Legislature(2003 - 2004)

05/18/2003 10:45 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS/AIR                                                                              
Number 0080                                                                                                                     
VICE CHAIR  ANDERSON announced that  the first order  of business                                                               
would  be CS  FOR  SENATE  BILL NO.  175(JUD)(efd  fld), "An  Act                                                               
relating  to civil  liability  for inherent  risks  in sports  or                                                               
recreational activities."                                                                                                       
The committee took an at-ease from 10:46 a.m. to 10:48 a.m.                                                                     
Number 0112                                                                                                                     
SENATOR  RALPH   SEEKINS,  Alaska  State   Legislature,  sponsor,                                                               
paraphrased   his  sponsor   statement,   which  read   [original                                                               
punctuation provided]:                                                                                                          
     Alaska  has many  recreational  opportunities to  offer                                                                    
     outdoor  enthusiasts.    Visitors  from  all  over  the                                                                    
     world,  along  with  in-state  recreationalists  [sic],                                                                    
     enjoy  commercial  activities  such as  river  rafting,                                                                    
     guided hiking,  snowboarding and sport fishing  to name                                                                    
     a  few.   Yet,  the high  cost  of liability  insurance                                                                    
     presents  a significant  barrier to  these enterprises,                                                                    
     the  vast  majority  of which  are  small  Alaska-bases                                                                    
     Without    exception,    participation    in    outdoor                                                                    
     recreational  activities carries  with it  a degree  of                                                                    
     inherent risk.   Senate Bill  175 adds  the presumption                                                                    
     that  a participant  accepts the  inherent  risks of  a                                                                    
     commercial recreation  activity and as such  has played                                                                    
     a  role in  any  damages resulting  from that  inherent                                                                    
     This  legislation   will  decrease   the  uncertainties                                                                    
     regarding the  legal responsibilities for  injuries and                                                                    
     encourage  the   continued  viability   of  responsible                                                                    
     businesses    that   offer    commercial   recreational                                                                    
     activities   to    the   public.       Existing   legal                                                                    
     uncertainties   have   resulted   in   high   liability                                                                    
     insurance costs, which  are prohibitive, especially for                                                                    
     smaller businesses.                                                                                                        
     This  bill  will  help avoid  unfair  and  unreasonable                                                                    
     claims that  make it difficult to  provide recreational                                                                    
     and  outdoor  activities  that are  closely  identified                                                                    
     with the Alaska lifestyle and  have come to be expected                                                                    
     by visitors looking for exceptional experiences.                                                                           
SENATOR SEEKINS remarked that the  high cost of insurance is also                                                               
a substantial barrier to new  businesses, that SB 175 "delineates                                                               
the burden of responsibility"  for businesses offering commercial                                                               
recreation  activities and  persons who  elect to  participate in                                                               
those activities, and that such  businesses are still responsible                                                               
for meeting safety standards and  providing trained and competent                                                               
VICE CHAIR ANDERSON turned the gavel over to Chair McGuire.                                                                     
Number 0269                                                                                                                     
REPRESENTATIVE  GARA noted  that  there have  been  a few  deaths                                                               
caused  by  rafting  on  the  Nenana  River,  and  that  although                                                               
whitewater rafting carries with it  the inherent risk of possibly                                                               
dying, the chances of that  are altered dramatically depending on                                                               
the raft  operator's level of  competence.  Why should  a company                                                               
that hires  incompetent raft operators be  exempt from liability?                                                               
Isn't  that  unfair to  companies  that  do hire  competent  raft                                                               
SENATOR  SEEKINS asserted  that SB  175  "doesn't do  that."   He                                                               
referred to page 3, lines 1-3, which says:                                                                                      
     (c)  This section  does  not apply  to  a civil  action                                                                    
     based  on  the (1)  negligence  of  a provider  if  the                                                                    
     injury,  death, or  damage  was not  the  result of  an                                                                    
     inherent risk  of the  sports or  recreational activity                                                                    
     that was provided                                                                                                          
SENATOR  SEEKINS   opined  that   this  language   provides  that                                                               
companies are  still responsible  for hiring  competent personnel                                                               
and  providing adequate  training.   He referred  to an  incident                                                               
that  occurred a  number of  years ago  in which  a woman  in her                                                               
eighties  died   on  a  rafting   trip,  and  relayed   that  the                                                               
plaintiff's attorney in that case  assured him that under SB 175,                                                               
the  rafting  company  would  not have  been  exempted  from  the                                                               
