BILL ANALYSIS                                                                                                                                                                                                    






                                 SENATE HEALTH
                               COMMITTEE ANALYSIS
                       Senator Ed Hernandez, O.D., Chair


          BILL NO:       SB 105                                      
          S
          AUTHOR:        Yee                                         
          B
          AMENDED:       March 15, 2011                              
          HEARING DATE:  March 23, 2011                              
          1
          CONSULTANT:                                                
          0              
          Orr/                                                       
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                                     SUBJECT
                                         
                       Public safety: snow sport helmets

                                     SUMMARY  

          Requires persons under 18 years of age to wear properly 
          fitted and fastened snow sport helmets while downhill 
          skiing or snowboarding. Establishes a penalty for skiers, 
          snowboarders, and/or their parent or legal guardian for 
          noncompliance.

                             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 state law:
          Requires a person under 18 years of age to wear a properly 
          fitted and fastened bicycle helmet while operating a 
          bicycle, motorized bicycle, or riding upon a bicycle as a 
          passenger, upon the streets or any other public bicycle 
          path. 

          Existing law also regulates certain behavior related to 
          recreational activities and public safety, including among 
          other activities, skateboarding and recreational water use.
                                                         Continued---



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          Establishes that every person who willfully commits a 
          trespass by knowingly skiing in an area or on a ski trail 
          which is closed to the public, and which 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.
          
          This bill:
          Prohibits persons under 18 years of age from participating 
          in the sport of downhill skiing or snowboarding, or from 
          riding upon a seat or device attached to snow skies or a 
          snowboard, without a properly fitted and fastened snow 
          sport helmet meeting specified standards.

          Establishes a fine of twenty-five ($25) dollars for any 
          violation of this section. Dismisses charges against a 
          person for violating this provision, if the person alleges 
          in court under oath that this is their first charge for 
          violating this provision.

          Requires ski resorts to post signs around the resort to 
          alert patrons about the helmet requirement for minors, and 
          the penalty for noncompliance. Also requires ski resorts to 
          provide written notice of the helmet requirement for minors 
          on all trail maps and resort websites.

          Makes the parent or legal guardian of an unemancipated 
          minor jointly and severally liable with the minor for the 
          fine. 

          Exempts Nordic skiing (i.e. cross-country) from these 
          provisions.

          Provides that the bill does not increase or decrease 




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          unspecified duties imposed under existing law.

                                  FISCAL IMPACT
                                         
          This bill has not been analyzed by a fiscal committee.

                            BACKGROUND AND DISCUSSION
                                         
          The author believes that by setting minimum standards for 
          children's ski safety, this measure will significantly 
          reduce instances of traumatic brain injury or death for a 
          vulnerable population. The author claims that data are 
          conclusive that helmets save lives and reduce severity of 
          head injuries. The author asserts that we do not allow 
          parental choice for car seats, seat belts or basic 
          vaccinations for children attending schools; nor should a 
          helmet for kids on ski slopes be optional.

          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 fixed 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 
          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 




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          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
          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. 





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          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. The National Ski Areas 
          Association says that 48 percent of skiers and snowboarders 
          in the US wore helmets in the 2008-09 season.

          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.  

          An article in the LA Times by Bill Becher titled "Headway 
          on the Slopes" published in February 2006 quoted Dr. Stuart 
          Levy of Denver whose research shows that ski helmets can 
          cut the rate of head injuries by two thirds and the risk of 
          ski or snowboard fatalities by 80 percent. Brent Hagel of 
          the University of Calgary studied crashes at 19 Canadian 
          ski resorts and concluded that helmets reduced the risk of 
          serious head injury to skiers and snowboarders by 56 
          percent. 

          US CPSC noted that studies have shown safety helmets for 
          motorcycling and bicycling provide effective protection 
          against head and brain injuries, including severe brain 




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          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. 

          Traumatic brain injury 
          According to the CDC's National Center for Injury 
          Prevention and Control, the leading causes of traumatic 
          brain injury (TBI) are: falls (35.2 percent), motor vehicle 
          - traffic (17.3 percent); struck by/against events (16.5 
          percent); and assaults (10 percent). Falls are the leading 
          cause of non-fatal injuries for all children ages 0 to 19. 
          Every day, approximately 8,000 children are treated in U.S. 
          emergency rooms for fall-related injuries. This adds up to 
          almost 2.8 million children each year. 

          In January 2010, the Senate Committee on Health convened a 
          hearing on traumatic brain injury. The California Brain 
          Injury Association testified that 220,000 Californians 
          sustain brain injuries each year, not including 
          144,000-342,000 sports-related concussions estimated to 
          occur in the state each year. Approximately 52,250 children 
          sustain a brain injury and or are hospitalized with a brain 
          injury each year. Disease management for brain injury 
          includes emergency care, intensive care, hospital-based 
          rehabilitation, non-hospital based rehabilitation, and 
          vocational rehabilitation. The nationally annualized direct 
          costs of TBI have been estimated to range between $51.2 and 
          $60 billion in the U.S.  Cost of care for a single disabled 
          person with brain injury over a lifetime can range from $1 
          to $30 million. The true extent of the economic impact to 
          the state cannot be realized because the state has no 
          epidemiology and surveillance program that thoroughly 
          tracks brain injury.  

