Legislature(2003 - 2004)

03/22/2004 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HB 273 - PARENTS' WAIVER OF CHILD'S SPORTS CLAIM                                                                              
                                                                                                                                
Number 1424                                                                                                                     
                                                                                                                                
CHAIR McGUIRE  announced that the  final order of  business would                                                               
be SPONSOR  SUBSTITUTE FOR HOUSE  BILL NO. 273, "An  Act relating                                                               
to the right  of a parent to waive a  child's claim of negligence                                                               
against a provider of sports or recreational activities."                                                                       
                                                                                                                                
The committee took an at-ease from 2:24 p.m. to 2:25 p.m.                                                                       
                                                                                                                                
Number 1402                                                                                                                     
                                                                                                                                
VANESSA  TONDINI, Staff  to Representative  Lesil McGuire,  House                                                               
Judiciary   Standing   Committee,   Alaska   State   Legislature,                                                               
explained,  on behalf  of  the  sponsor, Representative  McGuire,                                                               
that  SSHB  273  gives  legal   effect  to  release  waivers  and                                                               
permission slips, such as those giving a child the ability to                                                                   
participate in some activity.                                                                                                   
                                                                                                                                
Number 1351                                                                                                                     
                                                                                                                                
REPRESENTATIVE HOLM moved to adopt the proposed committee                                                                       
substitute (CS) for SSHB 273, Version 23-LS0966\I, Bullock,                                                                     
3/19/04, as the work draft.                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG objected, but ultimately removed his                                                                   
objection once it was clarified that Ms. Tondini was going to                                                                   
explain [Version I].                                                                                                            
                                                                                                                                
CHAIR McGUIRE announced that Version I was before the committee.                                                                
                                                                                                                                
MS. TONDINI paraphrased from the sponsor statement, which read                                                                  
[original punctuation provided]:                                                                                                
                                                                                                                                
     Children  in  the  State of  Alaska  should  enjoy  the                                                                    
     maximum  opportunity   to  participate  in   sports  or                                                                    
     recreational activities,  despite the presence  of risk                                                                    
     in  such activities.   Public,  private, and  nonprofit                                                                    
     entities   that   provide    sports   or   recreational                                                                    
     activities to  children need and  deserve a  measure of                                                                    
     protection against  lawsuits, and without  that measure                                                                    
     of protection,  may be unwilling  or unable  to provide                                                                    
     such activities.  Parents have  a fundamental right and                                                                    
     responsibility to  make decisions concerning  the care,                                                                    
     custody, and  control of their  children.  The  law has                                                                    
     long presumed that parents are  in the best position to                                                                    
     determine  what  is  in the  best  interests  of  their                                                                    
     children.   Parents are accustomed to  making conscious                                                                    
     choices  on   behalf  of   their  children   every  day                                                                    
     regarding the benefits and  risks of various activities                                                                    
     available to  their children.   Such  parental choices,                                                                    
     when   made    voluntarily   upon    consideration   of                                                                    
     appropriate  information, should  not  be ignored,  but                                                                    
     rather should  be afforded the  same dignity  and legal                                                                    
     effect  as other  parental  choices, including  choices                                                                    
     regarding education  and medical  treatment.   SSHB 273                                                                    
     furthers these truisms  and encourages the availability                                                                    
     and   affordability   of    sports   and   recreational                                                                    
     activities to  children by recognizing  the right  of a                                                                    
     parent to  choose to release,  on behalf of his  or her                                                                    
     child,  prospective negligence  based  claims that  the                                                                    
     child  may   accrue  against   the  provider   of  such                                                                    
     activities.                                                                                                                
                                                                                                                                
