HB 30 CIVIL LIABILITY FOR SKATEBOARDING  REPRESENTATIVE ELDON MULDER , sponsor of HB 30, gave the following overview. The measure was introduced at the request of the Municipality of Anchorage (MOA), City and Borough of Juneau (CBJ) and numerous other communities throughout the State: Fairbanks, Sitka, Valdez, and Petersburg. These communities have indicated interest in creating skating and cycling parks so that skaters and cyclers will have a designated place to ride, rather than using pedestrian areas. Municipalities are willing to develop areas suitable for these activities if they can be insulated from liability for claims arising from hazards inherent to those activities. The intent of HB 30 is to encourage municipalities to proceed with development of areas for outdoor recreation without unnecessarily increasing their liability. HB 30 only applies to municipal skating and cycling parks and is patterned after legislation that passed three years ago which pertained to ski areas. The protection from liability relates to inherent dangers and risks associated with skating and cycling. Municipalities will be required to post signs warning participants of the risks involved and disclaiming liability. Number 084 SENATOR ELLIS asked if there might be any possible unintended consequences on liability if those activities occur outside of designated areas. REPRESENTATIVE MULDER did not believe so, but deferred to representatives from the Alaska Municipal League. CHAIRMAN TAYLOR stated HB 30 is based on an assumption of an inherent risk of using the facility. He asked at what age the discretion to make that assumption should occur. REPRESENTATIVE MULDER answered the assumption goes to the fact that there is an inherent risk in skateboarding, in-line skating, or using a bicycle on these premises, and is within those activities rather than the facility itself. Accidents are currently occurring in public areas but there is no plethora or lawsuits because there is no one to sue. The facilities will have to be challenging to encourage youth to use these facilities, which poses a risk to municipalities. CHAIRMAN TAYLOR clarified he was asking at what age a child should be considered capable of understanding the inherent risk involved: age 5, 7, or at the age one can read a warning sign. TIM SULLIVAN , staff to Representative Mulder, explained the bill is not age-specific but does contain a provision related to responsibility. He read subsection (B) on page 4, line 12: (B) if the person does not have sufficient physical dexterity or ability and knowledge to negotiate or use the facility safely; in the case of a minor who uses a municipal skating or cycling facility, the minor's parent or legal guardian is responsible for determining whether the minor satisfies the requirements of this paragraph; Mr. Sullivan said he believes that language is consistent with the direction the Legislature has taken over the past few years to make parents more responsible for their children's activities. Number 160 CHAIRMAN TAYLOR asked who would be responsible in a situation in which a 14 year old, who is responsible for taking care of his 4 year old brother during the summer while the parents are working, takes the 4 year old to the skateboard park where he is injured. REPRESENTATIVE MULDER thought it would depend on how the injury occurred. It could have occurred as the result of negligent construction or while the child was an onlooker. He believed the real question in that case is what the two children would be doing if the facility was not there. If the assumption is that they would both be skateboarding, they would be doing so on the street. CHAIRMAN TAYLOR said that issue is related to whether or not the Legislature needs to regulate laws that are currently on the books that municipalities choose not to enforce. He asked at what point does immunity from liability attach to the four year old. He repeated that HB 30 is based on the assumption that skateboard and cycling are inherently riskier than other activities. REPRESENTATIVE MULDER answered the number of these types of injuries that occur in the public today cannot be accounted for because no parks have been built so there has been no "deep pocket," but once a municipality officially sanctions a facility, a "deep pocket" will be exposed. He added the only municipally- sanctioned facility in Alaska that he is aware of is a very small facility in Kodiak and recently a child was injured at the facility and is suing the city. Number 216 CHAIRMAN TAYLOR noted he has seen skateboard facilities in California, Washington, Idaho, and Florida. He asked Representative Mulder to cite another State that has passed an immunity bill similar to HB 30. REPRESENTATIVE