          Ski helmet laws in other locales
          Several other states have general ski safety laws, 
          including Alaska, Arizona, Colorado and Michigan. New 
          Jersey is currently considering legislation to mandate ski 
          helmets for minors. Bills have also been introduced in New 
          York to require skiers under 15 to wear a helmet.  




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          Lawmakers in Quebec also considered requiring helmet use 
          after actress Natasha Richardson died after a fall in 2009, 
          but so far no legislation has been introduced. 

          Related bills
          SB 278 (Gaines) requires ski resorts to prepare and make 
          public an annual safety plan, create monthly reports 
          describing incidents resulting in fatalities occurring on 
          the ski resort property, and establish policies for signage 
          indicating ski boundaries and safety information, and 
          safety padding for lift towers and other equipment near ski 
          runs. This bill is set for hearing in Senate Health 
          Committee April 6, 2011.
          
          AB 695 (Norby) would exempt from mandatory helmet 
          requirements those motorcycle, motor-driven cycle or 
          motorized bicycle drivers who are 18 years of age or older 
          and have completed specified requirements. Pending in 
          Assembly Transportation Committee.

          Prior legislation
          SB 880 (Yee) Chapter 278, Statutes of 2010 was nearly 
          identical to SB 105. SB 880 included a provision making the 
          bill contingent on the enactment of AB 1652 (Jones). AB 
          1652 was vetoed by the governor, which then voided SB 880's 
          chaptered status. 

          AB 1652 (Jones) of 2010 is nearly identical to SB 278 and 
          would have required ski resorts to prepare an annual safety 
          plan, make the safety plan available to the public, and 
          make available to the public a monthly report with 
          specified details about any fatal incidents at the resort 
          which resulted from a recreational activity. The bill would 
          also require a ski resort to establish its own signage 
          policy and its own safety padding policy
          for the resort. Vetoed.

          AB 990 (Jones) of 2009 would have required ski resorts to 
          prepare and file an annual safety report with Division of 
          Occupational Safety and Health (DOSH) and to report to the 
          DOSH on a quarterly basis any serious injuries or 
          fatalities involving patrons at the ski resort. Held in 
          Assembly Appropriations Committee.

          SB 284 (Cox) of 2009 would have required DOSH to utilize 
          the most current safety standards when inspecting aerial 




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          passenger tramways operated at ski resorts.  The bill would 
          have also required ski resorts to file an annual safety 
          plan with the DOSH, make the safety plan available on 
          demand, report to DOSH, within 24 hours, any fatalities 
          involving patrons at the resort, and standardize safety 
          signage and equipment padding in use at the resort.  The 
          bill died in the Senate Labor and Industrial Relations 
          Committee.  

          SB 1924 (O'Connell) Chapter 475, Statutes of 2002, requires 
          that persons under 18 years of age wear a helmet while 
          operating a nonmotorized scooter or skateboard or riding 
          upon a nonmotorized scooter or skateboard as a passenger. 

          AB 2218 (Keeley) of 2002  would have created the California 
          Ski Safety Task Force, required the Task Force to adopt 
          uniform sign standards for adoption by California ski 
          areas, and required the Task Force to make recommendations 
          regarding safety. Died in Senate Appropriations Committee.

          AB 2268 (Caldera) Chapter 1000, Statutes of 1993,  
          prohibits a person under 18 years of age from operating, or 
          riding upon a bicycle as a passenger, upon a street, 
          bikeway, or other public bicycle path or trail unless the 
          person is wearing a helmet meeting specified standards. The 
          bill provides for fines to be imposed for violations of 
          this prohibition and requires all the revenue derived from 
          the fines to be allocated as specified. Requires that the 
          charge against a person be dismissed if it is the first 
          charge against that person for a violation of this 
          prohibition. Requires any safety helmet sold or offered for 
          sale to be conspicuously labeled in accordance with the 
          specified standards and would prohibit the sale or offer 
          for sale of any bicycle safety helmet which is not of a 
          type meeting the safety standards.

          Arguments in support
          The California Psychological Association claims 
          neuropsychological research has shown that half of all 
          skiing deaths are caused by a head injury. Observations on 
          acute rehabilitation units from brain injured patients 
          demonstrates that individuals who wore helmets during their 
          accidents seemed to have less severe injuries and were 
          consequently discharged earlier, with less in the way of 
          post-discharge services. Individuals wearing helmets were 
          more likely to return to pre-accident levels of functioning 




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          sooner, compared to their non-helmeted counterparts.  
          
          The California Ski Industry Association claims that winter 
          sports carry inherent risks and studies show helmet use in 
          many situations can lessen the risk of head injuries. The 
          most recent study by the National Ski Areas Association 
          shows that approximately 85 percent of kids under 9 years 
          of age and 75 percent of kids under 14 currently wear 
          helmets. They believe this bill, along with their national 
          campaign "Lids on Kids," will do much to educate the public 
          about the need to wear helmets when skiing or snowboarding.
          