     As a  result of a  recent Colorado Supreme  Court case,                                                                    
     Cooper v.  Aspen Skiing Co., wherein  the Court refused                                                                  
     to uphold or  recognize the mother of  a seventeen year                                                                    
     old skier's signature  on a release document  used in a                                                                    
     juvenile race  camp program,  the outdoor  industry has                                                                    
     been  trying  to respond  to  the  myriad problems  and                                                                    
     potentially  severe   ramifications  created   by  this                                                                    
     holding.   The  faulty  rationale  behind Colorado  and                                                                    
     other  western states'  decisions  has  been the  legal                                                                    
     premise  that,   since  a  minor  is   not  capable  of                                                                    
     releasing his or her own  rights to sue because a minor                                                                    
     is  not  legally  competent  to  contract  and  release                                                                    
     documents  that  are  contractual  in  nature,  that  a                                                                    
     parent should not be capable  of releasing on behalf of                                                                    
     the minor child.                                                                                                           
                                                                                                                                
     This  erroneous  rationale is  contrary  to  a body  of                                                                    
     authority derived  from Midwestern and  Eastern states,                                                                    
     which  find  that  parents  do  specifically  have  the                                                                    
     legally  binding right  to  sign  release documents  on                                                                    
     behalf of their  minor children.  In  these states, the                                                                    
     courts  have  articulately  stated that  prohibiting  a                                                                    
     parent's  right to  release  or waive  on  behalf of  a                                                                    
     minor   child   would   detrimentally   chill   school,                                                                    
     scouting,  athletic,  and  similar type  programs  from                                                                    
     being able  to offer athletic, recreational,  and other                                                                    
     extra-curricular  programs.     There  exists  a  well-                                                                    
     settled  legal history  of recognizing  parental rights                                                                    
     regarding making decisions on  behalf of minor children                                                                    
     regarding  education and  medical  treatment.   To  not                                                                    
     extend  the same  logic to  recreational activities  in                                                                    
     Alaska would be legally illogical and unfair.                                                                              
                                                                                                                                
     The  practical  consequences  of not  recognizing  this                                                                    
     parental  authority  are  profound.     If  an  outdoor                                                                    
     recreation  company is  found  to  have been  operating                                                                    
     without   a  valid   release/waiver  document,   either                                                                    
     insurance  coverage  will not  be  offered  or will  be                                                                    
     voided.    Very  few  programs will  stay  in  business                                                                    
     without  proper  insurance in  place.    As an  outdoor                                                                    
     recreation-oriented and supported  state, Alaska simply                                                                    
     cannot stand  by and  watch this type  of result.   The                                                                    
     Alaska  Supreme  Court has  gone  in  the direction  of                                                                    
     requiring pre recreational  release/waiver documents to                                                                    
     be clearly and unambiguously  drafted and has expressed                                                                    
     concerns over  the specificity of the  language used in                                                                    
     those documents.   Given the  Court's careful  focus on                                                                    
     this  subject,  along  with   the  developing  line  of                                                                    
     authority in  the western states, it  is important that                                                                    
     the legislature  address this  matter before  the court                                                                    
     system is  called upon to  rule on whether it  is legal                                                                    
     for  a  parent or  legal  guardian  to sign  a  release                                                                    
     document on behalf of a minor child.                                                                                       
                                                                                                                                
     In addition, it is important  to note that HB 273 would                                                                    
     not defeat in  any way a parent or  guardian's right to                                                                    
     sue an  operator that is  not providing a  safe service                                                                    
     or  program.     An  ordinary  release/waiver  document                                                                    
     provides only  a release to  causes of  action sounding                                                                    
     in negligence.   Claims of gross  negligence, reckless,                                                                    
     or  intentional  misconduct  are never  released  in  a                                                                    
     release/waiver  document.    It   is  also  crucial  to                                                                    
     remember   that,   with   respect   to   pre-recreation                                                                    
     releases,  these documents  regard activities  that are                                                                    
     totally voluntary  in nature; they are  activities that                                                                    
     regard personal  choice for the participant.   As such,                                                                    
     participants  and parents  of participants  should have                                                                    
     the  freedom to  decide  which  sports or  recreational                                                                    
     activities  they want  to participate  in or  that they                                                                    
     want to  have their children participate  in and should                                                                    
     have   the   freedom   to  contract   regarding   these                                                                    
     activities.   That  fundamental right  to make  choices                                                                    
     regarding  a  child's  activities   is  what  is  being                                                                    
     protected  here; the  bill does  not negate  a parent's                                                                    
     rights, it in fact strengthens them.                                                                                       
                                                                                                                                