MULDER deferred to representatives from the Alaska Municipal League. CHAIRMAN TAYLOR asked whether anyone requested information from Legal Research about other states. REPRESENTATIVE MULDER replied he did not. CHAIRMAN TAYLOR said, if HB 30 is valid and municipalities need immunity in order to have recreational equipment for children, the Legislature needs to know how many children are injured when playing football and diving in swimming pools, or when participating in other activities on municipal lands. He emphasized if there are cases where communities are suffering serious legal challenges because of liability for recreational activities, the Legislature should provide immunity for all of those activities. He concluded there may not be a problem, since communities do allow for recreational activities and cover the risk. He expressed concern that HB 30 will allow municipalities to turn their backs on injured children and asked that Representative Mulder provide legal research on this issue. Number 256 KEVIN RITCHIE , Executive Director of the Alaska Municipal League (AML), and KEVIN SMITH , with AML's Joint Insurance Program, took the witness stand. Mr. Ritchie explained that the Joint Insurance Program is an insurance pool governed separately from the AML. He stated HB 30 is a priority bill for the AML because it will allow municipalities to provide an area for an activity which is inherently dangerous and is occurring in places that municipalities have outlawed, or are in the process of outlawing, because it is dangerous to participants and others. Skateboarding has become a tourism/business issue because it often occurs in downtown areas. AML would like to channel these children into a supervised area. Because the activities are currently occurring in illegal areas, there is no liability issue when injuries occur but if parks are created by municipalities, they will be assuming liability. HB 30 would provide the same type of immunity that is currently provided for municipal ski areas. CHAIRMAN TAYLOR referred to the repeated use of the term "inherently dangerous" and asked Mr. Ritchie what the risks are. MR. RITCHIE replied that Representative Mulder referred to a broken arm. He noted an additional advantage to a designated park is that protective gear can be required and limit the number and types of injuries. CHAIRMAN TAYLOR asked what specific injuries are known to exist from this activity in skateboard parks. MR. SMITH responded that skateboarding is done with great speed and requires balance. The injuries are not limited to, but include, broken bones, backs, necks, and brain stem and head injuries. CHAIRMAN TAYLOR asked if the municipalities insured under the Joint Insurance Program have risk management programs and are advised on how to avoid certain risks. MR. SMITH answered that is correct. CHAIRMAN TAYLOR asked how playground equipment is dealt with. MR. SMITH answered it is inspected for entrapment hazards, for exposed rivets, for adequate ground cover, etc. CHAIRMAN TAYLOR asked why that is done. MR. SMITH said it is done to make the playground safer. CHAIRMAN TAYLOR said it is also done to prevent lawsuits and keep insurance rates from increasing. He asked why there are fewer pieces of playground equipment on playgrounds today. MR. SMITH replied that a lot of lawsuits over the safety of playground equipment have been filed against municipalities and safer equipment has been designed. CHAIRMAN TAYLOR asked if Mr. Smith meant safer than something that is inherently dangerous. MR. SMITH said yes, swinging is not as inherently dangerous as skateboarding. CHAIRMAN TAYLOR asked if some of the equipment that has been taken out of playgrounds is as inherently dangerous as skateboarding. MR. SMITH replied some of them probably were. CHAIRMAN TAYLOR asked why HB 30 shouldn't be expanded to include all of that equipment if we want to encourage activities that are inherently risky. MR. SMITH said he was in favor of broadening the immunity to any outdoor recreational activity. He noted in his research, he found that municipalities have been sued in a number of states for skateboarding activities. A number of states have a broader statute and gives any property owner some limited liability from injuries resulting from outdoor recreational activities. Number 391 MR. RITCHIE pointed out the AML targeted skateboarding, cycling, and in-line skating because they are becoming national sports and have extensive safety guidelines and equipment. HB 30 does not stop the evolution of safety in the sport, it will help it. If a municipality designs a skateboard park that does not meet appropriate safety standards, the municipality will be liable if an injury results. Municipalities