Legislature(2003 - 2004)
03/22/2004 01:10 PM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.