BILL ANALYSIS
AB 1652
Page 1
Date of Hearing: April 20, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1652 (Jones) - As Amended: April 12, 2010
SUBJECT : PUBLIC SAFETY: SKI RESORT SAFETY ENHANCEMENTS
KEY ISSUE : SHOULD A HOST OF NEW PROTECTIONS AT SKI RESORTS BE
REQUIRED, INCLUDING A REQUIREMENT THAT SKIERS AND SNOWBOARDERS
UNDER 18 YEARS OF AGE, AS WELL AS PERSONS EMPLOYED BY A SKI
RESORT, BE REQUIRED TO WEAR A PROPERLY FITTED AND FASTENED SNOW
SPORT HELMET WHILE OPERATING SNOW SKIS OR A SNOWBOARD IN AN
EFFORT TO REDUCE HEAD INJURIES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill is part of a laudable continuing effort by lawmakers
to protect the health and well-being of skiers and snowboarders
in California. Multiple studies continue to show an encouraging
direct correlation between helmet use and a lower incidence of
head trauma. This bill seeks to require a person under 18 years
of age or a person employed by a ski resort, as defined, to wear
a properly fitted and fastened snow sport helmet while operating
snow skis or a snowboard. Some ski resorts have already
commenced such mandatory helmet policies for their employees
beginning with this year's snow season. Under this bill, a ski
resort in the state would be responsible for enforcing the
under-18 and employee helmet requirement, and the resort would
be required to revoke the lift ticket of any patron found in
violation of this safety requirement.
The measure also seeks to increase skier safety by strengthening
signage marking requirements and by requiring all ski resorts
operating in California to prepare an annual safety plan with
specified safety information. Among other things, the bill also
seeks to increase skier awareness of the risks involved in
skiing and snowboarding by requiring all ski resorts operating
in California to produce monthly summary reports of deaths and
injuries and would require a ski resort to provide an annual
safety plan and other documents to any person upon request.
Failure to comply with such a requirement would form the basis
AB 1652
Page 2
of a potential civil cause of action to compel the production of
the requested items where the prevailing plaintiff could seek
reimbursement for costs and fees. Finally, the bill specifies
that it should not be construed to change the existing
assumption of the risk doctrine in any way as it applies to ski
resorts.
The bill is sponsored by the California Ski and Snowboard Safety
Organization, an organization whose stated mission is to promote
and support safety improvements in California skiing,
snowboarding and recreational snow sports. It also has the
support of several healthcare associations, including the
American College of Emergency Physicians/California Chapter, the
California Brain Injury Association, the California Chiropractic
Association, California Emergency Nurses Association, the
California School Nurses Organization, as well as the Peace
Officers Research Association of California. It is opposed by
the industry umbrella group, the California Ski Industry
Association, as well as the Civil Justice Association of
California. The measure recently passed the Assembly Health
Committee by a vote of 12-7.
SUMMARY : Seeks to enhance skier and snowboarder safety at
California ski resorts by requiring a person under 18 years of
age or a person employed by a ski resort to wear a properly
fitted and fastened snow sport helmet when operating snow skis
or a snowboard, as well as requiring ski resorts to make other
safety improvements and develop new safety materials for ski
patrons. Specifically, this bill :
1)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 standards of the American Society
for Testing and Materials (ASTM) International (originally
known as the American Society for Testing and Materials) or
the Snell Memorial Foundation 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
revoke the ticket or pass of the patron who violates the
helmet requirement if observed during usual and customary
enforcement of resort rules.
2)Requires a ski resort that operates in California to:
a) Prepare an annual safety plan that, in addition to
AB 1652
Page 3
meeting federal regulations, includes a description of
signage marking specified ski area boundaries and hazards,
a key to all signage on all trail maps, clearly posted at
each lift entrance and exit, the types of hazards that will
be marked by signage if subject to protection by fencing or
padding, and other specified information;
b) 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 Internet Web site, if one is maintained;
c) 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;
d) Report injuries, if known, in specified categories, and
include the total number of skier days for that month;
e) Provide the monthly summary 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;
f) Generate the monthly summary report based on specified
source documentation information, such as a description of
each injury or fatality from a recreational activity that
occurred on the ski resort's property for which operating
personnel have generated a written report or of which the
resort or those personnel are aware absent a report.
