HOUSE JUDICIARY STANDING COMMITTEE March 5, 1993 1:00 p.m. MEMBERS PRESENT Rep. Brian Porter, Chairman Rep. Jeannette James, Vice-Chair Rep. Pete Kott Rep. Gail Phillips Rep. Cliff Davidson Rep. Jim Nordlund MEMBERS ABSENT Rep. Joe Green COMMITTEE CALENDAR HB 41: "An Act relating to civil liability for skiing accidents, operation of ski areas, and duties of ski area operators and skiers; and providing for an effective date." HELD IN COMMITTEE FOR FURTHER CONSIDERATION *HB 167: "An Act relating to air quality control and the prevention, abatement, and control of air pollution; relating to civil and criminal penalties, damages, and other remedies for air quality control violations; clarifying the definition of 'hazardous substance' to include releases and threatened releases to the atmosphere; amending the lien provisions relating to the oil and hazardous substance release response fund; relating to inspection and enforcement powers of the Department of Environmental Conservation; and providing for an effective date." NOT HEARD; RESCHEDULED TO MARCH 10, 1993 (* First public hearing.) WITNESS REGISTER FRED TURTON Juneau Ski Club P.O. Box 32103 Juneau, Alaska 99803 Phone: 789-2396 Position Statement: Supported HB 41 CRISTI HERRiN P.O. Box 21595 Juneau, Alaska 99802 Phone: 586-9857 Position Statement: Supported HB 41 PAUL SWANSON, Manager Eaglecrest Ski Area 155 South Seward Street Juneau, Alaska 99801 Phone: 586-5284 Position Statement: Supported HB 41 RAGA ELIM Special Assistant to the Commissioner Department of Natural Resources 400 Willoughby Avenue Juneau, Alaska 99801-1724 Phone: 465-2400 Position Statement: Supported HB 41 REP. GAIL PHILLIPS Alaska State Legislature Capitol Building, Room 216 Juneau, Alaska 99801-1182 Phone: 465-2689 Position Statement: Prime Sponsor of HB 41 RICHARD HARREN 3830 Birch View Drive Wasilla, Alaska 99654 Phone: 376-7424 Position Statement: Opposed HB 41 CYNTHIA CHRISTIANSEN 2101 Belmont Drive Anchorage, Alaska 99517 Phone: 279-1707 Position Statement: Opposed HB 41 MARC BOND 1007 W. 3rd Ave., #400 Anchorage, Alaska 99501 Phone: 279-3581 Position Statement: Commented on HB 41 BRUCE RIZER 5530 Rabbit Creek Road Anchorage, Alaska 99516 Phone: 345-1743 Position Statement: Opposed HB 41 ROBERT MOSS P.O. Box 1206 Homer, Alaska 99603 Phone: 235-8304 Position Statement: Commented on HB 41 DEBORAH NYE 36975 Maria Court Homer, Alaska 99603 Phone: 235-6811 Position Statement: Commented on HB 41 SUSAN LOWE 6320 Switzerland Drive Anchorage, Alaska 99516 Phone: 345-6854 Position Statement: Opposed HB 41 DAVID LOWE 6320 Switzerland Drive Anchorage, Alaska 99516 Phone: 345-6854 Position Statement: Opposed HB 41 PATTI RIZER 5530 Rabbit Creek Road Anchorage, Alaska 99516 Phone: 345-1743 Position Statement: Opposed HB 41 LAURIE MAPES 5301 Rabbit Creek Road Anchorage, Alaska 99516 Phone: 345-0301 Position Statement: Opposed HB 41 PREVIOUS ACTION BILL: HB 41 SHORT TITLE: CIVIL LIABILITY FOR SKIING ACCIDENTS BILL VERSION: SPONSOR(S): REPRESENTATIVE(S)PHILLIPS,Hudson,Porter,Toohey, Mulder TITLE: "An Act relating to civil liability for skiing accidents, operation of ski areas, and duties of ski area operators and skiers; and providing for an effective date." JRN-DATE JRN-PG ACTION 01/11/93 34 (H) READ THE FIRST TIME/REFERRAL(S) 01/11/93 35 (H) LABOR & COMMERCE, JUDICIARY, FINANCE 01/26/93 (H) L&C AT 03:00 PM CAPITOL 17 01/26/93 (H) MINUTE(L&C) 01/29/93 183 (H) COSPONSOR(S): TOOHEY 02/04/93 (H) L&C AT 03:00 PM CAPITOL 17 02/09/93 (H) L&C AT 03:00 PM CAPITOL 17 02/09/93 (H) MINUTE(L&C) 02/10/93 285 (H) L&C RPT CS(L&C) 5DP 1DNP 02/10/93 285 (H) DP: PORTER, GREEN, MULDER, MACKIE, HUDSON 02/10/93 285 (H) DNP: SITTON 02/10/93 285 (H) -5 ZERO FNS (DNR,COURT,DCED,LAW 02/10/93 285 (H) -LABOR) 2/10/93 02/10/93 285 (H) REFERRED TO JUDICIARY 02/10/93 312 (H) COSPONSOR(S): MULDER 03/05/93 (H) JUD AT 01:00 PM CAPITOL 120 BILL: HB 167 SHORT TITLE: AIR QUALITY CONTROL PROGRAM BILL VERSION: SPONSOR(S): REPRESENTATIVE(S) HANLEY TITLE: "An Act relating to air quality control and the prevention, abatement, and control of air pollution; relating to civil and criminal penalties, damages, and other remedies for air quality control violations; clarifying the definition of `hazardous substance' to include releases and threatened release to the atmosphere; amending