Legislature(2003 - 2004)

05/03/2004 08:17 AM JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
   CSSSHB 273(JUD)am-PARENTS' WAIVER OF CHILD'S SPORTS CLAIM                                                                
                                                                                                                              
MS.  VANESSA  TONDINI,  staff to  Representative  Lesil  McGuire,                                                               
sponsor, explained  that this legislation legally  recognizes the                                                               
right of a parent to waive  a child's claim of negligence against                                                               
a provider  of a  sports or  recreation activity.  She explained,                                                               
"The reason for  this bill - [it]  came about as the  result of a                                                               
recent Colorado Supreme Court case  that they actually refused to                                                               
uphold the right  of a mother of a 17-year  old skier's signature                                                               
on a  release document used  in a juvenile racing  camp program."                                                               
Ever  since   that  decision,  the  outdoor   industry  has  been                                                               
concerned about  the ramifications  that could  result if  such a                                                               
holding were to occur in  Alaska. Representative McGuire believes                                                               
this erroneous  rationale runs contrary  to some  mid-western and                                                               
eastern states, which do find  and hold that parents specifically                                                               
have binding rights to sign  release documents on behalf of their                                                               
minor  children.  To find  differently  would  be detrimental  to                                                               
scouting, athletic and extra-curricular  school programs. A well-                                                               
settled legal  history of recognized  parental rights  over minor                                                               
children exists in the medical  treatment and education arena. To                                                               
not extend the  same logic to recreational  activities is unfair.                                                               
She  also  noted that  the  practical  consequences of  saying  a                                                               
parent's signature  is invalid on  such waivers makes  the waiver                                                               
itself  invalid.   That  could  affect  insurance   coverage,  as                                                               
insurance   providers  might   hesitate  to   cover  recreational                                                               
activity providers.                                                                                                             
                                                                                                                                
MS. TONDINI concluded:                                                                                                          
                                                                                                                                
     So we don't  want these programs to go  out of business                                                                    
     or to be operating  illegally. As an outdoor recreation                                                                    
     supported state,  Alaska just  didn't want to  stand by                                                                    
     and watch these types of  results. So it's important to                                                                    
     know that  this bill  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  only provides  a relief  through causes                                                                    
     of action founded in negligence.  Claims of reckless or                                                                    
     intentional misconduct are never  released in a release                                                                    
     waiver and  this bill also reflects  that. It's crucial                                                                    
     to remember,  with respect to  pre-recreation releases,                                                                    
     these  documents  -  they regard  activities  that  are                                                                    
     totally voluntary in nature and  the personal choice of                                                                    
     the  participant.  If  parents decide  that  a  certain                                                                    
     activity isn't  right for their  child -  too dangerous                                                                    
     or something,  and they don't want  them to participate                                                                    
     in it, they  definitely have that right to  do so. This                                                                    
     bill just  reflects the freedom  of choice  and freedom                                                                    
     of   contract  regarding   these  activities.   So  the                                                                    
     fundamental right  to make choices regarding  a child's                                                                    
     activities is being protected here.                                                                                        
                                                                                                                                
SENATOR FRENCH  asked the current  law in Alaska and  whether the                                                               
Alaska Court  System has made  any recent pronouncements  on this                                                               
subject.                                                                                                                        
                                                                                                                                
MS. TONDINI said the court  has not made any pronouncements. This                                                               
bill is  "sort of a look  into the future." She  pointed out that                                                               
the  Alaska  Court  System scrutinizes  these  types  of  release                                                               
documents  and  is  very  particular   about  making  sure  those                                                               
documents are clear.                                                                                                            
                                                                                                                                
SENATOR FRENCH asked  Ms. Tondini to cite some  Alaska cases that                                                               
discuss this concept.                                                                                                           
                                                                                                                                
MS. TONDINI  offered to  get back  to Senator  French at  a later                                                               
date. She noted she has a lot of case law from other states.                                                                    
                                                                                                                                
SENATOR THERRIAULT  asked if the  release is only for  the sports                                                               
activity  itself   and  not  for  ancillary   services,  such  as                                                               
transportation.                                                                                                                 
                                                                                                                                
MS.  TONDINI believed  that would  be  left to  the company  that                                                               
designed  the waiver.  This legislation  would cover  a potential                                                               
claim  of negligence  against the  provider of  those activities.                                                               
She was unsure  at what point the provision of  the service would                                                               
begin  and end  but surmised  that would  depend on  the way  the                                                               
services  were  structured.  She   guessed  the  release  of  any                                                               
potential claim  of negligence would begin  whenever the activity                                                               
provided  began, and  that  would  have to  be  specified in  the                                                               
release waiver.                                                                                                                 
                                                                                                                                
SENATOR  THERRIAULT  asked if  the  waiver  would apply  if,  for                                                               
example, a group  of children was not  properly supervised before                                                               
a game started.                                                                                                                 
                                                                                                                                
CHAIR SEEKINS said  he reads it to say the  waiver is against any                                                               
prospective claim of negligence  against the provider so anything                                                               
in the  package offered  by the provider  would be  covered under                                                               
that waiver.                                                                                                                    
                                                                                                                                
SENATOR  FRENCH  thought  the larger  consideration  is  that  in                                                               
Alaska, recreational teams  travel to sporting events.  He said a                                                               
claim could  arise over something  that happened in a  hotel room                                                               
in which  the coach was  somehow involved. He  questioned whether                                                               
the coach would be immune from  all claims of negligence while in                                                               
contact  with the  minors or  only  from claims  that arise  from                                                               
conduct during the sporting event itself.                                                                                       
                                                                                                                                
