CSHB 12(FIN) am - IMMUNITY FOR EQUINE ACTIVITIES REPRESENTATIVE GARY DAVIS, sponsor of HB 12, described the bill as follows. HB 12 establishes the responsibilities and liability of owners, operators, and users of commercial recreational activities for injuries occurring from certain skating and cycling activities. The legislation is supported by many groups. The bill was amended on the House floor to include the liabilities and responsibilities of municipal cycling and skating facilities. He informed committee members he has prepared a proposed amendment to correct technical changes that need to be made to the bill resulting from the House floor amendment. Number 131 CONNIE JONES, representing the Municipality of Anchorage (MOA), stated the MOA has been working on similar legislation for about five years and is very interested in seeing this bill pass. MOA believes this is a fair way to demonstrate the responsibilities of both the user and the operator of commercial recreational facilities. HB 12 does not entirely relieve municipalities of liability; it requires municipalities to construct and maintain a municipal skating or cycling facility in a manner that is not negligent. The Youth Commission, The Anchorage Chamber of Commerce, the Municipal Assembly, the Downtown Anchorage Association, and the municipal government support this legislation. The MOA currently has $83,000 available from bonds and an appropriation from the Assembly to build a skateboard park which it very much wants to do, but will not until this legislation passes. Number 158 RUSS WINNER, representing the Alaska Action Trust, gave the following testimony on what it views as the two aspects of HB 12: commercial recreational activity and skateboarding and cycling. The Alaska Action Trust believes this legislation is unnecessary for three reasons. First, litigation in this area is uncommon, and it is doubtful the litigation that has occurred has had any effect on the growth of the industry. Second, current Alaska law provides for allocation of fault to the plaintiff, based on his or her acceptance of the obvious risks of the activity. Third, the Legislature enacted tort reform legislation last year. That legislation contained caps on compensation for pain and suffering, non-economic damages and punitive damages, and it broadened the ability of a defendant to allocate fault to persons who are not litigants. Further protections in this area are unnecessary. The Alaska Action Trust suggests that the Legislature wait and see what effect the new tort reform legislation has on liability for injuries. The Alaska Action Trust assumes the purpose of this legislation is to reduce insurance rates for the operators of commercial recreational activities, however it is unlikely that insurance rates will be affected by HB 12. Insurance rates are set by companies on a region wide basis and the particular statutes enacted in Alaska will have little, if any, effect on insurance rates. Instead, insurance companies will look at the loss record for the region. One provision of HB 12 states that a customer of commercial recreational activities is contributorily negligent to the extent that the inherent risk of the activity causes his/her harm. The Alaska Action Trust questions whether establishing a policy that says that the user is negligent to the extent that he/she chooses to participate in the activity will result in poor public relations between this industry and tourists and visitors from out of state. MR. WINNER pointed out inconsistent and confusing language in the bill could invite litigation. Section .010 refers to liabilities to the operator for "inherent risks". Section .030 requires participants to learn about the "risks". Section .040 requires the operator to explain the "fundamental inherent risks." He questioned whether the participant is to learn about the inherent risks or a broader category of risks and whether all three types of risks are the same. Also, the bill requires participants to learn about the risks but does not explain how they are to learn, or from whom, nor does the bill address the effect on the allocation of fault if the participant does not learn. The bill imposes certain responsibilities on operators, such as explaining the fundamental inherent risks of the activity. Once again, the bill is silent as to how, and by whom, this explanation is to occur. Also, the effect of having provided an explanation is not clear, therefore litigation over the significance of that requirement could occur. This legislation appears to be special interest legislation and its constitutionality would be subject to attack for that reason. He cited the case of Turner v. Scales as a case in which the Supreme Court struck down similar special interest legislation as unconstitutional. MR. WINNER stated the skating and cycling provisions in HB 12 are similar to the Alaska's ski statutes, AS 05.35.040, but contain significant differences. The ski statute grants certain qualified immunity to ski operators only if they meet certain operational requirements. The ski operator must have an operating plan, a ski patrol, and a policy for removing reckless skiers. Number 273 CHAIRMAN WARD informed committee members that several options for HB 12 are available. The committee could adopt the original bill which only pertains to equine activities. That option will require a resolution to change the title. The second option is to work on the bill as is. Number 281 SENATOR WILKEN moved to adopt the proposed amendments prepared by Representative Davis. SENATOR GREEN asked if it would be appropriate for the committee to adopt the earlier version and bypass the need for the resolution. SENATOR WILKEN asked what version the committee is working from. CHAIRMAN WARD clarified the Senate Transportation Committee substitute in members' packets is the original bill introduced by Representative Davis and pertains to equine activities only. If committee members want to deal with the original bill, the committee will have to adopt a Senate concurrent resolution to change the title. Number 304 SENATOR WILKEN asked if CSHB 12(TRA)am (F.a version) is an active version. REPRESENTATIVE DAVIS explained that version was passed by the House. SENATOR WILKEN asked if Representative Davis' proposed amendments were to CSHB 12(TRA)am. REPRESENTATIVE DAVIS said they are. Number 312 SENATOR HALFORD commented a good portion of that bill creates an exemption from liability for a municipal entity for doing the same thing as a private entity. He asked why an exemption is justified for one and not the other. REPRESENTATIVE DAVIS replied the section relating to commercial recreational activities refers to private entities and does not include municipalities. SENATOR HALFORD asked if the general liability limitation on commercial outdoor activities would apply to a private skateboard facility. REPRESENTATIVE DAVIS said that is his understanding. SENATOR HALFORD maintained the effect of the bill will be to create an exemption for private outdoor activities and for municipal skating and cycling facilities. CHAIRMAN WARD stated that is why a title change will be necessary if the committee chooses to limit the exemption to equine activities. CHAIRMAN WARD announced the motion to adopt Representative Davis' proposed amendments was before the committee, and that he objected to that motion. SENATOR WILKEN asked Chairman Ward why he was objecting. CHAIRMAN WARD said he wanted to have a discussion as to whether the committee should adopt the original bill instead of letting CSHB 12(TRA)am be the instrument that provides public funding for insurance for a sport. Number 353 REPRESENTATIVE DAVIS clarified the proposed amendments only relate to the CSHB 12(TRA)am version, therefore if the motion carries, the committee will still have the option of addressing any version of the legislation. CHAIRMAN WARD said he was unsure whether he wanted to give any consideration at all to CSHB 12(FIN)am. He asked Representative Davis if the version of HB 12 that passed the House does what he originally intended it to do. REPRESENTATIVE DAVIS said it does, but because of the machinations of liability legislation, he tried to address a specific issue rather than a collective issue. CHAIRMAN WARD noted he would like to get HB 12 in a form that the committee is willing to pass out. SENATOR HALFORD asked Chairman Ward if he maintained his objection to adopt the Senate Transportation Committee substitute. CHAIRMAN WARD removed his objection to adopting the proposed amendments. CSHB 12(FIN) am - IMMUNITY FOR EQUINE ACTIVITIES SENATOR GREEN moved SCSCSHB 12(TRA) out of committee with individual recommendations and its accompanying fiscal note. There being no objection, the motion carried.