the lien provisions relating to the oil and hazardous substance release response fund; relating to inspection and enforcement powers of the Department of Environmental Conservation; and providing for an effective date." JRN-DATE JRN-PG ACTION 02/19/93 390 (H) READ THE FIRST TIME/REFERRAL(S) 02/19/93 390 (H) JUDICIARY, FINANCE 03/05/93 (H) JUD AT 01:00 PM CAPITOL 120 ACTION NARRATIVE TAPE 93-26, SIDE A Number 000 The House Judiciary Committee meeting was called to order at 2:09 p.m. on March 5, 1993. A quorum was present. CHAIRMAN PORTER announced that the meeting was on teleconference. He said that the first item before the committee was HB 41. HB 41 - CIVIL LIABILITY FOR SKIING ACCIDENTS Number 041 FRED TURTON, DIRECTOR OF THE JUNEAU SKI CLUB, cited his many skiing qualifications and associations. He said that he supported HB 41. He stated that as a coach, he strove to provide his students with challenges and encourage their adaptability. He noted that the terrain in Alaska provided a great opportunity to teach that adaptability. (Rep. Nordlund arrived at 2:12 p.m.) Number 123 MR. TURTON commented that one of his goals as a ski instructor was to teach personal responsibility. He said that HB 41 would encourage that responsibility among skiers. He noted that skiing was not accessible to everyone due to the cost. He commented that as litigation increased, so too did the cost of skiing. MR. TURTON stated that injuries were an inherent part of skiing, even when a ski area took many precautions to prevent injuries. He added that skiers choose to go skiing, and they should not be prevented from making that choice and other choices they make while on a ski slope. He commented that without HB 41, a skier's choices would be limited. Number 254 CRISTI HERRIN testified in support of HB 41. She said that in her understanding, HB 41 would hold ski areas responsible for those things which they could control, but would also recognize that ski areas could not control certain elements, and therefore should not be held responsible for them. She said HB 41 seemed like a common-sense approach to her. She added that she was often impressed with how much ski areas did for their customers. She stated that she never felt that her responsibility to take care of herself was abdicated when she skied at a ski area. She expressed her fear that without HB 41, liability costs would skyrocket, making skiing unaffordable to most people. Number 298 PAUL SWANSON, MANAGER OF EAGLECREST SKI AREA, testified in support of HB 41. He noted that there are inherent risks in all sports, but ski area operators also had responsibilities. He commented that HB 41 helped to define those responsibilities and would help all ski areas in Alaska. Number 334 REP. NORDLUND asked Mr. Swanson how a limitation on Eaglecrest's liability would be reflected in insurance rates and ticket prices. Number 345 MR. SWANSON replied that at the present time, Eaglecrest was not a profitable operation, and therefore he could not say how a limitation on liability would affect ticket prices. He added that nationally, there were only two large companies and a couple of smaller ones, that insured ski areas. Number 359 REP. NORDLUND commented that passage of HB 41 would not necessarily result in lower ticket prices. Number 362 MR. SWANSON responded that he could not say that, at least not in the case of Eaglecrest. Number 370 RAGA ELIM, of the DEPARTMENT OF NATURAL RESOURCES, said that he supported HB 41 in general, but wished to address a change that had been made by the Labor and Commerce Committee. He called the members' attention to the top of page 5, section 05.45.040. He said that the change pertained to the method of approving plans of operation. He noted that he had worked with the Senate to amend its bill so as to get the appropriate party to approve an operational plan. He stated that ski areas would either be on state land, federal land, or private land. In the department's opinion, a different authority should be responsible for plan approval, based on land ownership. MR. ELIM indicated that the framework which he had just mentioned appeared in the original HB 41, but was changed in the House Labor and Commerce committee substitute. He said the department recommended that the committee substitute be changed