Number 1011                                                                                                                     
                                                                                                                                
MS. TONDINI  concluded by requesting  the committee's  support of                                                               
this  legislation.   In response  to Chair  McGuire, Ms.  Tondini                                                               
informed the  committee that Version I  incorporates some changes                                                               
suggested  by the  Office  of Children's  Services  (OCS) in  the                                                               
Department  of Health  and Social  Services (DHSS).   On  page 3,                                                               
lines 1  and 7-8, subparagraph  (B) was changed  and subparagraph                                                               
(E) was  added so that a  representative of the DHSS  will be the                                                               
representative of a child in the state's legal custody.                                                                         
                                                                                                                                
REPRESENTATIVE SAMUELS asked  if a young person under  the age of                                                               
18 needs a parent to be present in order to rent skis.                                                                          
                                                                                                                                
Number 0825                                                                                                                     
                                                                                                                                
TRACEY  L.  KNUTSON,  Attorney  at Law,  Sisson  &  Knutson,  PC,                                                               
answered that  it depends upon the  particular operator's habits,                                                               
policies,  and  procedures.   For  instance,  the Alyeska  Resort                                                               
requires that a child or someone  underage have a parent sign the                                                               
[waiver]  document.   However, she  noted,  a less  well-prepared                                                               
recreational  provider  might  not  require  [the  above].    Ms.                                                               
Knutson  opined that  very  few  recreational providers,  whether                                                               
those offering  rentals or services and  programs, allow children                                                               
to  sign  their  own  release.    Ms.  Knutson  highlighted  that                                                               
children don't  have the legal capacity  under the law to  sign a                                                               
[waiver]  contract  and  policy   documents  are  contractual  in                                                               
nature.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG turned attention  to page 3, lines 9-10,                                                               
which refers  to AS  09.65.290, and  pointed out  that subsection                                                               
(e)(2) specifies:   "(2) 'provider' means a person  or a federal,                                                               
state, or municipal  agency that promotes, offers,  or conducts a                                                               
sports or recreational activity,  whether for pay or otherwise;".                                                               
However,  he remarked,  AS 09.65.290(e)(3)(B)(iii)  says that  it                                                               
doesn't include "skiing or sliding  activities at a ski area that                                                               
are subject to the requirements of  AS 05.45".  He inquired as to                                                               
the  types  of  skiing  or   sliding  activities  that  would  be                                                               
excluded.                                                                                                                       
                                                                                                                                
MS. KNUTSON  reminded the committee  that the  legislature passed                                                               
the "Ski Area  Safety Act of 1994"  a number of years ago.   As a                                                               
result  of  that  Act,  ski   areas  don't  use  written  release                                                               
documents;  rather,  an  individual   purchases  a  ticket  which                                                               
specifies the inherent  risks [or the activity].   Therefore, the                                                               
issue of a release doesn't really  apply to a ski area.  However,                                                               
the smaller  groups that operate around  a ski area, such  as the                                                               
Mighty   Mites,  do   use  written   release   documents.     The                                                               
aforementioned is  the reason why  ski areas weren't  included in                                                               
the inherent-risk  legislation that  came before  the legislature                                                               
last year.                                                                                                                      
                                                                                                                                
REPRESENTATIVE GRUENBERG  then turned  attention to page  3, line                                                               
6,  which refers  to AS  14.30.325.   The aforementioned  statute                                                               
allows  the  Department of  Education  and  Early Development  to                                                               
appoint  a surrogate  parent to  represent  disabled children  in                                                               
matters  relating to  "an appropriate  public  education".   This                                                               
doesn't seem to fall within  that type of activity, and therefore                                                               
he questioned whether  a surrogate parent would  be involved with                                                               
this  unless  the [recreational]  activity  is  done through  the                                                               
school.   Representative Gruenberg  said he foresees  a potential                                                               
conflict  between the  child's natural  parent and  the surrogate                                                               
parent and the  person, under a power of attorney,  with whom the                                                               
child may  be living.   He inquired as to  how to resolve  such a                                                               
conflict.                                                                                                                       
                                                                                                                                