                                     COMMENTS
           
             1.   Lack of enforcement.  As SB 105 is drafted, no 
               entity would be directly responsible for enforcing the 
               provisions of the bill, nor does the bill contain any 
               mechanisms to ensure compliance. The bill is loosely 
               modeled after existing laws requiring bicyclists to 
               wear helmets, which are enforced by local police and 
               California Highway Patrol officers who are responsible 
               for routinely patrolling roadways. However, these law 
               enforcement entities may not be natural enforcement 
               entities for this bill, because the locations of the 
               potential violations (ski resorts) are not locations 
               where most law enforcement entities conduct routine 
               patrols. The author may wish to consider one or more 
               of the following options to better ensure enforcement: 

                  a.        Mimicking all requirements in existing 
                    statute governing unsupervised recreational skate 
                    parks.  Operators of skateboard parks are 
                    prohibited from permitting any person to ride a 
                    skateboard therein, unless the person is wearing 
                    specified protective equipment, including a 
                    helmet. Local agencies, cities, or counties with 
                    public recreational skateboard facilities that 
                    are not supervised on a regular basis, implement 
                    this law by adopting a local ordinance requiring 
                    any person riding a skateboard at the facility to 
                    wear protective equipment, and by posting signs 
                    at the facility alerting boarders of the 
                    ordinance and that violators of the ordinance are 
                    subject to a citation. This bill already requires 
                    resorts to post signs about the ski helmet 
                    requirement, but the author may also wish to 




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                    consider allowing local agencies to supplement 
                    this measure with their own local ordinances.
                  b.        Placing enforcement responsibility on ski 
                    resort operators.  Ski resort operators could be 
                    required to revoke passes of noncompliant minors, 
                    or issue citations to noncompliant minors or 
                    parents. Conversely, they could be required to 
                    report violations to local law enforcement, which 
                    could then enforce the provisions. However, 
                    enforcement questions would remain, such as who 
                    would enforce the ski resorts' compliance? 

               In the absence of enforcement requirements, the author 
               may wish to consider other methods of ensuring 
               compliance with this bill including:
                  a.        Requiring lift ticket sellers or 
                    equipment rental providers to give information to 
                    purchasers about the new law at the point-of-sale 
                    and/or on the lift ticket. 
                  b.        Creating a complaint process for people 
                    to issue complaints when ski resorts are not 
                    enforcing the law or when skiers are not 
                    following the law.

             2.   Fines. The bill levies a fine of $25 for violations 
               of this bill, and waives the fine for first-time 
               offenders. It is not clear if this level of fine is 
               enough to affect behavior. Suggested amendments would 
               be to incorporate graduated fines of $25 for the first 
               offense, $50 for the second offense, and $100 for each 
               subsequent offense. 

               Also, the bill does not designate any entity to 
               receive the fines collected pursuant to this bill. The 
               author may wish to designate an appropriate entity to 
               receive the fines, which may also assist in ensuring 
                                                                                      that the measure is enforced.

             3.   Differences between SB 105 and the bicycle law. 
               This bill was primarily based on helmet laws for 
               bicyclists, with a few differences. Bicycle helmet 
               statutes contain provisions that the ski helmet law 
               does not carry over, including:
                  a.        A requirement that all helmets be labeled 
                    to certify that the helmet conforms to applicable 
                    safety standards.




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                  b.        A prohibition on the sale of helmets that 
                    do not conform to the specified safety 
                    requirements.
                  c.        Allocation of the fines collected 
                    pursuant to the statute. 




                                    POSITIONS  


          Support:  California Psychological Association (Sponsor) 
                    Alameda Psychological Association
                    American Academy of Pediatrics
                    AFSCME
                    Brain Injury Association of California
                    California Chiropractic Association
                    California Emergency Nurses Association
                    California Hospital Association
                    California Medical Association
                    California Nurses Association
                    California Psychiatric Association
                    California Psychological Association of Graduate 
               Students
                    California School Nurses Organization
                    California Ski and Snowboard Safety Organization
                    California Ski Industry Association
                    California Society of Industrial Medicine and 
               Surgery
                    California Society of Physical Medicine and 
               Rehabilitation
                    The Child Abuse Prevention Center
                    Children's Specialty Care Coalition
                    Contra Costa Psychological Association
                    Los Angeles County Psychological Association
                    Marin County Psychological Association
                    The Monterey Bay Psychological Association
                    Napa-Solano Psychological Association
                    Orange County Psychological Association
                    Pacific-Cascade Psychological Association
                    Redwood Psychological Association
                    Richmond Area Multi-Services, Inc.
                    San Diego Psychological Association
                    San Francisco Psychological Association
                    San Joaquin Psychological Association




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                    San Mateo County Psychological Association
                    Santa Clara County Psychological Association

          Oppose:   None received


                                   -- END --