back to the original framework for plan approval. Number 440 CHAIRMAN PORTER indicated that the committee would be addressing several amendments at the conclusion of testimony. REP. GAIL PHILLIPS, PRIME SPONSOR OF HB 41, commented that she had not heard of Mr. Elim's proposed amendment until today. MR. ELIM apologized for not having brought the proposed amendment to the sponsor's attention until today. REP. PHILLIPS stated that the House Labor and Commerce Committee had passed HB 41 out of committee with five "do pass" votes. She said that the goal of HB 41 was to enable Alaskans to continue skiing at a reasonable cost and under safe conditions. She stated that the bill was also intended to promote economic development in the state. She noted that HB 41 was comprised of three parts. The first part, she said, set forth the duties of ski operators and skiers. The second part dealt with liabilities that arose from the violation of those duties. The third part indicated that there were inherent risks in skiing that were the skier's responsibility. She noted that HB 41 expanded the definition of "inherent risk" and provided additional liability protection for ski area operators by imposing additional safety duties on ski area operators and skiers. REP. PHILLIPS commented that HB 41 was supported by a wide range of Alaskans. She said that she wanted to make one minor amendment to the bill. She stated that the Kachemak Bay Ski Club of Homer was concerned that strict adherence to HB 41's provisions would cause the club to cease operations. She added that the club could not conform to the requirement about the qualifications of the ski patrol. Her proposed amendment would exempt the Kachemak Bay Ski Club and the Russian Jack Springs ski area in Anchorage from the ski patrol standards only. REP. PHILLIPS commented that HB 41 had no fiscal impact to the state. She expressed her sympathies to those families who had suffered tragic losses of loved ones as a result of ski accidents. She indicated her view that HB 41 would serve the best interests of all Alaskans. Number 526 RICHARD HERRAN testified in opposition to HB 41, as he said that the bill would increase the risk faced by all skiers. He noted that currently, Alaska ski areas enjoyed a good reputation and good insurance rates. He said that accident rates at ski areas were monitored and impacted a ski area's insurance rates. If HB 41 were to pass, he said, ski areas could reduce the protection offered to skiers because the ski area's exposure to liability would be reduced. That would result in more inherent risk to skiers, he added, and higher insurance rates for the ski areas. Number 551 MR. HERRAN commented that he thought there was a lot of misunderstanding surrounding HB 41. He expressed his opinion that HB 41 would result in less employment for Alaskans due to the ski areas employing fewer people as a result of providing less protection to skiers. He stated that he saw HB 41 as increasing litigation, also. MR. HERRAN noted that in light of the dangers of skiing, insurance costs for ski areas were not that high. He compared the cost of automobile insurance and the hazards of driving with the cost of ski area insurance and the dangers of skiing. Mr. Herran estimated that in only one out of ten cases did an injured skier think about filing a claim, because most skiing accidents were the result of "pilot error." MR. HERRAN urged the committee to not pass HB 41. However, he said that if the committee wanted to pass some sort of skiing liability bill, they should make certain changes to the bill. He outlined his proposed changes. He recommended that the paragraph regarding apportionment of fault be eliminated, saying that it would set a precedent heretofore unheard of in Alaska tort law. MR. HERRAN called the members' attention to page 5, paragraph A. He said that the phrase "and follow" should follow "shall implement." He noted that "implement" was an ambiguous term and would likely be litigated. He said paragraph A should have another subsection which required that if an operator or its predecessor had a plan in effect on January 1, 1993, that plan would operate as a minimum standard for that entity for skier safety in the future. He said that such a provision would ensure that the "state of the