HB 25-RECREATIONAL LAND USE LIABILITY/ADV. POSS    1:35:19 PM CHAIR FRENCH announced the consideration of HB 25. REPRESENTATIVE PAUL SEATON, sponsor of HB 25, explained that the bill encourages the expansion of recreational opportunities for Alaskans by increasing liability protection for landowners who allow free recreational use of their land. This is achieved by raising the standard of care that a landowner owes for allowing someone to use their land. The bill provides immunity from suit unless there is gross negligence, intentional misconduct, or reckless endangerment. HB 25 is consistent with practices in 45 other states. REPRESENTATIVE SEATON said that the current simple negligence liability standard applies to unimproved land. That generally makes landowners uncomfortable and the result is that they're more inclined to restrict access to their land. He clarified that this bill does not address landowners who charge to use their land and it does not apply to municipalities and other governments. He highlighted letters and resolutions from diverse groups and private citizens supporting HB 25. 1:37:04 PM SENATOR THERRIAULT joined the meeting. SENATOR HUGGINS asked how airstrips are treated. REPRESENTATIVE SEATON explained that current law says that for abandoned airstrips and unimproved land the standard for the private landowner is gross negligence, intentional misconduct, or reckless endangerment. SENATOR HUGGINS asked about the hypothetical scenario where he allows free use of a snow machine track on his property. REPRESENTATIVE SEATON explained that as long as you aren't charging and you aren't grossly negligent you aren't liable. But if you were to put up a cable across the trail and someone were to get hurt as a result, that would be intentional misconduct and you'd be liable. But if someone is accidentally hurt while using the snow machine track or getting ready to use the track, the gross negligence standard would apply. 1:41:30 PM SENATOR HUGGINS asked if he could subsequently deny access to that hypothetical snow machine track. REPRESENTATIVE SEATON said he could. He added that the bill specifically protects landowners from adverse possession or prescriptive easement claims by someone using the property for free for recreation. 1:44:08 PM SENATOR HUGGINS asked if this affects traditional trails running through private property. REPRESENTATIVE SEATON replied this wouldn't change the aspect of traditional trails, but it is important to separate recreational use from access. This bill doesn't address the situation where someone is using a road on private property to gain access to a recreational area. CHAIR FRENCH referred to the scenario Senator Huggins posed and said should this bill pass the landowner who allows access would have a legal problem only if they are guilty of gross negligence. But once a no trespassing sign is posted, the standard of care reverts to negligence. Essentially the standard reverts to what the law is now. He asked if that scenario had been discussed and if he agrees. 1:46:54 PM REPRESENTATIVE SEATON replied that was discussed and it's a different scenario if someone is criminally trespassing by disregarding the no trespassing signs. "You're thrown into a whole different series of obligations when you have criminal trespass." This bill allows free recreational access as compared to someone trespassing. CHAIR FRENCH restated that if this becomes law the standard of care becomes gross negligence, but the standard of care if access is denied is negligence. REPRESENTATIVE SEATON highlighted AS 09.65.200, which is immunity for unimproved land. "So if it's unimproved land the standard is already gross negligence." This involves improved land. It becomes difficult because there are conflicting statutes. For example the standard for abandoned runways is gross negligence. And if you're allowing someone to use your private airstrip it's gross negligence for take offs and landings, but it's a question with regard to walking to and from the plane. If the land is unimproved the standard is gross negligence, but if you've mowed the grass, set a snow machine track, or it you're too close to a barn then the standard is simple negligence. It's confusing for the public and it's difficult for the property owner to know if somebody could get a proscriptive easement if they let someone use their land. This gives the landowner confidence that he or she can help provide recreation in Alaska. "Gross negligence comes down to choices," he said. 1:50:07 PM CHAIR FRENCH consulted Blacks Law Dictionary about the difference between negligence and gross negligence so that the committee has in mind the consequences of this bill. He read the following: Negligence. The omission to do something which a reasonable man, guided by those ordinary considerations which ordinarily regulate human affairs, would do, or the doing of something which a reasonable and prudent man would not do. Negligence is the failure to use such care as a reasonably prudent and careful person would use under similar circumstances; it is the doing of some act which a person of ordinary prudence would not have done under similar circumstances or failure to do what a person of ordinary prudence would have done under similar circumstances. Gross negligence. The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character as distinguished from a mere failure to exercise ordinary care. It amounts to indifference to present legal duty and to utter forgetfulness of legal obligations so far as other persons may be affected. … CHAIR FRENCH opened public testimony. 