MS. KNUTSON  noted that  the aforementioned  was of  concern when                                                               
the legislation  was drafted.   She explained that the  intent is                                                               
to create a reasonably complete list  of those who would have the                                                               
ability to  sign release/waiver  documents.  Although  she agreed                                                               
that there may  be situations in which there is  a natural parent                                                               
and  someone operating  under a  power of  attorney for  the same                                                               
child, it  wouldn't be  up to  the operator  to determine  who is                                                               
capable of signing [the release/waiver documents].                                                                              
                                                                                                                                
CHAIR  McGUIRE  suggested  that   the  language  in  question  be                                                               
removed, noting that the representative  from the OCS agrees that                                                               
it presents a conflict.                                                                                                         
                                                                                                                                
Number 0257                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 1, which would, on page 3, delete lines 5-6.                                                                          
                                                                                                                                
REPRESENTATIVE OGG surmised that  the legislation provides a list                                                               
[of who  is a parent]  and it  seems that these  individuals have                                                               
different jobs  concerning a child.   Therefore, if  [Amendment 1                                                               
is adopted]  and a  child wants to  engage in  school activities,                                                               
there is no one  to sign for that child in the  case in which the                                                               
child has been assigned a surrogate parent.                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG   commented  that  this  is   just  one                                                               
possible factual  situation.   He requested  that Amendment  1 be                                                               
tabled.  There being no objection, it was so ordered.                                                                           
                                                                                                                                
REPRESENTATIVE GRUENBERG  highlighted that  it needs to  be clear                                                               
that this [legislation] only applies to unemancipated minors.                                                                   
                                                                                                                                
Number 0158                                                                                                                     
                                                                                                                                
REPRESENTATIVE   GRUENBERG  moved   that   the  committee   adopt                                                               
Amendment 2, as follows:                                                                                                        
                                                                                                                                
     Page 2, line 22, after "parent's";                                                                                         
          Insert "unemancipated"                                                                                                
                                                                                                                                
     Page 2, line 26;                                                                                                           
          Delete "a"                                                                                                            
          Insert "an unemancipated"                                                                                             
                                                                                                                                
REPRESENTATIVE OGG  asked if  a parent  has the  right to  act on                                                               
behalf of an emancipated child.                                                                                                 
                                                                                                                                
REPRESENTATIVE GRUENBERG  replied no, and stated  that [Amendment                                                               
2] would make it clear.                                                                                                         
                                                                                                                                
Number 0008                                                                                                                     
                                                                                                                                
CHAIR McGUIRE,  upon determining  that there were  no objections,                                                               
announced that Amendment 2 was adopted.                                                                                         
                                                                                                                                
REPRESENTATIVE  GRUENBERG  remarked  that he  could  see  parents                                                               
warring over this.  He noted  that such a conflict wouldn't arise                                                               
before the child engages in football  and breaks his or her neck,                                                               
but would arise afterwards.                                                                                                     
                                                                                                                                
TAPE 04-45, SIDE A                                                                                                            
Number 0001                                                                                                                     
                                                                                                                                
REPRESENTATIVE GRUENBERG restated his  concern with regard to the                                                               
possibility of a  situation in which there is a  conflict when [a                                                               
child  has  two individuals  classified  as  a parent  under  the                                                               
definitions of  this legislation].   He remarked that  perhaps he                                                               
is making a mountain out of a molehill.                                                                                         
                                                                                                                                
REPRESENTATIVE  SAMUELS said  that  subparagraph (C)  on page  3,                                                               
lines 2-4, seems to  be a bit of a catchall,  which he didn't see                                                               
as necessarily  a bad thing.   He offered his  understanding that                                                               
under  subparagraph (C),  he,  as the  person  responsible for  a                                                               
group of children  going rafting, could sign the  waiver for [all                                                               
the children].                                                                                                                  
                                                                                                                                