negligence  claim brought  against it  because it  was clearly  a                                                               
case of negligence  rather than inherent risk.   He asserted that                                                               
the aforementioned attorney  considered SB 175 to  be good public                                                               
policy, and  that it makes  a distinction between  negligence and                                                               
inherent risk.                                                                                                                  
REPRESENTATIVE  GARA observed,  however, that  the aforementioned                                                               
language contains a  conflict because it says that  a provider is                                                               
liable for negligence unless the  damage is caused by an inherent                                                               
risk of  the activity.   Such  would allow  a rafting  company to                                                               
say, "Dying in whitewater, that's  an inherent risk of the sports                                                               
activity," and thereby escape liability  even if the company were                                                               
negligent.    He  asked  Senator  Seekins  whether  he  would  be                                                               
comfortable with  language that simply  said a company  is liable                                                               
if it is negligent.                                                                                                             
Number 0522                                                                                                                     
SENATOR   SEEKINS  said   he  understood   Representative  Gara's                                                               
concern,  acknowledged that  "it could  probably go  either way,"                                                               
but indicated that he felt  the current language to be sufficient                                                               
to  allow  for a  civil  action  based  on  negligence.   In  the                                                               
aforementioned incident, he  said, it was negligence  on the part                                                               
of the provider  because "they didn't look for the  old lady soon                                                               
REPRESENTATIVE GRUENBERG remarked  that in a case  from the early                                                               
1960s, the Alaska  Supreme Court did not adopt  the defense known                                                               
as "assumption  of the risk,"  which had previously  been applied                                                               
in cases  involving injury  to a spectator  at a  sporting event.                                                               
He asked whether SB 175 would include spectators of activities.                                                                 
SENATOR  SEEKINS  said SB  175  would  apply  to people  who  are                                                               
actually  involved in  an activity,  adding that  they should  be                                                               
assuming the inherent risks involved in that activity.                                                                          
REPRESENTATIVE GRUENBERG  asked Senator Seekins whether  he would                                                               
be  willing to  accept an  amendment that  would exclude  passive                                                               
SENATOR  SEEKINS indicated  that  to some  degree, spectators  of                                                               
sporting  events  are participating  in  those  events, and  thus                                                               
should assume the inherent risks involved.                                                                                      
REPRESENTATIVE  SAMUELS said  he agrees  that people  should take                                                               
responsibility  for the  inherent  risks of  the activities  they                                                               
choose to participate in.                                                                                                       
REPRESENTATIVE  GARA said  he agrees  with the  idea that  people                                                               
need  to  take  responsibility  for themselves,  that  there  are                                                               
certain  activities  that are  very  dangerous,  and that  others                                                               
should  not   be  held  responsible  for   mishaps  during  those                                                               
activities.   However, with regard to  the aforementioned rafting                                                               
example, he noted  that Senator Seekins did  acknowledge that the                                                               
language currently in  the bill could allow a  case of negligence                                                               
to "go either way."                                                                                                             
Number 0941                                                                                                                     
REPRESENTATIVE GARA  said that  this is  a problem  for him.   He                                                               
proffered that  were he  in the position  of defending  against a                                                               
claim of  negligence because  someone he took  on a  rafting trip                                                               
died, in order to get out  of being held civilly liable, he would                                                               
rely  on the  language  currently  in the  bill  allowing for  an                                                               
exemption because of  an inherent risk.  He said  he would simply                                                               
make the  argument that he  tells his passengers  beforehand that                                                               
the water  is so cold  in Alaska  that they will  get hypothermia                                                               
within a matter  of minutes, and therefore dying  from falling in                                                               
the water  is an inherent risk  of the activity.   He offered the                                                               
example of a rafting company  hiring someone incompetent who ends                                                               
up dumping  all of his/her passengers  in the river and  they die                                                               
as a result;  the defense for that company could  simply say that                                                               
dying is an inherent risk of  the activity, and the company would                                                               
not be  held liable even  though it  was negligent in  hiring the                                                               
person that was  incompetent.  Why immunize  something like that,                                                               
he asked,  adding that because  people could argue about  how the                                                               
language under discussion should be  interpreted, he did not want                                                               
to provide for that kind of uncertainty in the law.                                                                             
SENATOR SEEKINS predicted that after  determining that the people                                                               
got  in  the  water  in  the   first  place  through  an  act  of                                                               
negligence,  the court  would  simply rule  that  the company  is                                                               