would be liable for negligence. The type of inherent injury that hopefully will never happen can be protected against, but not fully. Although the Joint Insurance Program is a large program, one serious injury would have a significant impact. CHAIRMAN TAYLOR stated what AML wants is to be immune from negligence. REPRESENTATIVE MULDER explained the bill maintains that a community is liable if the design of the facility is found to be faulty. CHAIRMAN TAYLOR noted the only requirement for a municipality is posting a sign. MR. SMITH said municipalities would also be responsible for maintaining the facility. Number 425 MR. RITCHIE did not believe HB 30, or the law that covers ski areas, creates what attorneys call a "bright line." It attempts to add some definition and does not create a solid line as to what is negligent and what is not. REPRESENTATIVE MULDER pointed out that language on page 3, line 10, prohibits a municipality from constructing a facility in a negligent manner and recognizes that there is a safe way to build and maintain these facilities. Language on page 5, lines 7-8, specifies that a municipality is not immune from liability for negligence. He repeated that is not the intention of HB 30. CHAIRMAN TAYLOR asked how many cities the Joint Insurance Program insures. MR. SMITH replied there are 113 participants, including schools and municipalities. CHAIRMAN TAYLOR asked how much they are charged for recreational coverage for skateboard parks now. MR. SMITH said it is included in the general liability policy and began July 1, 1996. CHAIRMAN TAYLOR asked what claims have been filed. MR. SMITH said one claim has been filed against Kodiak by the child who broke his arm while in-line skating. The City of Kodiak had set up a grinding rail about 18 inches off the ground with ramps on either side. CHAIRMAN TAYLOR inquired whether the family filed a claim with the city, or a lawsuit. MR. SMITH said the family has only filed a claim at this date. CHAIRMAN TAYLOR stated only one claim has been filed so far this year in 100 cities. MR. SMITH agreed but said the AML only began offering coverage less than one year ago and it takes a while to build a skateboard park. The injury in Kodiak occurred in the teen center. CHAIRMAN TAYLOR asked what the Joint Insurance Program charges the cities for this increased risk. MR. SMITH said there was no increase in premiums but the program requires a retrospective audit at the end of the year and then premium adjustments are made. The Joint Insurance Program board members are getting pressure from municipal officials and businesses to deal with the problem of skateboarding so they decided to provide coverage and to support HB 30. Number 480 CHAIRMAN TAYLOR asked to what extent this issue was researched before the board decided to provide coverage. MR. SMITH said he did a lot of research, but found there is not a great deal of data available. He found there is a great deal of paranoia within the insurance industry about skateboarding and it was difficult to determine a figure based on actuarial information. CHAIRMAN TAYLOR asked whether Mr. Smith found any cases within the last 15 years any place in the nation where someone actually sued a skateboard park. MR. SMITH answered no, probably because there are not a lot of skateboard parks because of the lack or expense of liability insurance. In a general liability insurance program, skateboarding is excluded. The Joint Insurance Program is a totally different creature from a commercial insurance company. HB 30 was initially introduced to provide coverage to municipalities where coverage was not available. Coverage is available at $10,000 to $25,000 on a stand alone basis for municipalities that are not in the Joint Insurance Program pool. CHAIRMAN TAYLOR asked where Mr. Smith got that information. MR. SMITH answered he got it from Gallagher, Heffern Insurance in San Francisco and explained the varying amount depends on deductibles and is site specific. Number 518 CHAIRMAN TAYLOR stated he is hearing conflicting information and asked what the $25,000 premium is based on if no lawsuits have been filed in the past 15 years. He questioned whether this whole movement is being driven by the paranoia of the insurance companies. MR. SMITH replied the premium he was quoted was based on the market. CHAIRMAN TAYLOR said usually insurance rates are based upon claims, rather than what the market will bear. CHAIRMAN TAYLOR repeated his concern that HB 30 grants immunity for something that no one can find a case on in the past 15 years and questioned whether municipalities should be immunized from liability for all recreational activities. MR. RITCHIE informed the committee that he is an ex-officio