MS.  KNUTSON informed  the committee  that  she practices  almost                                                               
exclusively in recreation  law.  What [the language  in the bill]                                                               
attempts to  get at is  anyone who  is legally responsible  for a                                                               
child.   Although Ms. Knutson  agreed that [subparagraph  (C)] is                                                               
sort of a catchall, she clarified  that it isn't meant to include                                                               
a situation  in which  a neighbor  signs a  waiver for  the child                                                               
next door.  The neighbor wouldn't  have the legal right to do the                                                               
aforementioned   because   he   or  she   wouldn't   have   legal                                                               
responsibility  for that  child.   In such  a case,  the operator                                                               
would  need  [the waiver/release  document  to  be signed]  by  a                                                               
person who has a legal responsibility for the child.                                                                            
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested,  then,  that [those  points]                                                               
should be  clearly stated  in the bill,  otherwise there  will be                                                               
some legal problems.                                                                                                            
                                                                                                                                
MS. KNUTSON  suggested that perhaps the  language in subparagraph                                                               
(C) should read:  "a person who  has the legal capacity to act in                                                               
the place of the child or adoptive parent".                                                                                     
                                                                                                                                
Number 0341                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE announced  that Conceptual  Amendment 3  would [on                                                               
page 3, line 2, insert the  following language] "a person who has                                                               
the legal capacity to act in the child's welfare".                                                                              
                                                                                                                                
REPRESENTATIVE  GRUENBERG remarked  that he  wasn't sure  whether                                                               
the term "capacity"  is appropriate because it  usually refers to                                                               
whether the individual is incapacitated or is an infant.                                                                        
                                                                                                                                
MS. TONDINI  asked whether it  would be sufficient to  insert the                                                               
following language:   "a  person who  is legally  responsible for                                                               
the  child's welfare".   She  suggested making  the language  "or                                                               
another person  who is legally  responsible for the child"  a new                                                               
subparagraph.                                                                                                                   
                                                                                                                                
REPRESENTATIVE  GRUENBERG suggested  having [Ms.  Knutson] return                                                               
with specific language.                                                                                                         
                                                                                                                                
MS. TONDINI  stated that  the amendment  could be  conceptual and                                                               
she could talk with the drafters.                                                                                               
                                                                                                                                
CHAIR McGUIRE clarified that the intent  is to make it clear that                                                               
not just  anyone can  sign a waiver  on behalf of  a child.   She                                                               
specified that the  intent is for the waiver to  be signed by the                                                               
child's  natural  or  adoptive   parent  or  the  grandparent  or                                                               
stepparent with whom the child lives.                                                                                           
                                                                                                                                
CHAIR  McGUIRE  clarified  that  she  had  moved  the  Conceptual                                                               
Amendment 3,  and related  her understanding  that Representative                                                               
Gruenberg had objected.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG withdrew his objection.                                                                                
                                                                                                                                
Number 0502                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE  announced  that   [Conceptual]  Amendment  3  was                                                               
adopted.                                                                                                                        
                                                                                                                                
REPRESENTATIVE  GRUENBERG returned  to  the issue  of whether  to                                                               
adopt Amendment 1.                                                                                                              
                                                                                                                                
REPRESENTATIVE OGG objected.                                                                                                    
                                                                                                                                
CHAIR  McGUIRE explained  that Representative  Ogg was  concerned                                                               
that without  subparagraph (D) on page  3, the child with  only a                                                               
surrogate  parent  may not  be  able  to participate  in  certain                                                               
activities.                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG  inquired  as to  whether  the  concern                                                               
could  be  resolved by  not  eliminating  [subparagraph (D)]  and                                                               
adding language specifying, "if the  activity is within the scope                                                               
of the surrogate parenting".                                                                                                    
                                                                                                                                