SENATOR  THERRIAULT   said  most   parents  know   that  sporting                                                               
activities  are inherently  dangerous  but he  doesn't know  that                                                               
parents  should  have   to  worry  about  an   inherent  risk  in                                                               
transporting  students or  their overnight  stays. He  questioned                                                               
whether those things could be separated out.                                                                                    
                                                                                                                                
MS.  TONDINI said  the bill  only covers  providers of  sports or                                                               
recreational activities as defined in AS 09.65.290. She read:                                                                   
                                                                                                                                
     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.                                                                                                                 
                                                                                                                                
She furthered that sports or  recreational activities are defined                                                               
at length. She said her reading is  that it would only apply to a                                                               
provider of those specific activities  so she felt there would be                                                               
a good  argument that a hotel  owner would not be  covered unless                                                               
the release waiver included the entire trip.                                                                                    
                                                                                                                                
SENATOR  THERRIAULT asked  who the  provider would  be, i.e.  the                                                               
Fairbanks-North Star Little League association.                                                                                 
                                                                                                                                
MS. TONDINI said  yes or the federal, state or  local agency or a                                                               
private agency or individual.                                                                                                   
                                                                                                                                
CHAIR  SEEKINS  thought, if  the  minors  were entrusted  to  the                                                               
coach's  care, a  coach might  be liable  for negligence  but the                                                               
association would not be.                                                                                                       
                                                                                                                                
SENATOR  THERRIAULT said  the Little  League association  usually                                                               
covers everything  and questioned whether this  legislation would                                                               
cover everything or just the sporting event.                                                                                    
                                                                                                                                
CHAIR SEEKINS thought it would cover everything.                                                                                
                                                                                                                                
SENATOR FRENCH  expressed interest in narrowing  the bill's focus                                                               
to just the sporting event itself.                                                                                              
                                                                                                                                
CHAIR SEEKINS said the first  stage of an insurance policy covers                                                               
all claims  that result  from an  accident of  any kind,  such as                                                               
medical  costs.  Negligence would  be  the  next portion  of  the                                                               
claim.  He   pointed  out  that  any   damages  from  intentional                                                               
misconduct or reckless  behavior are no longer  covered under his                                                               
business's policy. He said he  believes what is happening is that                                                               
many  sports organizations  are having  a difficult  time getting                                                               
coverage because a higher number of  people not only want to make                                                               
sure their  children are  covered for medical  costs but  to also                                                               
get additional damages for negligence.  That is why these waivers                                                               
are more predominant.                                                                                                           
                                                                                                                                
SENATOR FRENCH  said the rub  is that insurance companies  do not                                                               
want to cover negligence. He  surmised that the legislation needs                                                               
to  be   as  narrowly  focused  as   possible  because  insurance                                                               
companies will write  a policy based on it the  day it passes and                                                               
will no longer cover negligence and transport.                                                                                  
                                                                                                                                
CHAIR SEEKINS felt that sports  providers feel they have too much                                                               
liability and  can't get coverage for  it. He said the  choice is                                                               
that  parents  either  waive  the claim  for  negligence  or  the                                                               
activity  must cease.  He said  the question  is whether  parents                                                               
should  have the  right  to waive  liability  coverage for  their                                                               
children.                                                                                                                       
                                                                                                                                
SENATOR  THERRIAULT maintained  that the  fact that  the bill  is                                                               
moving through the system is due  to the fact that everyone knows                                                               
that sporting  activities can  be inherently  dangerous. However,                                                               
there  is the  issue  about the  associated  activities, such  as                                                               
transportation and  lodging. He believed that  most parents would                                                               
sign a waiver  knowing their children might get  bruised but most                                                               
would not know that waiver  includes all of the other activities.                                                               
He  said  if  the  transportation  and  lodging  is  a  potential                                                               
problem, he  wants to hear  that, otherwise it is  getting pulled                                                               
along with  the waiver of  liability for the activity  that makes                                                               
sense, yet there is a logical difference between the two.                                                                       
                                                                                                                                
CHAIR SEEKINS  said the basic  overriding question is  whether or                                                               
not a parent can sign an effective waiver.                                                                                      
                                                                                                                                
MS. TONDINI said  that is correct and the sponsor  believes it is                                                               
very important to recognize parental  rights in this area. To not                                                               
do  so  would be  inconsistent  with  other recognized  areas  of                                                               
parental rights.  She then  told Senator  French that  the Alaska                                                               
Supreme Court  has heard two  cases on the effectiveness  of pre-                                                               
recreational  releases,  both of  which  were  denied. She  cited                                                               
those cases  and said  in both  of those  cases, the  court found                                                               
neither  release contained  the  words  "negligence" or  "death,"                                                               
which the court is careful to scrutinize for.                                                                                   
                                                                                                                                
CHAIR SEEKINS  noted that no  one wished  to testify on  the bill                                                               
and asked the will of the committee.                                                                                            
                                                                                                                                
SENATOR  THERRIAULT  repeated  his  desire to  specify  that  the                                                               
waiver is for a sports activity only.                                                                                           
                                                                                                                                
Members  discussed possible  language  changes  to address  their                                                               
concern.                                                                                                                        
                                                                                                                                
SENATOR  THERRIAULT offered  to work  with the  legal drafter  to                                                               
confine  the liability  waiver  to the  activity  itself and  not                                                               
include the ancillary services.                                                                                                 
                                                                                                                                
CHAIR SEEKINS  agreed to bring  the bill  up at the  next meeting                                                               
and announced an at-ease.                                                                                                       

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