1:52:32 PM GEORGE SCHAAF, Executive Director, Trail Mix Inc, spoke in strong support of HB 25. Trail Mix is a local non-profit trails organization that was created in part to address complicated landownership problems. He explained that Southeast Alaska has lots of trails and recreational facilities that may begin on public land but any given trail may cross back and forth from federal land, to state parks land, to city land, and to private land. Because no one was interested in maintaining 20 percent of a trail, Trail Mix came along to coordinate trail building and planning efforts in the Juneau community and borough. He said he believes that HB 25 is a well-considered measure that protects the interests of landowners and recreational hikers. MR. SCHAAF reiterated that landownership issues in Southeast Alaska are complicated given the terrain and the amount of public land that's there. In Juneau three trails in particular will be affected by this bill. The trails going up Perseverance Basin and Mount Juneau cross private land owned by the Keen family. They've been fantastic supporters of trails and grant public access, but liability has always been an issue. This bill will go a long way in alleviating some of their concerns. Another trail at Tee Harbor has recently led to some tension among community members because the trail access crosses a corner of private land. Potentially that trail will be rerouted at significant expense because the property owner is afraid of liability. This bill will help address that issue, he said. On behalf of the 350 members of Trail Mix, he restated support for HB 25. This will go a long way toward supporting outdoor recreation and the benefits that provides the community. SENATOR WIELECHOWSKI asked if he's aware of anyone who has been sued for this. MR. SCHAAF said not in Juneau but the concern is out there. Folks in this community have been very trusting and have wanted to maintain open access to recreational areas. You never know what will happen in the future, he added. 1:56:51 PM DAVE BRANN, Kachemak Nordic Ski Club reported that he's worked on recreational trails in the Homer area for about 25 years. A long-standing concern has been trails that cross a variety of properties including private, borough, state, and Native. In fact, potential trail access across private property has been limited because of liability concerns. People in the Homer area have been generous in allowing trail use on their property but there is increasing concern about liability. On behalf of the Kachemak Nordic Ski Club he stated strong support for HB 25. He added that he allows free recreational use of his property and he finds existing statutes to be very confusing; a lot of people don't know what is and isn't allowed. 1:58:44 PM LEAH JENKIN, Homer resident said she owns 10 acres near an equestrian center and ball parks and the state built an access road through part of her property. Although she supports both facilities, she's worried about liability. "When we're talking about children and horses, a landowner needs all the protection they can get." She urged the committee to pass HB 25. 2:00:37 PM MICHAEL SCHNEIDER, Attorney at Law, reported that he's lived in Anchorage since 1975. He said his testimony is based on two assumptions. The first is that this bill was heard by the Senate Resources Committee last session. Second, he assumes that the committee received a copy of his 3/16/07 letter to Representative Seaton addressing his concerns about the bill. CHAIR FRENCH told him that both assumptions are correct. MR. SCHNEIDER said he takes issue with the overriding premise of the bill because there's no way that folks who are interested in public access and trail use can figure out whether a landowner has or has not given permission to use their land. They can't check at the recorders office, for example, because nobody has to do anything official to obtain the immunity status set forth in the bill. His letter suggests a way around that problem so that there would never be any doubt about whether or not a given property is open for public use and the owner is thus entitled to immunity. 