art" that a given ski area had achieved would remain in place. MR. HERRAN also recommended a change on page 8, paragraph 5. He said the word "groomed" should be eliminated, because many heavily-used trails at ski areas were not groomed. On page 9, he recommended that the warning include the last sentence of the definition of "inherent risk" found on page 12. Mr. Herran expressed an opinion that Alyeska would not settle claims against it because the company did not want to set a precedent of settling claims. Number 754 REP. PHILLIPS asked Mr. Herran where he practiced law and what type of lawyer he was. Number 757 MR. HERRAN replied that his practice was in Wasilla and he primarily counseled injury victims. TAPE 93-26, SIDE B Number 003 CHAIRMAN PORTER, seeing no other witnesses in Juneau who wished to testify, turned to the teleconference sites. Number 008 CYNTHIA CHRISTIANSEN testified via teleconference from Anchorage. She said that she was an avid skier, the mother of several avid skiers, and a lawyer. She expressed her opinion that the inherent risks of skiing should not be the responsibility of the ski area. However, she commented that HB 41's definition of "inherent risk" included many elements that were the responsibility of the ski area. She added that HB 41 would let ski area operators "off the hook" for many situations that they could control. MS. CHRISTIANSEN spoke of an incident involving her son last year in which he was lost at a ski area. The operator did nothing to help find him, she said. Ms. Christiansen noted that HB 41 essentially made the ski areas only responsible for posting signs. She added that HB 41 placed virtually all responsibility on the skier and none on the operator. Number 108 MS. CHRISTIANSEN commented that HB 41 was an unbelievably bad bill and that it should either be rewritten or thrown in the garbage. Number 124 MARC BOND, an ATTORNEY FOR ALYESKA SKI RESORT and LEGAL COUNSEL FOR THE NATIONAL SKI PATROL SYSTEM, testified via teleconference from Anchorage. He commented that he had been a ski patrol member since 1972. Mr. Bond said that the Minnesota legislature was going through the same process that the Alaska legislature was with regard to skiing liability legislation. He offered to answer any questions that committee members might have. Number 150 REP. DAVIDSON asked Mr. Bond to comment on assertions made by the previous speaker about what was under the operator's control and what the skier needed to take responsibility for. He also asked Mr. Bond how Alyeska worked to make ski areas safe. Number 166 MR. BOND responded that in the event that a drunk snowmachine operator collided with a skier, the ski area operator would be liable. He added that if a lift tower fell over, the operator would also be liable. Regarding an instance in which a skier fell off of a 100-foot cliff on a ski slope, he said that skiers needed to understand that there were variations in terrain, both natural and artificial. Visible variations in terrain were an inherent risk of skiing, he said. He noted that HB 41 required ski areas to mark non-visible obstacles with signs. He concluded by saying that Ms. Christiansen had been incorrect in asserting that in none of those three examples would a ski area be held liable. Number 201 REP. DAVIDSON asked Mr. Bond to comment on the suggested elimination of the word "groomed" on page 8, line 21. Number 205 MR. BOND said that elimination of the word "groomed" made the law unworkable. He commented that it would be unfeasible for a ski operator to mark every single tree within the boundaries of a ski area. REP. DAVIDSON asked if it were correct that Mr. Bond was an attorney working for Alyeska. Number 233 MR. BOND replied that Rep. Davidson was correct. Number 237 REP. DAVIDSON asked Mr. Bond if he, as a parent, would be satisfied that HB 41 included an exhaustive list of the responsibilities of a ski area operator. Number 240 MR. BOND replied that he had young children who would learn to ski shortly. He indicated that HB 41 satisfied him, in that it contained a great deal of direct responsibility for the ski area operator. Also, he noted that an operator's plan would have to be approved by a government agency. REP. DAVIDSON asked Mr. Bond to respond to an earlier comment about Alyeska not wanting to