member of the Joint Insurance Program board and acknowledged that the board did not review this issue scientifically, but rather as municipal officials who were trying to help children. Number 541 CHAIRMAN TAYL OR commented he was very impressed with the Joint Insurance Program's willingness to provide coverage, because unless someone has the courage to not follow the masses, we will be driven over a cliff called "inherent immunity for everything." The board took on that program for 100 cities and did not charge anything. They decided to wait and find out what the real risks and costs are and then assess members. If the costs become too high, then the board will reassess whether it is worth being in the business of providing coverage for inherently risky activities. He noted the MOA refuses to build a skateboard park though it is self-insured. Their best risk assessment showed it would cost a total of $2500 per year yet it is not willing to take on that risk and provide insurance coverage. MR. SMITH agreed that the MOA is self-insured, but explained that the $2500 insurance premium probably includes a $1-$2 million self- insured retention or deductible. Although AML's Joint Insurance Program covers 100 cities it does not insure Juneau, Petersburg, Ketchikan, Kenai, Anchorage, and many of those municipalities have pavement and youth interested in skateboarding. CHAIRMAN TAYLOR announced it is not his intention to move HB 30 at this time. He asked for data on skateboard lawsuits in the United States and information on how other states have dealt with the issue of skateboard park liability. Number 575 SENATOR PEARCE asked whether any injuries have occurred on streets or sidewalks in Alaska from skateboards. MR. RITCHIE answered that he was the city manager of Juneau when the downtown skateboard ordinance was passed. That ordinance was passed because downtown businesses were seriously concerned about near-misses. Many elderly tourists were scared by the skateboard activity on sidewalks. He offered to research actual injuries in Alaska and nationwide. TAPE 97-29, SIDE B SENATOR PEARCE commented she had a child on a skateboard in the street almost hit her recently. She agreed skateboarders need a designated place to go. MR. RITCHIE said that is the crux of the matter: skateboarders are putting themselves and others in danger. Although CBJ has an ordinance against skateboarding downtown, it does not have enough police to enforce the ordinance. In addition, no one wants to turn an emerging sport into a criminal activity. He repeated that any approved facility that is built will have to be challenging enough to entice skateboarders off the streets. MR. SMITH remarked he has been researching legal cases on skateboard parks and although those cases are difficult to find, he has found cases outside of Alaska involving serious injuries that resulted from accidents between skateboarders and cyclists. Number 565 CHAIRMAN TAYLOR emphasized that no one can back up this paranoid- driven fear with numbers or cases and we cannot build facilities because insurance companies have us scared to death. He noted Senator Kelly witnessed a skateboarder skate head-on into a car in front of him while driving up the hill to the Capitol building several days ago. Fortunately the skateboarder bounced off and was fine. Although this problem needs closure, the solution should not be based on paranoia. MR. SMITH said skateboarding is an activity that is largely driven by one's own abilities and is very different from using playground equipment. CHAIRMAN TAYLOR began taking teleconference testimony. CONNIE JONES , Director of Cultural and Recreational Services for the MOA, testified. She noted MOA's attorney has done an extensive West Law search on skateboarding cases of which she has 37. Most of the cases do not concern skateboard parks and the history is relatively short so it is unfair to compare it to other kinds of recreational activities. Most of the cases involve street skateboarding accidents. There is very strong support for a skateboard park in Anchorage from the Youth Commission, Assembly, the Chamber of Commerce, and the Downtown Anchorage Association. Although the MOA is self-insured, it has a $2 million deductible. MOA is concerned about a draw down on that because of the possibility of high cost injuries such as neck injuries or paralysis that can occur when skateboarders do not use protective gear or act unsafely. MOA believes HB 30 delegates equal responsibility to the MOA for building and maintaining an adequate facility and to parents and participants for participating in an inherently dangerous sport, one that involves being airborne over concrete. CHAIRMAN TAYLOR asked if MOA's risk management