liable.    He  added,  however,   that  the  people  choosing  to                                                               
participate in  the activity accepted  the inherent risk  of that                                                               
CHAIR McGUIRE said she could  see Representative Gara's point, as                                                               
well as  that of  Senator Seekins.   She said  she would  like to                                                               
focus on the drafting of SB 175.                                                                                                
REPRESENTATIVE GARA suggested that  he and Senator Seekins didn't                                                               
disagree.  He added,                                                                                                            
     There  is  some  dividing   line  between  when  you've                                                                    
     engaged in a potentially  dangerous sports activity and                                                                    
     you have to  accept that it's dangerous  - I understand                                                                    
     that.  But I don't want  to throw the baby out with the                                                                    
     bathwater, because  there are also  circumstances where                                                                    
     somebody,  through  complete irresponsibility,  who  is                                                                    
     trying to make  money off of you, does  a terrible job.                                                                    
     And we don't want to encourage that.                                                                                       
SENATOR SEEKINS  indicated that he agrees  that negligence should                                                               
not be  [exempted from  liability].   He said  he doesn't  have a                                                               
problem  with saying  that the  negligent person  should be  held                                                               
responsible, but  that should not include  being held responsible                                                               
for inherent risks.                                                                                                             
Number 1220                                                                                                                     
REPRESENTATIVE  GARA  said  he   agrees  with  Senator  Seekins's                                                               
comments, adding,  however, that he  wants to "get there  and not                                                               
someplace  else."   He  asked  whether  it  would be  alright  to                                                               
rewrite  lines  2-3, on  page  3,  to  essentially say  there  is                                                               
immunity if  the injury, death,  or damage  is the result  of the                                                               
inherent risk  of the  sports or  recreational activity  that are                                                               
provided except insofar as the provider was negligent.                                                                          
REPRESENTATIVE HOLM  opined that language  on page 2,  lines 4-7,                                                               
sums  up what  the  Act is  to do  and  specifies precisely  what                                                               
Representative Gara intends; that language says:                                                                                
     (b)  it is  the  intent of  this Act  to  (1) limit  or                                                                    
     eliminate the  liability of a  provider of a  sports or                                                                    
     recreational activity to a  participant in the activity                                                                    
     when  an  injury   or  damage  caused  by   or  to  the                                                                    
     participant is the result of  the risks inherent in the                                                                    
REPRESENTATIVE  GRUENBERG  remarked  that  in  spectator  sports,                                                               
there  are steps  that can  be taken  by industry  to reduce  the                                                               
risks  to  spectators;  for example,  there  are  high  Plexiglas                                                               
barriers around  ice hockey rinks [and  huge nets are now  put in                                                               
place in  the stands behind  the goals] to  reduce the risk  of a                                                               
spectator getting hit  with a puck.  He turned  attention to page                                                               
3, line  4, and  noted that  it says,  "design or  manufacture of                                                               
sports or recreational equipment  or products or safety equipment                                                               
used".  He  said that he would like the  language to also specify                                                               
the proper  installation of the  equipment and so forth;  thus it                                                               
could read, "design, manufacture, or installation".                                                                             
CHAIR McGUIRE  asked Representative Gruenberg whether  his intent                                                               
is to create  a cause of action against the  person who installed                                                               
the  equipment, or  whether it  is to  create a  cause of  action                                                               
against  the person  who installed  one type  of equipment  while                                                               
knowing that another type should have been installed instead.                                                                   
REPRESENTATIVE GRUENBERG  replied, "Either.  Or  the operators of                                                               
the rink or whoever it was."                                                                                                    
Number 1381                                                                                                                     
SENATOR  SEEKINS opined  that that  would  result in  a cause  of                                                               
action against  someone who was not  the provider, and so  SB 175                                                               
would not provide immunity for that person.                                                                                     
The committee took an at-ease from 11:10 a.m. to 11:15 a.m.                                                                     
REPRESENTATIVE GRUENBERG  indicated that his concern  is that the                                                               
current language  in SB  175 could  be interpreted  two different                                                               
ways and, therefore,  it is unclear as to whether  there would be                                                               
a cause of action if  safety equipment is not installed properly.                                                               
He asked  Senator Seekins:   "If  they fail to  raise the  net or                                                               
fail to install  a Plexiglas shield in a hockey  rink, is it your                                                               
intent to allow a cause of action?  Or not?"                                                                                    
SENATOR SEEKINS replied:                                                                                                        
