BILL ANALYSIS Ó
SENATE HEALTH
COMMITTEE ANALYSIS
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 278
S
AUTHOR: Gaines
B
AMENDED: March 22, 2011
HEARING DATE: April 6, 2011
2
CONSULTANT:
7
Orr
8 SUBJECT
Public safety: ski resorts
SUMMARY
Requires ski resorts to prepare an annual safety plan 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. Requires a ski
resort to establish a signage policy and a safety padding
policy.
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.
Existing state law:
Specifies the requirements for obtaining a license for, and
the operation of, passenger aerial tramway at ski resorts
Continued---
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and requires the Division 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 DOSH.
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.
This bill:
Requires a ski resort that operates in California to
prepare an annual safety plan, in addition to meeting
federal regulations, and to make the plan available to the
public at the ski resort upon request within 30 days of the
request.
Requires a ski resort to create a monthly report including
descriptions of each incident at the resort resulting in a
fatality occurring from participating in recreational
activities offered at the resort. The report must include
the age of the person fatally injured, the type of activity
involved, the cause of the fatality, the location where the
incident occurred at the resort, and the name of the
medical facility where treatment was provided. Excludes the
resort from naming the fatally injured person.
Requires the resort to make the report available within 30
days of receipt of the request.
Requires that resorts establish signage policies to
indicate ski area boundaries, closed areas, degree of slope
difficulty, and other unspecified safety and educational
information. Resorts must also establish policies for
safety padding or other barriers for lift towers and
snowmaking equipment located on or near groomed ski runs.
States that nothing in the bill changes the existing
assumption of risk doctrine as it applies to ski resorts.
FISCAL IMPACT
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This bill has not yet been analyzed by a fiscal committee.
BACKGROUND AND DISCUSSION
The author's intent is to require ski resorts to prepare a
safety plan and provide public access to information
regarding ski and snowboard fatalities. The author claims
there is a need to have a uniform safety plan among ski
resorts that the public could be familiar with and a
streamlined process for the public to be able to access
reports of fatalities at these resorts due to snow
activities.
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
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 (USFS). Ski resorts located on
federal property are required to file annual operating or
safety plans with the USFS. Although the USFS has
contractual authority to enforce safety improvements on
land leased to ski resorts, with no established national
safety standards, the USFS takes a "hands-off" position on
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safety regulation. Individuals testifying at the
informational hearing reported great difficulty in
obtaining copies of the plans from the USFS 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, about 40.6
people have died skiing/snowboarding per year on average
over the past 10 years. Serious injuries (injuries
resulting in paralysis, serious head injuries, etc.) from
skiing/snowboarding occur at the rate of about 43.6 per
year nationwide. 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 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 people between
the ages of 10 and 24.
Existing federal regulation applicable to ski resorts
operating on federal property
Ski areas located on land owned by the USFS are authorized
under a special-use permit from the U.S. Department of
Agriculture, to partner with the USFS 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
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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
SB 105 (Yee) would require 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. Pending hearing in the Senate
Appropriations Committee.
Prior legislation
SB 880 (Yee) of 2010 was substantially similar to SB 105.
SB 880 was signed by the governor but included a provision
making the bill contingent on the enactment of AB 1652
(Jones, 2010). AB 1652 was vetoed which then voided SB
880's chaptered status.
AB 1652 (Jones) of 2010 was substantially similar to SB
278. Vetoed, with the message: "Many California ski resorts
are located on US Forest Service (USFS) land, and are
already required to compile and file safety and accident
reports with USFS as well as maintain some of this
information in the resort management office. Ski resorts
in California also already mark their ski area boundaries
and trails with appropriate information. This bill may
place an unnecessary burden on resorts, without assurance
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of a significant reduction in ski and snowboard-related
injuries and fatalities."
SB 284 (Cox) of 2009 would have required DOSH to utilize
the most current safety standards when inspecting aerial
passenger tramways operated at ski resorts. This bill would
have also required 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 canceled at the request of the author.
AB 990 (Jones) of 2009 would have required ski resorts to
prepare and file an annual safety report with DOSH and to
report to 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.
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. This bill would have also required ski areas
that post signs to use the signs adopted by the Commission.
AB 2218 failed passage in the Senate Appropriations
Committee.
Arguments in support
The California Ski & Snowboard Safety Organization supports
safety improvements in California skiing, snowboarding and
recreational snow sports and believes making information on
safety practices and performance at ski resorts readily
available to the public will further enhance the public's
safety. They state that individuals and families should be
informed about the hazards and risks that exist with snow
sports and that California resorts should make reasonable
efforts to prevent or reduce the number of accidents and
injuries without fundamentally altering the enjoyment of
the sport.
The California Chapter of American College of Emergency
Physicians (CAL/ACEP) believes this bill is important
accident prevention and injury management legislation. They
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state that many of the injuries CAL/ACEP member physicians
see during the winter months result from ski and snowboard
accidents, and that many of those injuries could have been
avoided with better signage for boundaries and hazards at
those resorts. They believe that the data derived from the
reporting requirements in this bill will provide
opportunities for stronger accident and injury prevention
policies.
COMMENTS
1. Availability of the annual safety plan. SB 278
requires that the annual safety plan be available to
someone who requests it at the resort within 30 days
of receiving the request. Many ski resort patrons
visit for only a few days at a time, and are not
necessarily likely to wait for 30 days to receive the
report. A suggested amendment would be on page 2 line
12; delete "at the resort".
Also, in order to reduce the staff time and printing
costs that may be needed to respond to each individual
request for a copy of the plan and to help ensure
compliance with this provision of the bill, the author
may wish to require resorts to post these plans on
their websites. A suggested amendment would be on page
2, line 13 after "request" insert "and make the plan
available on the ski resort's website."
2. Policy vs. standards. SB 278 requires ski resorts
to establish policies for safety padding or other
barriers for lift towers and fixed snowmaking
equipment located on or in close proximity to groomed
ski runs. The author may wish to consider if
"standards" would be a more appropriate term to
capture the intent of this bill in order to ensure
that padding used by the resorts will be of
appropriate type and thickness to protect skiers.
Also, the author may wish to consider including these
standards and the signage policies in the annual
safety plan.
POSITIONS
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Support: California Chapter of American College of
Emergency Physicians
California Ski & Snowboard Safety Organization
California Ski Industry Association
California State Sheriffs' Association
Oppose: None received.
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