team calculated a cost they would have to reserve each year to cover skateboarding injuries. MS. JONES thought the extra cost would be about $60,000 for a separate policy, and no one would accept is as part of MOA's self insurance. CHAIRMAN TAYLOR noted the "no one" she is referring to is the Anchorage Assembly and the risk management team is assuming the MOA will be liable for so many injuries that the policy would cost $60,000 per year. He asked her to request the MOA to put that in writing to him. MS. JONES explained the problem is that the data is incomplete, and the risk manager is basing that figure on cases that have occurred in street accidents. He is also speculating that when the MOA invites people into a skateboard park made of hard surface cement, injuries will occur when skateboarders attempt activities beyond their skill level. She repeated the MOA will accept full responsibility for all maintenance and construction. Number 492 CHAIRMAN TAYLOR asked if the MOA currently insures other parks and greenbelt areas where people play soccer, touch football and rugby, and hockey rinks. MS. JONES replied that those activities are covered under MOA's self-insurance and althouth those sports are dangerous, the inherent danger of skateboarding is higher because of the height at which these injuries could occur and the cement floor. CHAIRMAN TAYLOR again requested the MOA risk manager to send him an estimate of the number of injuries that may occur and the number for which the MOA may be liable. He asked why one would base the injury level in skateboard parks on the number of skateboard injuries on streets when the parks are properly built and supervised. MS. JONES speculated that might be done because there is not enough history. CHAIRMAN TAYLOR asked Ms. Jones to send him copies of the cases involving skateboard parks. Number 466 COLIN WHIDDON , a 15 year old from Kodiak, testified in support of HB 30. The few areas in Kodiak that were available to skateboarders are slowly becoming illegal, and skateboarders must fend for themselves and are getting a bad reputation. Kodiak skateboarders want a legal place to go to. By passing HB 30, the city will be able to support skateboarders' efforts to get a skate park. CHAIRMAN TAYLOR asked Mr. Whiddon if he was aware of the skateboarding accident that occurred in Kodiak. MR. WHIDDON said he was not. MR. IAN FULP , Kodiak Parks and Recreation Director, discussed two aspects of skateboarding that make it inherently dangerous. The first is that skateboarders do acrobatic stunts while airborne over a hard surface. The second is that in order to improve, skateboarders must expose themselves to greater danger to learn new tricks. He described the accident that occurred in Kodiak. A grinding bar is bolted about 18 inches off the ground with mats on either side. The children would in-line skate on it then jump off. The city felt it was fairly safe because the skaters could not go very fast and because there were mats on either side. One boy fell forward onto the bar, put his forearm out to block his fall and broke both bones. Mr. Fulp expressed concern that because the grinding bar has a history of one accident, if another occurs, the city could be considered negligent for not removing it. CHAIRMAN TAYLOR asked Mr. Fulp at what age he thought children should be held accountable for their injuries. MR. FULP said he has never seen a four-year old on a skateboard and that the possibility is not very realistic. He thought that scenario could be compared to a four year old walking onto a baseball field during a game and that people would move that child off the field. CHAIRMAN TAYLOR stated he is concerned about the age level a child should be considered to have sufficient discretion to be accountable if an injury occurs. MR. FULP answered HB 30 should apply to any child on a skateboard. CHAIRMAN TAYLOR asked Mr. Fulp if he thought there should be a different standard for other recreational activities provided in communities. MR. FULP said very much so because the other activities are not inherently dangerous. Number 325 RICHARD BITTICK , the assistant director of the City of Seward Parks and Recreation Department, testified in support of HB 30. The City of Seward is trying to provide a safer environment for skateboarding and cycling which are currently occurring on city streets. He believes skateboarders take on a greater inherent risk when skateboarding on the streets rather than in a park. CHAIRMAN TAYLOR asked Mr. Bittick if he is aware that Seward has full coverage under the AML's Joint Insurance Program to build a skateboard park now. MR. BITTICK said Seward is in the process of building a park. CHAIRMAN TAYLOR encouraged completion of