     I believe  that if  the normal protections  were there,                                                                    
     with the normal installations  ..., for an example, and                                                                    
     someone failed  to put  them in  place, ...  that would                                                                    
     subject the provider to a  certain degree of liability.                                                                    
     And that would not be tolled by this bill.                                                                                 
REPRESENTATIVE GRUENBERG  assured Senator Seekins that  he is not                                                               
referring  to  "the  pickup  hockey  game  or  basketball  game."                                                               
Instead, he  is referring to  the Sullivan Arena or  a university                                                               
rink, for  example, which are  professionally designed  but might                                                               
fail to meet normal [safety precaution] standards.                                                                              
CHAIR  McGUIRE  suggested  to Representative  Gruenberg  that  he                                                               
offer an amendment to address his concern.                                                                                      
Number 1535                                                                                                                     
REPRESENTATIVE GRUENBERG [made a motion  to adopt Amendment 1, to                                                               
add "or installation" to page 3, line 4, after "manufacture"].                                                                  
CHAIR McGUIRE objected.                                                                                                         
Number 1551                                                                                                                     
A roll call  vote was taken.  Representatives  Gara and Gruenberg                                                               
voted in  favor of  Amendment 1.   Representatives  Ogg, Samuels,                                                               
and McGuire voted  against it.  Therefore, Amendment  1 failed by                                                               
a vote of 2-3.                                                                                                                  
CHAIR McGUIRE asked Representative  Gara which amendment he would                                                               
be offering.                                                                                                                    
Number 1574                                                                                                                     
REPRESENTATIVE  GARA  said, "The  longer  one,"  and offered  the                                                               
following handwritten amendment [original punctuation provided]:                                                                
     Delete p. 3 line 2-3                                                                                                       
     Insert   "inherent risk of  the sports  or recreational                                                                    
     activity  that  was  provided, except  insofar  as  the                                                                    
     provider was negligent."                                                                                                   
REPRESENTATIVE GARA went on to say:                                                                                             
     I think everybody  in this room has  the same intention                                                                    
     on  this  bill,  but   currently  the  wording  doesn't                                                                    
     satisfy that  intention.  The  wording at page  3, line                                                                    
     2,  says, and  will  be interpreted,  that  if you  are                                                                    
     negligent,  you are  not  liable if  it  was within  an                                                                    
     activity  where  the inherent  risk  is  such that  you                                                                    
     should expect  that you might die  or be hurt.   So, if                                                                    
     you are negligent, you're still not liable.                                                                                
     And  I  don't  believe  that's  the  intention  of  the                                                                    
     sponsor of  the bill.   And so what the  amendment says                                                                    
     is  that you  should clearly,  clearly be  immunized if                                                                    
     you are  injured because  of the  inherent risk  ... of                                                                    
     the  activity,  but  if  you  are  injured  because  of                                                                    
     somebody's negligence, then you're  not immunized.  And                                                                    
     that will  be the standard  that the court  will impose                                                                    
     on us; the  jury will be asked, "Was it  because of the                                                                    
     inherent risk, or was [it]  because of the negligence?"                                                                    
     And  if it's  because  of the  negligence, then  you're                                                                    
     just  not   immunized.    And   I  believe,   from  the                                                                    
     discussion, that that seems to  be the intent of all of                                                                    
     us, and this language gets us there.                                                                                       
SENATOR SEEKINS  pointed out  however, that  the language  in the                                                               
bill would  then read, "This  section does  not apply to  a civil                                                               
action based on  the inherent risk of the  sports or recreational                                                               
activity that  was provided, except  insofar as the  provider was                                                               
negligent."   He  opined that  this was  exactly the  opposite of                                                               
what's been discussed.                                                                                                          
REPRESENTATIVE  GARA  acknowledged   that  "there's  a  negative;                                                               
Senator Seekins is correct."                                                                                                    
Number 1653                                                                                                                     
CHAIR  McGUIRE  suggested  putting  the  offered  language  in  a                                                               
different part of the bill.  She said:                                                                                          
     Section  3  is where  it  sets  out those  things  that                                                                    
     you're   immunized   from,    essentially,   and   then                                                                    
     [subsection] (c)  is sort of  the carve out -  it's the                                                                    
     caveat, it's  the exception.   So it's saying  the rule                                                                    
     is  [proposed Sec.]  09.65.290, and  that sets  it out:                                                                    
