BILL ANALYSIS
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Elaine K. Alquist, Chair
BILL NO: AB 1652
A
AUTHOR: Jones
B
AMENDED: May 17, 2010
HEARING DATE: June 30, 2010
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CONSULTANT:
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Orr/
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SUBJECT
Public safety: ski resorts
SUMMARY
Requires ski resorts to prepare an annual safety plan and
create a monthly summary report stating the number of
deaths and injuries that occur at the resort. Requires a
person under 18 years of age and a person employed by a ski
resort to wear a properly fitted and fastened snow sport
helmet when operating snow skis or a snowboard.
CHANGES TO EXISTING LAW
Existing federal law:
Provides that the Secretary of Agriculture is authorized to
issue permits for the use and occupancy of lands within the
National Forest System for Nordic and alpine skiing
operations and purposes.
Existing federal regulations:
State that the holder of a winter recreation resort permit,
prepare and annually revise an operating plan that covers
all operations authorized by the permit.
Continued---
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Existing state law:
Prohibits a person under 18 years of age from operating a
bicycle, a nonmotorized scooter, in-line or roller skates,
or a skateboard, nor ride upon a bicycle, a nonmotorized
scooter, or a skateboard as a passenger, upon a street,
bikeway, or any other public bicycle path or trail unless
that person is wearing a properly fitted and fastened
bicycle helmet that meets ASTM International, the Consumer
Product Safety Commission (CPSC) standards, or standards
subsequently established by those entities. Violations are
punishable by a fine of not more than $25.
Provides that every person who, among other things,
willfully commits a trespass by knowingly skiing in an
area, or on a ski trail, which is closed to the public and
has signs posted indicating the closure, is guilty of a
misdemeanor.
Prohibits operators of skateboard parks from permitting any
person to ride a skateboard therein, unless the person is
wearing specified protective equipment, including a helmet.
Establishes that any recreational skateboard facility owned
or operated by a local public agency, that is not
supervised on a regular basis, can be deemed in compliance
with the protective equipment requirement by: 1) adoption
of a local ordinance requiring any person riding a
skateboard at the facility to wear protective equipment;
and, 2) posting signs at the facility alerting riders of
the requirement to wear protective equipment, and stating
that any person failing to do so will be subject to
citation.
Specifies the requirements, among other things, for
obtaining a license for and the operation of passenger
aerial tramway at ski resorts and requires the Department
of Occupational Health and Safety (DOSH) to conduct
inspections of aerial tramways biannually.
Requires the reporting of any fatality or injury of a
patron requiring more than standard first aid by an
operator of amusement rides to the DOSH.
This bill:
Requires a ski resort that operates in California to
prepare an annual safety plan that, in addition to meeting
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federal regulations, includes a description of signage
marking specified ski area boundaries and hazards, a key to
all signage on all trail maps, made available upon request
at ticket sales locations and other conspicuous
point-of-sale locations, the types of hazards that will be
marked by signage if subject to protection by fencing or
padding, and other specified information.
Requires a ski resort that operates in California to post
the annual safety plan at a publicly viewable location in
the ski resort, make it available to any person who
requests it at the resort, and make it available on the ski
resort's website.
Requires a ski resort area to create a summary report for
each month of operation stating the number of deaths and
injuries at the resort of which employees of the ski resort
are aware; report injuries, in specified categories, and
include the total number of skier days for that month;
provide the report to any person who requests it in person
or in writing, within three business days of a request, and
make it available no later than the 15th day of the
following month.
Authorizes the requesting individual to initiate a civil
cause of action against a resort if it fails to comply with
specified requirements and requires the resort to pay the
cost of the individual's attorney's fees and court costs if
the individual prevails in a civil action against the
resort.
Requires a person under 18 years of age and a person
employed by a ski resort to wear a properly fitted and
fastened snow sport helmet that meets the specified safety
standards when operating snow skis or a snowboard.
Requires the resort to inform all patrons of the helmet
requirement at the time of ticket or pass purchase, and
allows revocation of a ticket or pass of a patron who
violates the helmet requirement if observed during usual
and customary enforcement of resort rules.
States that nothing in this bill changes the existing
assumption of risk doctrine as it applies to ski resorts.
FISCAL IMPACT
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This bill is keyed non-fiscal.
BACKGROUND AND DISCUSSION
This bill requires ski resorts to prepare annual safety
plans in which the resorts identify and define relevant
safety issues for their resort and specify the way in which
the resort intends to address those issues. It also
requires resorts to compile monthly summaries of injuries
and deaths and provide them to the public, and requires
resort employees and children under the age of 18 to wear
helmets. According to the author, there are currently no
requirements concerning posting of signs related to ski
slope conditions, boundary warnings, or known hazards.