Number 0633                                                                                                                     
                                                                                                                                
MYRA  CASEY,  Field  Administrator,  Central  Office,  Office  of                                                               
Children's  Services  (OCS),  Department  of  Health  and  Social                                                               
Services  (DHSS), offered  her understanding  that the  surrogate                                                               
parent  just represents  a child's  educational  interests.   She                                                               
informed the  committee that when  a child  is in the  custody of                                                               
[OCS], OCS  "sign" and  allow the school  to appoint  a surrogate                                                               
parent.   Therefore,  it  seems that  for  this legislation,  the                                                               
child would  either have a parent,  a legal guardian, or  a child                                                               
in  OCS's  custody would  allow  OCS  to sign  [a  release/waiver                                                               
document].                                                                                                                      
                                                                                                                                
REPRESENTATIVE OGG withdrew his objection.                                                                                      
                                                                                                                                
Number 0692                                                                                                                     
                                                                                                                                
CHAIR   McGUIRE,  upon   determining   there   were  no   further                                                               
objections, announced that Amendment 1 was adopted.                                                                             
                                                                                                                                
Number 0700                                                                                                                     
                                                                                                                                
CHAIR McGUIRE moved that the  committee adopt [a verbally amended                                                               
Conceptual] Amendment  4, which  then read  [original punctuation                                                               
provided]:                                                                                                                      
                                                                                                                                
     Page 2, Lines 17-18, following "allege":                                                                                   
                                                                                                                                
    Delete   "willful,   wanton,   reckless,   or   grossly                                                                     
     negligent acts or omissions"                                                                                               
                                                                                                                                
     Insert "reckless or intentional misconduct"                                                                                
                                                                                                                                
                                                                                                                                
     Page 2, Lines 27-28, following "for":                                                                                      
                                                                                                                                
    Delete   "willful,   wanton,   reckless,   or   grossly                                                                     
     negligent acts or omissions"                                                                                               
                                                                                                                                
     Insert "reckless or intentional misconduct"                                                                                
                                                                                                                                
REPRESENTATIVE OGG expressed the need  for the language to fit in                                                               
grammatically.                                                                                                                  
                                                                                                                                
CHAIR McGUIRE agreed and specified  that Amendment 4, as amended,                                                               
would be a conceptual amendment.                                                                                                
                                                                                                                                
REPRESENTATIVE  GRUENBERG  asked whether  a  parent  can waive  a                                                               
claim for gross negligence, adding  that such would be troubling.                                                               
He  relayed that  he  would be  more  comfortable with  including                                                               
gross negligence.                                                                                                               
                                                                                                                                
CHAIR McGUIRE  reminded members that  she had  [verbally] amended                                                               
Conceptual Amendment  4 so as  to not include  "gross negligence"                                                               
because of  the comments she has  heard today.  She  reminded the                                                               
committee that  after 1997, when  the state changed  the punitive                                                               
damages statute,  all the jury  instructions pertaining  to gross                                                               
negligence  became  inapplicable.     Furthermore,  it  could  be                                                               
confusing  to create  multiple jury  instructions.   The type  of                                                               
conduct  being  targeted is  a  known  risk that  someone  should                                                               
observe   and  that   is   being   willfully  and   intentionally                                                               
disregarded.                                                                                                                    
                                                                                                                                
REPRESENTATIVE  GRUENBERG surmised,  then, that  gross negligence                                                               
is now part of recklessness.                                                                                                    
                                                                                                                                
CHAIR  McGUIRE  responded, "I  think  it  is."   She  noted  that                                                               
Black's  Law  Dictionary  defines gross  negligence  as  follows:                                                             
"the intentional failure  to perform a manifest  duty in reckless                                                               
disregard of  the consequences."   Under Alaska law,  reckless is                                                               
the  standard by  which someone  consciously  disregards a  known                                                               
risk.   Therefore,  she opined,  [gross negligence  and reckless]                                                               
are basically the same.                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG  surmised, then, that  under [Conceptual                                                               
Amendment 4] the term "reckless  misconduct" includes the concept                                                               
of gross negligence.                                                                                                            
                                                                                                                                