     "Civil   liability    for   sports    or   recreational                                                                    
     activities."  And  then it goes on to  say, "But please                                                                    
     understand,   essentially,  you   can  still   sue  for                                                                    
     negligence  of  a provider  if  the  injury, death,  or                                                                    
     damage  was not  the  result of  inherent  risk of  the                                                                    
     sports activity."                                                                                                          
REPRESENTATIVE  GARA   remarked  that   he  is   [rewriting]  his                                                               
Number 1687                                                                                                                     
STEVE CONN, Special Projects  Coordinator, Alaska Public Interest                                                               
Research Group  (AkPIRG), said that  one of his concerns  is that                                                               
many tourist  ventures run  by small  operators are  sold through                                                               
cruise  ship lines,  and so  these cruise  ship lines  may "serve                                                               
up," to the  small operators, people that the  small operator may                                                               
or  may not  want to  have participate  in the  activity offered.                                                               
"It's going to put quite a  burden on that small operator because                                                               
all  shapes  and sizes  come  on  the  cruise ships,"  he  added.                                                               
Another concern he said he has  is that if misinterpreted, SB 175                                                               
will do  damage to  Alaska's ability  to attract  participants to                                                               
Alaska's fledgling tourist industry  by suggesting that Alaska is                                                               
attempting  to block  providers'  normal responsibilities  during                                                               
activities  that do  have  some inherent  risk.   He  said he  is                                                               
assuming that  the committee will  consider both of  his concerns                                                               
as general policy matters while it proceeds with the bill.                                                                      
Number 1825                                                                                                                     
REPRESENTATIVE  OGG  said  he objects  to  Representative  Gara's                                                               
REPRESENTATIVE GARA  indicated that  he withdrew  it in  order to                                                               
create a new version of it.                                                                                                     
CHAIR  McGUIRE, after  determining  that no  one  else wished  to                                                               
testify, closed the public testimony on SB 175.                                                                                 
Number 1853                                                                                                                     
REPRESENTATIVE GRUENBERG  made a motion  to adopt Amendment  2, a                                                               
handwritten   amendment   which    read   [original   punctuation                                                               
     e  This  section does not apply if the  cause of action                                                                    
     is based upon the  failure of a professionally designed                                                                    
     sports  arena   to  have   or  utilize   normal  safety                                                                    
     equipment  designed  to  protect patrons  who  purchase                                                                    
     tickets to watch sporting events.                                                                                          
Number 1862                                                                                                                     
CHAIR McGUIRE objected.                                                                                                         
REPRESENTATIVE GRUENBERG  said the purpose  of Amendment 2  is to                                                               
protect  spectators  who  purchase tickets  at  a  professionally                                                               
designed  sports  arena that  fails  to  have or  utilize  normal                                                               
safety  equipment designed  to protect  them.   He said  he wants                                                               
this  point to  be  clearly  stated so  that  it  is not  subject                                                               
interpretation.   In  response to  another  member's concern,  he                                                               
said that he is referring  to professional sports arenas that are                                                               
designed using  national standards, and  that he does  not expect                                                               
owners of  such arenas  to put  up brick  walls, for  example, in                                                               
order to protect  spectators.  He assured members that  he is not                                                               
suggesting that  sports arenas  put up  anything other  than what                                                               
they would  normally have, but  if the  arenas fail to  meet just                                                               
normal  national  standards  or  neglect  to  utilize  what  they                                                               
already have, then they would be liable.                                                                                        
REPRESENTATIVE GARA  mentioned that the whole  issue of liability                                                               
to sports arenas  almost never comes up.  Under  existing law, if                                                               
an arena  is built to  national safety standards, the  jury would                                                               
be told that, "and  they would laugh at the case  and it would be                                                               
done with,"  he added.   He said he  has no interest  in changing                                                               
the bill in the manner proposed  by Amendment 2 "because it's not                                                               
a liability problem in the first place."                                                                                        
REPRESENTATIVE  GRUENBERG  said  he  is  simply  concerned  about                                                               
instances in  which sport  arenas clearly  fail to  meet national                                                               
safety standards,  adding that he  doesn't want SB 175  to change                                                               
the normal jury instruction in such cases.                                                                                      
REPRESENTATIVE  GARA opined  that  as currently  written, SB  175                                                               
would change  the jury instruction in  lot of areas unless  it is                                                               
altered such that "negligence is still in there."                                                                               