Consumers are unable to obtain information about overall
death and injury statistics or the relative safety
performance of individual ski resorts because data is only
aggregated nationally by the National Ski Area Association.
The author sites a 2008 study conducted by University of
Washington Professor Peter Cummings, which concluded that
the use of helmets could reduce the risk of serious injury
in up to 60 percent of all accidents. The report also
found that skiers and snowboarders who crashed or fell had
a 15 percent reduction in the risk of any head injury if
they were wearing a helmet.
California ski industry
California hosts an extensive recreational nordic and
alpine skiing and snowboarding industry, with approximately
30 resorts drawing skiers and snowboarders from all over
the world every year. Nordic skiing is commonly referred to
as cross-country skiing, but encompasses all types of
skiing where the heel of the boot cannot be affixed to the
ski. Conversely, alpine skiing is commonly referred to as
downhill skiing, but encompasses skiing with fixed-heel
bindings.
In November 2008, the Assembly Judiciary Committee held an
informational hearing on "Ski and Snowboard Health, Safety
and Liability Standards." The hearing concluded that the
ski industry has no uniform safety policies, procedures, or
signage, and the safety practices that are in place tend to
vary from location to location. Unlike most states with
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major ski resorts, California has no ski safety statute, no
proactive oversight and no established ski and snowboard
safety standards.
Most, but not all, of California's ski resorts are located
on federal land, which subjects them to some oversight by
the U.S. Forest Service. Ski resorts located on federal
property are required to file annual operating or safety
plans with the U.S. Forest Service. Although the U.S.
Forest Service has contractual authority to enforce safety
improvements on land leased to ski resorts, with no
established national safety standards, the Forest Service
takes a "hands-off" position on safety regulation.
Individuals testifying at the informational hearing
reported great difficulty in obtaining copies of the plans
from the U.S. Forest Service when they filed the required
Freedom of Information Act (FOIA) requests.
The California ski industry enjoys legal liability
protection through a common law doctrine of "assumed risk"
as well as contractual negligence waivers included on ski
pass purchase agreements. As a result of these
protections, ski resorts have limited exposure to legal
liability. There is no publicly accessible, statewide
repository of information on ski resort-related deaths and
injuries.
Risk of injury from skiing
According to the National Ski Areas Association, serious
injuries (paraplegics, serious head and other serious
injuries) occur at the rate of about 43.6 per year. In the
2007/2008 season, there were 41 serious injuries.
Thirty-two of these serious injuries were skiers and nine
were snowboarders. The rate of serious injury in 2007/2008
was 0.68 per million skier/snowboarder visits. According
to a Centers for Disease Control and Prevention (CDC) study
in the journal, Wilderness and Environmental Medicine, more
people are hurt snowboarding than any other outdoor
activity, accounting for a quarter of emergency room
visits. Almost 213,000 people were treated each year in
emergency departments for outdoor recreational injuries
from 2004 to 2005. Of those injured, about 109,000 (51.5
percent) were young people between the ages of 10 and 24.
Ski helmet usage
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The purpose of the helmet is to partially absorb the force
of blunt trauma and dissipate the energy so that the head
alone does not sustain the total force of the blow. While
helmets do not decrease the risk of injury, they can
decrease the severity. Ski helmets are graded on their
ability to withstand frontal blunt and sharp impact,
retention strength, and resistance to roll off. American
standards indicate that those helmets with a rating of RS
98 from the Snell Memorial Foundation of the American
National Standards Institute (ANSI) have the highest level
of protection in all tested areas of impact.
Helmet utilization in the U.S. is increasing by about five
percent per year for the last several years. In the
2004/05, season the overall usage of helmets among the
general public (skiers and snowboarders) was estimated to
be 33.2 percent. It was higher among children 9 and under
at 66 percent; it was next highest among those over 65, at
46 percent. Only 19 percent of entry level skiers and
snowboarders used a helmet versus advanced/expert at 45
percent. Among males, 35.2 percent used a helmet, and 30.4
percent of females wore a helmet.
