Legislature(2003 - 2004)
05/03/2004 08:17 AM JUD
* first hearing in first committee of referral
= bill was previously heard/scheduled
= 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.