REPRESENTATIVE  GRUENBERG  said  he   would  not  want  to  adopt                                                               
Amendment 2 if  it wouldn't have any effect  on current practice,                                                               
adding that he just wants to keep the normal standard.                                                                          
Number 2005                                                                                                                     
REPRESENTATIVE GARA posited that if  SB 175 could be clarified to                                                               
reflect  that one  is still  liable  for negligence  but not  for                                                               
inherent risk,  then Amendment 2  will not be necessary.   Absent                                                               
that clarification, however, Amendment 2 will be necessary.                                                                     
REPRESENTATIVE  GRUENBERG  reiterated  that  his  intent  is  for                                                               
Amendment 2 to  only pertain to situations  in which professional                                                               
sports arenas do not meet normal national standards.                                                                            
CHAIR  McGUIRE  said  she understood  Representative  Gruenberg's                                                               
intent in offering  Amendment 2.  However, she remarked,  it is a                                                               
hastily   crafted   amendment    that   could   have   unforeseen                                                               
consequences.  For  example, she said that she  doesn't know what                                                               
normal  national safety  standards  are with  regard to  sporting                                                               
arenas.  She  reiterated that she objects to  Amendment 2, adding                                                               
that she thinks  Representative Gara is correct in  that the jury                                                               
in a  cause of  action resulting  from an  injury occurring  at a                                                               
sports arena  will be  told whether the  arena met  with national                                                               
REPRESENTATIVE GRUENBERG said that if  such is the case, he would                                                               
be satisfied,  reiterating that  he just doesn't  want SB  175 to                                                               
change that.   He asked Senator  Seekins whether such a  cause of                                                               
action would  still be allowed under  SB 175, adding that  if the                                                               
answer is yes, he would withdraw Amendment 2.                                                                                   
SENATOR SEEKINS said he doesn't  know whether there is a national                                                               
standard.  He offered his belief,  however, that SB 175 would not                                                               
immunize a  sports arena  that left one  of the  Plexiglas panels                                                               
down during a hockey game.                                                                                                      
REPRESENTATIVE GRUENBERG withdrew Amendment 2.                                                                                  
CHAIR  McGUIRE  turned  attention to  Representative  Gara's  new                                                               
proposed  amendment, which  - because  the  amendment offered  by                                                               
Representative Gruenberg was withdrawn -  she then referred to as                                                               
[Conceptual] Amendment 2.                                                                                                       
Number 2134                                                                                                                     
REPRESENTATIVE GARA  made a  motion to  adopt his  amendment, now                                                               
called   [Conceptual]   Amendment   2,  which   reads   [original                                                               
punctuation provided]:                                                                                                          
     Insert at p 3 line 7                                                                                                       
          (d) Immunity under this section shall apply if                                                                        
          the injury is the result of the inherent risk of                                                                      
          the sports or recreational activity that was                                                                          
          provided, except insofar as the provider was                                                                          
          negligent, and the negligence caused the injury.                                                                      
Number 2144                                                                                                                     
REPRESENTATIVE SAMUELS objected for the purpose of discussion.                                                                  
REPRESENTATIVE GARA said:                                                                                                       
     This leaves  the sanctity of the  original language, so                                                                    
     that  Senator Seekins's  intent is  clear.   And so  on                                                                    
     page 2  and on page 3  it states ..., if  it's inherent                                                                    
     risk, you're  not liable if  that's the reason  for the                                                                    
     injury, but then it just  clarifies in a new subsection                                                                    
     (d), right after that discussion on page 3 ...                                                                             
CHAIR   McGUIRE  interjected   to   clarify   that  the   current                                                               
subsections following  the insertion  of this new  subsection (d)                                                               
would be relettered accordingly.                                                                                                
REPRESENTATIVE GARA said that  in essence, [Conceptual] Amendment                                                               
2 would clarify  that if the injury is the  result of negligence,                                                               
the immunity  shall not  apply.   In this way,  the focus  of the                                                               
question will be, "Was it the  result of the inherent risk or was                                                               
it the result of negligence?"                                                                                                   
SENATOR  SEEKINS  opined  that [Conceptual]  Amendment  2  simply                                                               
restates the language already in the bill.                                                                                      
Number 2215                                                                                                                     
CHAIR  McGUIRE suggested  instead that  perhaps page  3, line  2,                                                               
could be  altered to say  that the  section doesn't apply  if the                                                               
negligence was the cause of the injury, death, or damage.                                                                       