set the precedent of settling claims. Number 270 MR. BOND said that it was well known that there were "easy marks" and not-so-easy marks when it came to litigation defendants. Once one became known as an easy mark, he said, one would get more claims. He noted that if a company paid on some claims and litigated those for which the company felt that it was not responsible, then the company would come to be known as an entity that was willing to make a defense. Number 288 BRUCE RIZER testified via teleconference from Anchorage. He said that for the past two years, the Alaska legislature had considered inherent-risk-of-skiing bills. He commented that this year, the ski industry had mounted a much more polished and expensive campaign to convince legislators to pass a law in the ski industry's self-interest. MR. RIZER said that he had seen arguments in favor of HB 41 and similar bills range from increasing tourism, spelling out the responsibilities of the skier and the ski area operator, increasing investment opportunities, and stopping people from suing ski areas. MR. RIZER said HB 41 put the burden on the skier and assumed that all skiers, even children and beginners, were able to assess broad and often hidden risks. He added that HB 41 provided that if a ski area operator posted certain signs and warned of certain conditions, they had fulfilled their obligation to the public and could not be held liable. MR. RIZER stated that he was shocked by what he had learned about Seibu and its safety procedures. He mentioned that his son, Bart, had died after becoming entrapped in deep, bottomless snow on an open run in the middle of a bowl, in a pocket or waterfall of a stream bed. He said that if HB 41 had been in effect at the time of Bart's death, Seibu would probably have been successful in having a lawsuit thrown out of court. MR. RIZER alleged that Alyeska had a high number of deaths as compared to other ski areas in the nation. He commented that it was nearly impossible to spell out every situation in which a person could be injured. He stated that present Rule 82, Alaska Rules of Civil Procedure, required that anyone who brought an unsuccessful, frivolous lawsuit, be held liable for the costs of the defense. He commented that Rule 82 was a strong deterrent against frivolous lawsuits. Mr. Rizer concluded by saying that the Alaska Supreme Court had recently held that Alaska's inherent-risk-of-skiing statute was fair to both the skier and the ski area operator. Number 436 ROBERT MOSS testified via teleconference from Homer. He asked that the committee consider HB 41's ramifications on the nonprofit Kachemak Bay Ski Club. He noted that the club could comply with all of HB 41's requirements, except for the ski patrol standards. He added that the amendment proposed by the bill's sponsor would allow the club to continue operating. Number 450 DEBORAH NYE, a MEMBER of the KACHEMAK BAY SKI CLUB, testified via teleconference from Homer in support of the amendment proposed by Rep. Gail Phillips. She said that given the small size of the Homer ski area, it was unrealistic to expect compliance with HB 41's ski patrol requirements. She added that the club supported the concept of HB 41. Number 468 REP. NORDLUND asked Ms. Nye what type of supervision and first aid was available at the Kachemak Bay Ski Club area. Number 475 MS. NYE replied that there were two adult club members on the hill at all times, one at the top and one at the bottom. She added that there was a telephone at the ski area and medical help could be summoned immediately after an accident. In the event of an accident, she said, the rope tow would be closed immediately. Number 485 REP. NORDLUND asked who owned the property where the Kachemak Bay Ski Club ski area was located. Number 486 MS. NYE replied that the ski area was on private property. Number 488 REP. NORDLUND asked if the ski area was restricted to club members or if it was open to the general public. Number 490 MS. NYE responded that the ski area was open to the general public. Number 495 SUSAN LOWE, testifying via teleconference from Anchorage, spoke in opposition to HB 41. She said that she was a member of the National Ski Patrol and the mother of five avid skiers. She said that her opposition stemmed from her belief that HB 41 placed all