Legislature(2003 - 2004)

05/08/2003 08:05 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
          SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS                                                                      
                                                                                                                                
CHAIR  SEEKINS  announced  SB  175,  version \S,  to  be  up  for                                                               
consideration.                                                                                                                  
                                                                                                                                
SENATOR FRENCH noted  that bungee jumpers were added  to the list                                                               
in  the S  version. He  asked  what spectrum  of activities  they                                                               
would cover and if dude ranches were added.                                                                                     
                                                                                                                                
SENATOR ELLIS asked if there were dude ranches in Alaska.                                                                       
                                                                                                                                
CHAIR  SEEKINS  said  he  heard there  were  several  dude  ranch                                                               
organizations around Denali Park.                                                                                               
                                                                                                                                
SENATOR FRENCH  asked if  the liability of  his son's  Solid Rock                                                               
Camp would be affected.                                                                                                         
                                                                                                                                
CHAIR SEEKINS  said he  didn't know  if that  would qualify  as a                                                               
dude ranch,  but most of  those activities were covered  under HB                                                               
176,  livestock activities,  on  the floor  today.  He said  they                                                               
would put SB 175 aside temporarily.                                                                                             
          SB 175-LIABILITY:RECREATIONAL ACTIVITY/BOATS                                                                      
                                                                                                                                
CHAIR   SEEKINS   announced   CSSB   175(JUD)  to   be   up   for                                                               
consideration. He noted that bungee  jumping and parasailing were                                                               
now in the bill.                                                                                                                
                                                                                                                                
MR. MIKE  WINDRED, Alaska Travel Industry  Association and Alaska                                                               
Travel Adventures, supported  SB 175. He said he  was speaking on                                                               
behalf of the industry and one  of the larger companies. About 90                                                               
percent  of the  companies in  the  industry have  five or  fewer                                                               
employees,  which means  they have  much less  ability to  absorb                                                               
increases  in  insurance  costs.  As nuisance  suits  go  up  and                                                               
insurance  rates climb  (theirs went  from 10  percent of  pretax                                                               
profits to 13  percent of pretax profits), it means  that most of                                                               
their employees won't get a  substantial pay raise. Most of their                                                               
company costs  are fairly  fixed and  this bill  would definitely                                                               
help  them  give their  employees  some  of  the money  they  had                                                               
planned on  getting -  for profit sharing  and retirement  and to                                                               
pay raises.                                                                                                                     
                                                                                                                                
SENATOR OGAN  asked if they  provide those kinds  of recreational                                                               
services.                                                                                                                       
                                                                                                                                
MR.  WINDRED replied  they do  everything -  from lake  canoeing,                                                               
hiking tours, the salmon bake, etc.                                                                                             
                                                                                                                                
SENATOR  OGAN asked  if he  thinks he  has any  responsibility to                                                               
inform people  who are using  their services that they  are using                                                               
them at their own risk if this law is passed.                                                                                   
                                                                                                                                
MR. WINDRED replied yes, they  do have a responsibility to inform                                                               
participants of the inherent risks  associated with the activity.                                                               
They have people  sign a sheet of paper saying  they are aware of                                                               
the risks and keep them for quite a while.                                                                                      
                                                                                                                                
SENATOR OGAN said  those sheets of paper are more  like a waiver,                                                               
which  is  more like  a  psychological  contract than  a  binding                                                               
contract, because at the end of the day, a person can still sue.                                                                
                                                                                                                                
MR. WINDRED replied  their sheets are not waivers;  they are risk                                                               
assumption  sheets. They  explain  both verbally  and in  writing                                                               
what the inherent  risks are for that  activity. They acknowledge                                                               
what those risks  are and have the opportunity not  to go at that                                                               
point. They are not waiving any rights to be able to sue.                                                                       
                                                                                                                                
CHAIR SEEKINS said he thought  this bill limited any liability of                                                               
the  providers of  the sports  events to  negligence that  is not                                                               
associated with the inherent risk of the activity.                                                                              
                                                                                                                                
MR.  FORD said  there  is a  provision on  page  3, (c)(1),  that                                                               
specifies negligence  of a  provider that was  not the  result of                                                               
the inherent risk.                                                                                                              
                                                                                                                                
SENATOR  OGAN  asked  if  it  was an  inherent  risk  if  someone                                                               
incorrectly  instructed you  to put  a  piton in  wrong for  rock                                                               
climbing.                                                                                                                       
                                                                                                                                
MR. FORD  responded that is one  of the key issues.  Opinions can                                                               
differ on  what would be an  inherent risk. The court  or another                                                               
reasonable person could agree with him or not.                                                                                  
                                                                                                                                
     This kind of  legislation is hard to  craft because the                                                                    
     rules we have occur in  real fact situations where real                                                                    
     people  exist.... but,  to  come up  with  a rule  that                                                                    
     applies to  all situations,  you run  into what  I call                                                                    
     the generic language...                                                                                                    
                                                                                                                                
SENATOR THERRIAULT asked  if language on page 2,  line 29, saying                                                               
that  a person  assumes inherent  risk in  a sport  or recreation                                                               
activity whether those risks are known or unknown is in there.                                                                  
                                                                                                                                
MR. FORD  replied that he  thought they  were trying to  say they                                                               
are  not going  to  depend on  the knowledge  of  the person  who                                                               
participates.  This was  not his  language  and he  was a  little                                                               
confused about its  meaning. He felt that an  inherent risk would                                                               
have to be known by the participant.                                                                                            
                                                                                                                                
SENATOR THERRIAULT asked where the language came from.                                                                          
                                                                                                                                
MR. FORD said it  came from a woman in Anchorage  and she came up                                                               
with a rewrite of the original bill.                                                                                            
                                                                                                                                
MS.  LINDA ANDERSON,  Alaska  Travel  Industry Association,  said                                                               
this language came from an attorney  in Anchorage who has tried a                                                               
number of these cases.                                                                                                          
                                                                                                                                
CHAIR SEEKINS said there might  some inherent risks someone might                                                               
not know  about and  they were  trying to get  to what  is common                                                               
sense, although that differs from one person to another.                                                                        
                                                                                                                                
SENATOR  THERRIAULT asked  Mr. Ford  what would  be lost  if that                                                               
sentence fragment were deleted.                                                                                                 
                                                                                                                                
MR.  FORD replied  he didn't  think it  would greatly  affect the                                                               
bill. It raises  the issue of whether those risks  are unknown or                                                               
known,  but the  question is  to whom.  He assumed  it meant  the                                                               
person who  participates, but he  felt if  it was unknown  to the                                                               
person, how could it be inherent.                                                                                               
                                                                                                                                
SENATOR  THERRIAULT  moved on  page  2,  line  29, to  delete  ",                                                               
whether risks are known or  unknown,". There was no objection and                                                               
it was so ordered.                                                                                                              
                                                                                                                                
SENATOR OGAN  motioned to  pass CSSB  175(JUD), version  \S, from                                                               
committee with attached zero fiscal  note and asked for unanimous                                                               
consent. There was no objection and it was so ordered.                                                                          

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