Number 2231                                                                                                                     
REPRESENTATIVE GARA  relayed that the committee  aide has created                                                               
language  that simply  says, "This  section does  not apply  to a                                                               
civil action based on the negligence of a provider."                                                                            
CHAIR  McGUIRE   noted,  however,  that  what   she  likes  about                                                               
Representative  Gara's  language  is   that  it  says,  "and  the                                                               
negligence caused the injury."                                                                                                  
REPRESENTATIVE GARA  offered that  that is  why he,  too, prefers                                                               
his language.  "I think it  protects the provider much better and                                                               
protects the consumer;  the focus is on which one  caused it," he                                                               
SENATOR  SEEKINS  remarked  that  he  understands  Representative                                                               
Gara's intention.   He  returned to his  earlier remark  that the                                                               
court is  first going  to ask  how a person  got into  the water:                                                               
was it  because of  the inherent  risk or was  it because  of the                                                               
negligence.    He  opined  that SB  175,  as  currently  written,                                                               
already address  that issue -  if the  person got into  the water                                                               
because  of  the  provider's  negligence, there  is  a  cause  of                                                               
action, but  if the person dies  because of the inherent  risk of                                                               
the activity, there isn't a cause of action.                                                                                    
REPRESENTATIVE GARA replied:                                                                                                    
     With  all  due  respect,  Senator  Seekins,  what  will                                                                    
     happen is,  the question  in the  case is  always, "How                                                                    
     did she die."  ... And one of  the how-did-she-dies was                                                                    
     that  she   was  rafting  a  glacial   river,  she  got                                                                    
     hypothermia,  she should  have known  that if  she fell                                                                    
     into the river she would  have got hypothermia.  And so                                                                    
     once that's  the how-did-she-die answer, ...  there's a                                                                    
     very big  risk the  court is going  to say,  "Well that                                                                    
     was an  inherent risk."  And  that's why we have  to be                                                                    
     more clear  in this  bill or else  we're just  going to                                                                    
     throw a statute over [to]  the courts and we'll have no                                                                    
     idea how it's going to be interpreted.                                                                                     
REPRESENTATIVE  GARA  said  that  if   this  concern  of  his  is                                                               
addressed  by  an amendment,  he  would  work with  the  minority                                                               
leader and  members of the Senate  to make sure that  the bill is                                                               
not held  up on the floor,  because he thinks that  the sponsor's                                                               
intention in introducing this legislation is good one.                                                                          
Number 2345                                                                                                                     
CHAIR McGUIRE relayed  that the committee aide  has suggested the                                                               
following language  change, such  that on page  3, lines  2-3, it                                                               
would  read, "an  action or  failure to  take action  that was  a                                                               
result of  an inherent risk,  except insofar as the  provider was                                                               
negligent,  and  the negligence  was  a  proximate cause  of  the                                                               
CHAIR McGUIRE  asked Senator Seekins  whether it is just  that he                                                               
doesn't even want  the issue of negligence to be  raised.  "Is it                                                               
that you just want to say,  plain and simple, "if you go rafting,                                                               
whether people are  negligent or not, forget it."   She indicated                                                               
that she  could not tell, by  the current language in  bill, what                                                               
his intent is.                                                                                                                  
SENATOR SEEKINS again reiterated his  belief that the court would                                                               
ask the  question, how  did the  person get  into the  water, and                                                               
that if  it was via  negligence, then there  would be a  cause of                                                               
action.  However,  he added that if the person  got into the raft                                                               
knowing he/she  was going to  get wet  and that that  would cause                                                               
health problems,  then that is  something for which  the provider                                                               
should not be held liable.                                                                                                      
TAPE 03-70, SIDE B                                                                                                            
Number 2369                                                                                                                     
SENATOR SEEKINS then said that  he wants people who are negligent                                                               
to still be held responsible.   He opined that if a provider uses                                                               
the wrong size raft, or uses  people that aren't trained, then SB                                                               
175 would  hold them responsible  for that negligence.   He again                                                               
added,  however,   that  SB  175   would  not  hold   a  provider                                                               
responsible for death,  injury, or damage that was  the result of                                                               
inherent risk.                                                                                                                  
CHAIR McGUIRE suggested setting HB 175 aside.                                                                                   
REPRESENTATIVE GARA  opined that either his  proposed language or                                                               
the  committee aide's  proposed language  would make  the statute                                                               
