance, attorneys, settling costs, and medical costs if a suit is settled. He described Seibu as a world-wide corporation, and Eaglecrest as a Juneau cooperative, but he claimed it is a larger issue than just Seibu. He described the wide range of support for the bill, not only ski resorts, but various municipalities. He explained that Anchorage has asked for an exemption for their small rope tow at Russian Jack Springs because they can't afford all that is required in the bill. SENATOR KELLY thought more investigation would have to be made on the claims of death in Colorado to understand what had happened there as to weather, usage level, snow conditions, and related details. He expressed assurance that the legislation would make for safer skiing and fewer accidents. SENATOR HALFORD referred to the Hiibschman case, and asked, prior to that case, if SENATOR KELLY was satisfied with the existing statute on inherent risks of skiing. SENATOR KELLY said he was not aware at that time of the existing statute, or the Hiibschman case until January of 1993. SENATOR HALFORD thought the legislation did more than just addressing the case, and he reviewed what he considered the negative aspects of the Hiibschman case. He would prefer to address the finding by the Supreme Court rather than SB 44. SENATOR TAYLOR kept the bill over time to allow for the testimony as presented, and his committee members had to leave for other meetings. He promised the bill, SB 44, would be returned to committee, and he apologized to MR. BOND for not addressing his amendments.