In January 1999, the U.S. Consumer Product Safety
Commission (CPSC) released a report on an investigational
study of skiing- and snowboarding-related head and neck
injuries, in an attempt to determine whether helmets would
have prevented or reduced the severity of the injuries they
studied. They note that head injuries account for 14
percent of skiing and snowboarding accidents, as well as 56
percent of related deaths. Falls were the leading cause of
head and neck injuries, when individuals either hit a
surface (48 percent) or hit their ski equipment (21
percent). About two-thirds of the falls to a surface
resulted in injuries to parts of the head which were
identified as addressable by use of a helmet. Overall, the
study indicated that 44 percent of head injuries, an
estimated 7,700 injuries annually, could be addressed by
helmet use. The study also showed that for children under
15 years of age, 53 percent of head injuries (approximately
2,600 of the 4,950 head injuries annually) are addressable
by use of a helmet.
U.S. CPSC noted that studies have shown safety helmets for
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motorcycling and bicycling provide effective protection
against head and brain injuries, including severe brain
injuries. They believe it is reasonable to suggest, from
the bicycling and motorcycling experience, that a skiing
helmet that meets a suitable standard could provide
effective protection against head and brain injuries in
many types of skiing-related incidents involving head
impact. Based on this information as well as their
investigational study, they conclude that the use of
helmets will reduce the risk of head injury associated with
skiing and snowboarding.
Existing federal regulation applicable to ski resorts
operating on federal property
Ski areas located on land owned by the U.S. Forest Service
are authorized under a special-use permit from the U.S.
Department of Agriculture (USDA), to partner with the
Forest Service to achieve common goals of managing and
promoting active participation in alpine recreation.
Federal regulations state that it is the responsibility of
the authorized officer to ensure that the holder of a
winter recreation resort permit, in consultation with the
authorized officer, prepare and annually revise an
operating plan that covers all operations authorized by the
permit. The authorized officer must approve the operating
plan and annual revisions before they are implemented.
Once approved by the authorized officer, the operating plan
and annual revisions must be incorporated as an appendix to
the permit.
The operating plan for a winter recreation resort shall, at
a minimum, address the following operations: a) ski patrol
and first aid; b) communications; c) signs; d) general
safety and sanitation; e) erosion control; f) accident
reporting; g) avalanche control; h) search and rescue; i)
boundary management; j) vegetation management; k)
designation of representatives; l) trail routes for Nordic
skiing; and, m) explosive magazine security (where
applicable). The federal requirements are non-specific,
relying on federal forest service personnel to determine
whether a particular plan is suitable or sufficient. The
federal regulations provide little guidance for state
officials considering a safety plan.
Related bills
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SB 880 (Yee) requires a person under 18 years of age to
wear a snow sport helmet while operating snow skis or a
snowboard, or while riding upon a seat or other device that
is attached to the snow skis or snowboard, and would
provide for a fine of $25 for violating this prohibition.
Pending in the Assembly Health Committee.
AB 990 (Jones) would have required ski resorts to prepare
and file an annual safety report with DOSH and to report to
the DOSH on a quarterly basis any serious injuries or
fatalities involving patrons at the ski resort. AB 990
died on the Suspense File in the Assembly Appropriations
Committee
SB 284 (Cox) would require the Division of Occupational
Safety and Health to utilize the most current safety
standards when inspecting aerial passenger tramways
operated at ski resorts. This bill would also require ski
resorts to file an annual safety plan with the division,
make the safety plan available on demand, report to the
division within 24 hours any fatalities involving patrons
at the resort, and standardize safety signage and
equipment. SB 284 was set for a hearing in the Senate Labor
and Industrial Relations Committee, but the hearing was
cancelled at the request of the author.
Prior legislation
AB 2218 (Keeley) of 2002 would have created the California
Ski Safety Commission (Commission) in order to adopt
uniform signs and provide a copy of its standards and
recommendations to all ski areas doing business in
California. AB 2218 would have also required ski areas
that post signs to use the signs adopted by the Commission.
This bill failed passage in the Senate Appropriations
Committee.
Arguments in support
According to the sponsor, the California Ski and Snowboard
Safety Organization (CSSSO), this bill will promote safety
at California ski resorts by requiring children to wear
helmets and improve access to ski resort safety
information, which will allow consumers to make informed
decisions. While CSSSO acknowledges the inherent dangers
of skiing and snowboarding, requiring ski resorts to
enforce the use of helmets for children on slopes, make
their safety plans publicly accessible, and provide
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information on injuries and fatalities that occur at the
ski resorts, coupled with other requirements in this bill,
will improve safety at ski resorts.
Support if amended
While the California Hospital Association (CHA) supports
the portion of the bill that requires children to use
helmets, it has concerns about provisions that allow a
private right of action for failure to provide information
about an annual safety plan, the monthly summary report, or
the source documentation information. According to the
CHA, such provisions will increase unnecessary litigation
and increase the overall cost of business.