CHAIR McGUIRE replied,  "To the extent that  someone would allege                                                               
that, yes."                                                                                                                     
                                                                                                                                
REPRESENTATIVE  GRUENBERG said  he was  satisfied with  that, and                                                               
withdrew his objection.                                                                                                         
                                                                                                                                
Number 0974                                                                                                                     
                                                                                                                                
CHAIR  McGUIRE,  upon  determining  that there  were  no  further                                                               
objections, announced  that Conceptual  Amendment 4,  as amended,                                                               
was adopted.                                                                                                                    
                                                                                                                                
CHAIR McGUIRE requested  a motion to report  the legislation from                                                               
committee.    She announced  that  the  committee would  have  an                                                               
opportunity to  review the committee  substitute, and  would work                                                               
on any serious concerns.                                                                                                        
                                                                                                                                
REPRESENTATIVE OGG remarked  that as a whole,  the legislation is                                                               
a  "good idea  and a  good direction  to move  in."   He posed  a                                                               
situation in  which a  child doesn't have  an action  against the                                                               
provider of the sports, although  the child is seriously injured.                                                               
When  the  child   reaches  the  age  of   majority,  [would  the                                                               
aforementioned]  impact the  child's  ability to  have an  action                                                               
against his or her parent for negligence, et cetera, he asked.                                                                  
                                                                                                                                
MS.  KNUTSON noted  that  she  has participated  in  some of  the                                                               
debate  in Colorado  on  this issue.   She  relayed  that in  her                                                               
research  she has  only  seen a  handful of  cases  in which  the                                                               
children have filed a case of  negligence against the parent.  In                                                               
those  cases, there  was criminal  conduct against  the children,                                                               
and  so   when  the  children  were   appointed  guardians,  [the                                                               
guardians] looked  for insurance policies that  might support the                                                               
children.    If a  child  was  hurt  while doing  a  recreational                                                               
activity and then  upon achieving the age of  majority decided to                                                               
[bring a  case] against  the parent, she  said that  the question                                                               
regarding whether  it would  be supportable  would be  a question                                                               
for  the court  system.   In regard  to whether  this legislation                                                               
would prevent a child from  [bringing an action] against a parent                                                               
for  signing the  release, she  said it  wouldn't.   However, she                                                               
said she could not predict whether  a court could support such an                                                               
action.                                                                                                                         
                                                                                                                                
REPRESENTATIVE GRUENBERG informed the  committee that in order to                                                               
become emancipated under Title 9, the  child must show that he or                                                               
she can support  himself or herself.  He said  he could foresee a                                                               
circumstance  in which  an [unemancipated]  17-year-old wants  to                                                               
pursue  a  sport,  but  the  parent [doesn't  want  to  sign  the                                                               
waiver/release document].   He said he wasn't aware  of any legal                                                               
mechanism  that allows  such an  issue to  be brought  before the                                                               
court.   He  asked  Ms.  Knutson whether  a  provision should  be                                                               
included in  order to allow  [someone to] execute the  release on                                                               
behalf of the child.                                                                                                            
                                                                                                                                
MS.  KNUTSON  answered  that  the law  specifies  that  until  an                                                               
individual achieves  the age of majority,  the individual doesn't                                                               
have the capacity  to contract.  Furthermore, case  law in Alaska                                                               
specifies that these waiver/release  documents are contractual in                                                               
nature.                                                                                                                         
                                                                                                                                
CHAIR  McGUIRE,  upon determining  that  no  one else  wished  to                                                               
testify, closed public testimony on HB 273.                                                                                     
                                                                                                                                
Number 1320                                                                                                                     
                                                                                                                                
REPRESENTATIVE OGG moved to report  the proposed CS for SSHB 273,                                                               
Version  23-LS0966\I,  Bullock,  3/19/04,   as  amended,  out  of                                                               
committee  with individual  recommendations and  the accompanying                                                               
zero fiscal note.  There  being no objection, CSSSHB 273(JUD) was                                                               
reported from the House Judiciary Standing Committee.                                                                           

Document Name Date/Time Subjects