Legislature(2003 - 2004)

04/29/2004 04:12 PM Senate STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
           HB 273-PARENTS' WAIVER OF CHILD'S SPORTS CLAIM                                                                   
CHAIR GARY STEVENS announced HJR 41 to be up for consideration.                                                                 
VANESSA  TONDINI, staff  to Representative  Lesil McGuire,  explained                                                           
that the  bill gives legal  recognition to the  right of a  parent to                                                           
waive,  on behalf  of  his  or her  child,  any  claim of  negligence                                                           
against a provider of sports  and recreational activities. This issue                                                           
arose as  a result  of a  Colorado Supreme  Court decision  that held                                                           
TAPE 04-29, SIDE B                                                                                                            
5:00 p.m.                                                                                                                     
MS. TONDINI  continued to say  that parents  have the legal  right to                                                           
sign  waivers  for their  child  in  areas  of education  or  medical                                                           
treatment  so   it's  reasonable   to  extend   the  same   logic  to                                                           
recreational  activities.   As  a   practical  matter,   if  parental                                                           
authority isn't found here then release  waivers could be found to be                                                           
invalid in any  activity so insurance coverage  would be jeopardized.                                                           
The result would be that few programs would go forward.                                                                         
As an  outdoor oriented  and supported state,  Alaska can't  stand by                                                           
and watch this  happen. The bill makes it clear that  parents do have                                                           
the right  to sign  these types of  waivers, but  would not  defeat a                                                           
parent or guardian's right to sue  an operator that was not providing                                                           
a safe service  or activity. Typically release waivers  are only able                                                           
to release  causes of  negligence; cases  of reckless  or intentional                                                           
misconduct are never released and are exempted from the bill.                                                                   
The definition  of "parent" begins on  page 2, line 30  and continues                                                           
through  page 3,  line  9. This  definition  has  been given  careful                                                           
consideration and  evaluation as the  bill moved through  the various                                                           
committees  and should  cover everyone  who  has the  legal right  or                                                           
ability to release claims for a child while excluding all others.                                                               
CHAIR GARY STEVENS  questioned what the consequences would  be if the                                                           
bill did not pass.                                                                                                              
MS.  TONDINI said  that if  a parent's  right to  sign these  waivers                                                           
isn't recognized then the courts  and the recreational industry would                                                           
be in a  state of uncertainty as to  who has the legal  right to sign                                                           
these release waivers which would make insurance coverage uncertain.                                                            
SENATOR GRETCHEN GUESS remarked  that parents are frequently required                                                           
to sign a waiver and show proof  of insurance or they are required to                                                           
purchase insurance before his or her  child is able to participate in                                                           
a sports  or recreational  activity. She asked  if this  would impact                                                           
the ability to make that requirement.                                                                                           
MS. TONDINI  said that,  to her knowledge,  the bill  wouldn't impact                                                           
any requirement  that a  company might  have to  demand some  sort of                                                           
insurance proof. In fact, she opined, it might be strengthened.                                                                 
TRACEY L. KNUTSON,  Attorney at Law, Sisson &  Knutson, PC, testified                                                           
via teleconference to  say that she assisted in  authoring this bill.                                                           
She also  worked on similar  legislation in  Colorado as a  result of                                                           
the Colorado case.                                                                                                              
She explained  that this is  intended to  be a preemptive  message to                                                           
the courts  that parents  do have  the right to  make these  types of                                                           
decisions  for  their  children.  Alaska   doesn't  want  to  face  a                                                           
situation in which  the state courts, in response  to litigation, say                                                           
these releases are invalid.                                                                                                     
Because the courts  in her area have been particular  about when they                                                           
will  and  will  not  recognize  releases,  she  opined  that  it  is                                                           
important to think about sending a  message that says that parents in                                                           
this recreation, outdoor,  and sports oriented state want  to be able                                                           
to have the opportunity to send  their children to these programs and                                                           
not have those programs shut down.                                                                                              
Ms.  Knutson  advised  that  her  law  practice  focuses  around  the                                                           
recreational  area. She  said,  "What  we see  is  kind  of a  domino                                                           
effect. If  you don't have decent  releases, whether you're  an adult                                                           
or a  child, but particularly in  this instance, we're  talking about                                                           
waivers in favor of children. If  you don't have a release, you won't                                                           
be  able  to  buy  comprehensive   general  liability  or  CGL  style                                                           
insurance.  If  you  don't  have  insurance  in  place  [indis.]  the                                                           
property  administrators won't  allow  the programs  to operate  when                                                           
there's no insurance.  So you begin to  see the collapse of  a lot of                                                           
these programs if you don't have decent releases."                                                                              
There were no further questions.                                                                                                
CHAIR GARY STEVENS asked for the pleasure of the committee.                                                                     
SENATOR  BERT  STEDMAN  motioned   to  report  CSSSHB  273(JUD)  from                                                           
committee  with individual  recommendations and  the attached  fiscal                                                           
zero notes. There being no objection, it was so ordered.                                                                        

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