that project because after it is in existence for several years, the risk factor will become more apparent. He asked if the City of Seward wants HB 30 passed so that none of the skateboarders can be compensated for injuries that might occur at the park. MR. BITTICK explained the city has set aside an area for skateboarders, but is concerned about liability when skateboarders do not follow the rules and get injured. CHAIRMAN TAYLOR repeated he is not aware of any skateboarder who has actually sued a municipality and that the City of Seward is fully insured today. He urged the city to build a park. MR. BITTICK responded the City of Seward is trying to provide a safe facility without putting its neck on the chopping block at the same time. Skateboarding and cycling differs in that it is being done in the middle of the street. Other sports are not. NANCY ROBB , the Parks and Recreation Director in Valdez, informed the committee that Washington State has been working on similar legislation and offered to provide additional information on that legislation to any interested parties. CHAIRMAN TAYLOR asked her to also provide information on the other highest risk recreational activities for children in Valdez. MS. ROBB answered it used to be skiing but the City of Valdez no longer operates the ski area. Number 208 LAURIE WHIDDON , a mother of three skateboarders, testified in support of HB 30 because there are a large number of children in Kodiak who are not interested in sports other than skateboarding. Skateboarders need a safe and legal place to practice their sport; the downtown area is off-limits, as are most paved parking lots. The only locations available at this time are the school parking lot and tennis courts. The City has been discouraged from providing a safe place to skate because of the liability issue. HB 30 would remove a major hurdle in its efforts to provide another recreational outlet. CHAIRMAN TAYLOR asked Ms. Whiddon if she was aware that Kodiak has had full insurance coverage for a skateboard park through the Joint Insurance Program since July 1, 1996. CLAUDIA ANDERSON , the mother of a skateboarder, testified that her son's interest in skateboarding has caused him to have many unnecessary confrontations with authorities. The city has not built a park, and suggested that parents build a private facility but Kodiak's population base is too small. She urged the committee to support HB 30 so the Kodiak City Council will build a park. Number 130 JOHN PALMER , Kodiak Chief of Police, testified that the ordinance to prohibit skateboarding in downtown Kodiak was the result of run- in incidences with pedestrian traffic and building damage. The police department enforces that ordinance which puts a drain on its resources and promotes an adversarial relationship with the teenagers which is counterproductive to the police department's goal. Although Kodiak may already be insured for a skate park, there is no assurance that the Joint Insurance Program may decide to stop the coverage in the future, or raise the premium substantially. CHAIRMAN TAYLOR reiterated his comments about the need to build parks now and determine what the liability is in five years. MEL PERKINS , a local Juneau business owner, expressed concern about the lack of control and responsibility that will occur if HB 30 passes. The CBJ skateboard park will be located next to his businesses. He stated CBJ staff initially told him the skateboard park would be supervised but he heard during the CBJ Assembly meeting that if HB 30 passes, no supervision will be necessary if warning signs are posted. If there is no supervision of the premises, it is possible that nefarious activities will occur. In addition, if no restrooms are available on the premises, the youth will use the facilities in local businesses. He stressed the need for the CBJ to maintain and take responsibility for for the skateboard park if it builds it. TAPE 97-30, SIDE A CHAIRMAN TAYLOR commented his primary concern is that HB 30 contains no requirement for supervision. JAY SONNER informed committee members he has been one of the local students working on the CBJ skateboard park and is available to answer questions. CHAIRMAN TAYLOR asked if the construction of the Juneau skateboard park is dependent on the passage of HB 30. MR. SONNER said passage of HB 30 will greatly improve the chance of getting a skateboard park, otherwise it will be very hard to get insurance coverage. CHAIRMAN TAYLOR encouraged Mr. Sonner to get information from the CBJ on the cost of insurance and use it to inform the residents of Juneau. MR. SONNER said that currently there are skate gyms and get togethers once a month in the summer time and about 200 youth participate.