responsibility on skiers. MS. LOWE commented that there were many good provisions in HB 41, but some responsibility needed to be taken by the ski area operator. MS. LOWE read testimony from her husband, David Lowe, into the record. She cited her husband's extensive skiing background. Mr. Lowe contrasted the approach taken by Alyeska in response to the death of Bart Rizer with the response of the Johnson and Johnson Company to the poisoned Tylenol capsule scandal. While Johnson and Johnson was clearly not at fault, he said, the company took responsibility during the situation. At a time when Alyeska ought to be reviewing its health, safety, and public relations policies, he added, it was instead requesting further protection from liability. MR. LOWE commented that HB 41 reinforced the idea that operators should be held blameless in the event of an injury to a skier. He said ski areas could do a lot to reduce risks to skiers. Mr. Lowe added that ski areas encouraged children to become involved in skiing through a variety of means. He said that if ski areas were going to entice children, they needed to do everything possible to ensure that the children would be safe. He noted that some risks could not be eliminated, and a skier had to accept her or his share of the risk. He said that an appropriate balance must be found. He stated that HB 41 leaned too far toward absolving ski areas of any responsibility, and was, in his opinion, special-interest legislation. MR. LOWE commented that Alaska already had a law which spelled out the responsibilities of the ski area and the skier, and adequately addressed the inherent risks of skiing. He said HB 41 would give more protection to ski areas and less to the skiing public. He cited the Bart Rizer case as an example of ski areas ignoring safety in order to protect their commercial interests. TAPE 93-27, SIDE A Number 000 MR. LOWE asserted that if Alyeska were concerned about the safety of the general public, it would take a more pro- active approach by openly discussing the Bart Rizer incident with staff, ski patrol members, and the public. He urged the committee not to pass HB 41, as it only encouraged further neglect of important health and safety issues that could and should be addressed by Alyeska. Number 131 MS. LOWE commented that as a friend of the Rizer family, she was aware that the Rizers wanted to see laws making skiing safe for other children and were not after personal gain. Number 156 PATTI RIZER indicated that she had sent a letter and attachments to committee members and expressed her desire that the members' read what she had sent. She said that Alaska already had an inherent-risk-of-skiing law in place, and the law had been upheld by the Alaska Supreme Court as fair to both skiers and ski area operators. MS. RIZER said that out of 26 states with similar laws, Seibu Corporation had modeled HB 41 after the Colorado law, which gave the ski industry more limited liability than any other state law. She said that after Colorado had passed its law, it had a very deadly ski season and lift ticket prices went up. MS. RIZER reminded the committee members that they represented the people of Alaska. She said that there was no monitor on the ski industry in Alaska. Ms. Rizer added that passage of HB 41 would have no effect on her pending lawsuit against Alyeska. She urged committee members to think about their constituents and not let money sway their votes on HB 41. Number 288 LAURIE MAPES testified via teleconference from Anchorage in opposition to HB 41. She said that ski operators would be freed from a great deal of liability if HB 41 passed. She asked committee members to carefully consider all of the implications of passing HB 41. Number 303 CHAIRMAN PORTER said that the committee would conclude taking testimony on HB 41. He added that the bill would be before the committee again, at a time uncertain. He announced that the committee would quickly take up a letter of intent for HB 2. Committee members reviewed the draft letter of intent. Number 329 REP. JAMES moved to adopt the letter of intent. CHAIRMAN PORTER, hearing no objection, ordered that the letter of intent be adopted by the committee. ADJOURNMENT CHAIRMAN PORTER adjourned the meeting at 3:44 p.m. House Bill 167 was not heard at this time.