Arguments in opposition
The California Ski Industry Association (CSIA) states that
the requirements to include a description of signage and
signage marking ski area boundaries, and both "natural and
manmade hazards," are undefined and extremely vague, and
open ski resorts to lawsuits. CSIA also opposes the
requirement to post signage at the tops and bottoms of each
ski lift, which would increase visual clutter.
Additionally, CSIA believes the requirement to report the
number of deaths and injuries is cumbersome, potentially
violates the privacy of the injured individual, and the
information could be misused or misconstrued by someone
wishing to publish the data in a misleading way. Lastly,
CSIA states that the helmet requirement in this bill would
place the ski resort in an untenable position of enforcing
the new law and open the resort to potential lawsuits.
PRIOR
ACTIONS
Assembly Rules: 10-0
Assembly Health: 12-7
Assembly Judiciary: 7-3
Assembly Floor: 44-30
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COMMENTS
1. Related bill. SB 880 (Yee) is a similar bill relating to
ski safety that was heard in this committee in March 2010.
As currently written, SB 880 (Yee) and AB 1652 both contain
provisions to require minors to wear helmets while skiing
or snowboarding. However, AB 1652 contains additional
provisions to require employees at ski resorts to also wear
helmets, require that helmets meet specified safety
standards, and allow the resort to revoke a patron's ticket
or pass for failure to comply with the helmet requirement.
AB 1652 also has additional provisions to require resorts
prepare monthly summary reports and annual safety plans.
2. Author's amendments. The author is requesting to
substantially amend AB 1652 in this committee, in order to
eliminate overlap with SB 880 (Yee). The author's proposed
amendments would do the following:
a. Strike all existing language in the bill.
b. Require a ski resort that operates in California to:
(1) Prepare an annual safety plan that conforms with
the requirements of federal regulations applicable to
ski resorts operating on federal property.
(2) Make the annual safety plan available to the
public at the ski resort, upon request.
(3) Make available to the public a monthly report
containing the following information, if known:
(A) A description of each incident resulting in a
fatality which occurred on the ski resort
property and resulted from a recreational
activity, such as skiing, snowboarding, and
sledding, that the resort is designed to provide.
(B) The age of each person killed, the type of
recreational activity involved, the cause of the
fatality, the location at the resort where the
incident occurred, and the name of any facility
where medical treatment was provided. The report
shall not identify a deceased person by name or
address.
(4) Establish a standardized signage policy used to
indicate a ski area boundary, hazard, or other safety
information.
(5) Establish a policy for standardized safety padding
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or other barriers for lift towers and fixed snowmaking
equipment located on or in close proximity to groomed
ski runs.
The proposed amendments differ from the current version of
AB 1652 by:
Eliminating the helmet requirements for minors and ski
resort employees, and eliminating related provisions
regarding helmet standards and revocation of tickets and
passes for noncompliance,
Regarding the monthly report, requiring more detailed
information about the nature of injuries and fatalities
at the resort,
Requiring resorts to establish standardized policies
for signage and safety padding; whereas, the current
bill requires descriptions of standardized policies to
be included in the annual safety plan,
Eliminating the requirement to include a key for all
signage to be included in trail maps and ticket sales
locations,
Eliminating the provision that allows a person to
initiate a civil cause of action against a resort for
failure to provide a monthly summary report within a
specified timeframe,
Eliminating definitions of "ski resort" and "skier
day,"
Removing language stating that nothing in this bill
changes the existing assumption of risk doctrine as it
applies to ski resorts.
POSITIONS
Support: American Academy of Pediatrics
American College of Emergency Physicians, State
Chapter of California
California Association for Nurse Practitioners
California Chamber of Commerce (CalChamber)
California Chiropractic Association
California Emergency Nurses Association
California Hospital Association (if amended)
California Medical Association
California Nurses Association
California Psychiatric Association
California School Nurses Organization
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California Ski & Snowboard Safety Organization
Children's Specialty Care Coalition
Civil Justice Association of California
Peace Officers Research Association of California
Several individuals
Oppose: Alpine Meadows Ski Resort
Big Bear Mountain Resorts
California Ski Industry Association
Department of Consumer Affairs
Homewood Mountain Resort
Mammoth Mountain Ski Area
Mountain High Ski Resort
Mt. Shasta Ski Park (MSSP)
National Ski Areas Association (NSAA)
Northstar at Tahoe Resort
Sierra at Tahoe Snowsports Resort
Squaw Valley USA
An individual
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