clear  and accomplish  everyone's  goals.   Without some  change,                                                               
however, that  goal will not  be accomplished, he predicted.   He                                                               
asked members to support one  of the two suggestions, adding that                                                               
he is confident that  if such is done, he can  get the bill moved                                                               
on the "House side."                                                                                                            
The committee took an at-ease from 11:43 a.m. to 11:45 a.m.                                                                     
Number 2321                                                                                                                     
CHAIR  McGUIRE,  upon  the  committee's  return,  indicated  that                                                               
during the  at-ease, members came to  agreement that [Conceptual]                                                               
Amendment 2 would do the following:                                                                                             
     page 3, lines 2-3                                                                                                          
     delete:  "injury, death, or damage was not the result                                                                      
       of an inherent risk of the sports or recreational                                                                        
     activity that was provided"                                                                                                
      insert:  "negligence was the proximate cause of the                                                                       
     injury, death, or damage"                                                                                                  
Number 2296                                                                                                                     
CHAIR McGUIRE made a motion to adopt Conceptual Amendment 2.                                                                    
REPRESENTATIVE GARA said  he would be honored to  be a co-sponsor                                                               
of Conceptual Amendment 2.                                                                                                      
Number 2290                                                                                                                     
CHAIR  McGUIRE asked  whether there  were any  objections to  the                                                               
motion.  There being none, Conceptual Amendment 2 was adopted.                                                                  
REPRESENTATIVE SAMUELS  noted that  page 3,  line 12,  contains a                                                               
typo:     "sport   of  recreational"   should   read  "sport   or                                                               
CHAIR McGUIRE announced that Amendment  3 would, after "sport" on                                                               
page 3, line 12, replace "of" with "or".                                                                                        
Number 2265                                                                                                                     
REPRESENTATIVE  SAMUELS  made  a  motion to  adopt  Amendment  3.                                                               
There being no objection, Amendment 3 was adopted.                                                                              
Number 2257                                                                                                                     
REPRESENTATIVE  GARA  made a  motion  to  adopt Amendment  4,  to                                                               
delete lines 7-9 on page 3.  The language being deleted reads:                                                                  
     Nothing in this section  shall be construed to conflict                                                                    
     with  or  render  as ineffectual  a  liability  release                                                                    
     agreement  between  a  person  who  participates  in  a                                                                    
     sports or recreational activity and a provider.                                                                            
CHAIR McGUIRE  indicated that  she disagrees  with [the  goal of]                                                               
Amendment 4.                                                                                                                    
The committee took an at-ease from 11:52 a.m. to 11:54 a.m.                                                                     
REPRESENTATIVE GARA  relayed that there  is an existing  law used                                                               
by the courts regarding whether to  uphold a release.  He said he                                                               
did not know how the courts  will interpret the language on lines                                                               
7-9, and that  he did not know whether, "at  this late hour, with                                                               
very little reflection," current law should be changed.                                                                         
CHAIR  McGUIRE said  she  thinks  the court  has  the ability  to                                                               
determine whether a release was  signed under duress; whether the                                                               
waiver was clear; and whether  the person signing the release was                                                               
of reasonable  age, intelligence,  and so  on to  understand what                                                               
he/she was  signing.   She opined that  waivers are  an important                                                               
part of life today.                                                                                                             
REPRESENTATIVE GARA mentioned  that what he doesn't  want to have                                                               
happen is for a  provider to use the language on  lines 7-9 as an                                                               
incentive to create a waiver  that says, "And you're also waiving                                                               
any action if I'm negligent or reckless."                                                                                       
SENATOR  SEEKINS  pointed out  that  the  language on  lines  7-9                                                               
starts off  with "Nothing in  this section shall be  construed to                                                               
conflict with or render".                                                                                                       
Number 2137                                                                                                                     
REPRESENTATIVE  GARA  concurred  with  that  point  and  withdrew                                                               
Amendment 4.                                                                                                                    
Number 2125                                                                                                                     
REPRESENTATIVE SAMUELS  moved to  report CSSB  175(JUD)(efd fld),                                                               
as  amended, out  of  committee  with individual  recommendations                                                               
[and  the  accompanying  zero  fiscal  note].    There  being  no                                                               
objection,  HCS  CSSB  175(JUD)   was  reported  from  the  House                                                               
Judiciary Standing Committee.                                                                                                   

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