2:03:30 PM MR. SCHNEIDER suggested that the bill encourages fraud and perjury by property owners who may be sued in the face of a death or serious injury. Hypothetically the insurance agent will inform the property owner that barring gross negligence, he or she will be immune from suit if the property is open to free recreational use. He surmised that that that defense will be asserted 100 percent of the time even though the property may be open for recreational use less than 100 percent of the time. MR. SCHNEIDER observed that there seems to be a foregone conclusion that if someone engages in a specific conduct, such as pulling a cable across a trail, that amounts to grossly negligent conduct. But whether or not the particular conduct is grossly negligent will be a jury question in virtually every case. Also, he does not agree with the sponsor's statement that the bill is of no benefit to someone who charges for use of their land. Anybody after the fact can divert funds toward hazard remediation and claim the benefit of this loosely worded legislation, he said. Furthermore the term "land" includes a lot of things - including machinery, which would make it difficult to prove liability. It would provide broad immunity under circumstances where the public is receiving nothing tangible in exchange. MR. SCHNEIDER offered his view that from a public policy standpoint the sponsor's intent is a good idea, but the bill needs many things fixed or it's a give away of constituents' rights for virtually nothing in return. 2:07:02 PM ROBERTA HIGHLAND, Homer stated strong support for HB 25. She agrees with Mr. Schneider that it's important to get things right, but she can't imagine that the 45 states that have this law haven't already addressed every potential legal issue. In her view the litigation-happy standard in this country negatively affects quality of life. She'd like attitudes and laws to change such that personal responsibility is given back to the individual. HB 25 begins that process. She explained that she and her husband welcome non-motorized use on the trails on their land and this bill would relieve their concerns about litigation. Trails are an important part in the enjoyment of life. 2:09:11 PM PHILIP PAUL WAGONER, Attorney at Law and Anchorage property owner, said he concurs with Mr. Schneider. He recognizes the good will intent of the bill but it provides such blanket immunity to persons that engage in culpable conduct that it will ultimately shift the responsibility for that conduct to the coffers of the state. He gave examples of several cases where he represented people who were severely injured by cables that were strung across trails. The way the bill is written if any landowner directly or indirectly allows free recreational activity, then it's blanket immunity even if they stretch a cable across a trail. It's also a situation where a landowner could allow a select group to engage in recreational activity without charge and then stretch a cable across the trail for the general public. He expressed the view that the bill really needs to be reworked. "It's always problematic when laws are passed that infringe on constitutional rights" We sometimes forget the fact that the writers of the U.S. and Alaska constitutions granted a right to a jury trial as it existed in common law. That means if someone puts up a dangerous obstacle on developed or undeveloped land they're liable and the resulting harm is shifted to their coffers and not to the victim or the public. He asked the committee to send the bill back for fine-tuning so its purposes can be achieved without providing blanket immunity to people who engage in conduct that will cause serious harm. 2:13:11 PM CHAIR FRENCH asked if he had reviewed Mr. Schneider's March 16, 2007 letter. MR. WAGONER said he had and he concurs with his comments. He understands the good intent but it's dangerous to grant immunity. "As sure as we're all here on this Earth today, if this bill is passed in its present form, somebody's going to get seriously hurt due to culpable conduct and the person is going to escape and … their insurance company is going to escape and the ultimate harm is going to be left to the victim and or the public coffers." 2:13:51 PM SENATOR McGUIRE joined the meeting. 2:14:13 PM JACK MOSBY, former President, Alaska Trails, relayed that this statewide non-profit group was formed to enhance Alaska trail experiences by supporting sustainable trails through advocacy and education. He's aware that liability is a continuing issue with projects in Anchorage, MatSu Valley, and Fairbanks. It sounds as thought it's an issue in other places in the state as well. He reiterated the group's continuing support for HB 25. CHAIR FRENCH asked if he's aware of any lawsuits that hinged on allowing or not allowing access - instances where innocent homeowners have been dragged into a legal dispute because of accidents on trails. MR. MOSBY replied he's not aware of any such cases. CHAIR FRENCH stated his intention to hold the bill for a subsequent hearing. 2:16:17 PM REPRESENTATIVE SEATON distributed two documents to respond to the issues Mr. Schneider raised in his letter. One discusses gross negligence and associated case law. The second is an opinion from legislative legal services about the hypothetical circumstance where a landowner strings a cable on their property that results in the decapitation of a person who is using the property for recreational purposes. He also highlighted that this bill removes the ambiguity between improved land and land that is mowed or a hayfield close to a building. Under current Alaska statute the standard for unimproved lands is gross negligence, but unless protected by HB 25 the hayfield could be considered improved land which has the simple negligence liability standard. CHAIR FRENCH said the committee would look closely at the documents. [HB 25 was held for a subsequent hearing.]