Requires the ski resort to also include: age; gender; date
and time; helmet use; cause of death or injury of the
person who was injured or died; if known; and, other
specified information;
g) Include in the source documentation information whether
resort personnel recommended that the injured or deceased
person seek specified medical treatment, transport to a
hospital, or a visit to a medical doctor.
h) Make the source documentation information available to
any person who requests it in person or in writing within
14 business days of the request, remove all personally
identifying information from the document prior to public
viewing or duplication, and allow the resort to charge a
AB 1652
Page 4
reasonable fee not to exceed $0.25 per page, to provide
copies and recover cost of postage, if applicable.
3)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.
EXISTING LAW :
1)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. (California Code of Regulations Sections
3165-67.)
2)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. (Penal
Code Section 602.8 (r).)
3)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. (Labor Code Section 7914.)
4)Prohibits a person under 18 years of age from operating a
bicycle, a nonmotorized scooter, in-line or roller skates, or
a skateboard, nor riding 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 standard subsequently
established by those entities. This requirement also applies
to a person who rides upon a bicycle while in a restraining
seat that is attached to the bicycle or in a trailer towed by
the bicycle. Violations are punishable by a fine of not more
than $25. (Vehicle Code Section 21212 (a).)
5)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
AB 1652
Page 5
Nordic and alpine skiing operations and purposes. (16 U.S.C.
497 Section 497(b).)
COMMENTS : This bill is part of a continuing effort by lawmakers
to protect the health and well-being of skiers and snowboarders
in California. Multiple studies continue to show an encouraging
direct correlation between helmet use and a lower incidence of
head trauma. This bill seeks to require a person under 18 years
of age or a person employed by a ski resort, as defined, to wear
a properly fitted and fastened snow sport helmet while operating
snow skis or a snowboard. Some ski resorts have already
commenced such mandatory helmet policies for their employees
beginning with this year's snow season. Under this bill, a ski
resort in the state would be responsible for enforcing the
under-18 and employee helmet requirement, and the resort would
be required to revoke the lift ticket of any patron found in
violation of this safety requirement. The measure also seeks to
increase skier safety by strengthening signage marking
requirements and by requiring all ski resorts operating in
California to prepare an annual safety plan with specified
safety information. Among other things, the bill also seeks to
increase skier awareness of the risks involved in skiing and
snowboarding by requiring all ski resorts operating in
California to produce monthly summary reports of deaths and
injuries and would require a ski resort to provide an annual
safety plan and other documents to any person upon request.
Failure to comply with such a requirement would form the basis
of a potential civil cause of action to compel the production of
the requested items where the prevailing plaintiff could seek
reimbursement for costs and fees. Finally, the bill specifies
that it should not be construed to change the existing
assumption of the risk doctrine in any way as it applies to ski
resorts.
Author's Statement in Support : 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.
Additionally, 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% of all accidents. The report also
AB 1652
Page 6
found that skiers and snowboarders who crashed or fell had a 15%
reduction in the risk of any head injury if they were wearing a
helmet.
Several Ski resorts have recognized the life-saving value of
helmets, Vail Resorts (Keystone, Breckenridge, Vail and Beaver
Creek in Colorado, along with Heavenly in California), among
several others have all announced mandatory helmet policies for
its employees beginning with the 2009-10 snow season. The
author states that this bill takes a comprehensive approach to
promote increased safety for skiers and snowboarders by
requiring better signage, accident and injury reports, and
helmet use for youth and resort employees.
Ski And Snowboard Accident Statistics . According to "Skiing
Trauma and Safety: Sixteenth Volume," accidents claimed the
lives of 562 snowboarders and skiers at U.S. ski resorts between
1992 and 2005. The significant majority of the fatalities were
skiers. Experienced males between the ages of 18 and 43
accounted for most of the deaths, most commonly due to severe
head injuries resulting from high-speed impact with a tree. An
estimated 100,000 to 140,000 injuries at ski resorts require
treatment in an emergency room each year. Approximately 37.1
people have died skiing or snowboarding per year on average.
Ski And Snowboard Helmet Studies . Numerous studies conducted in
the last few years have shown that skiers and snowboarders who
wear helmets have a reduced risk of head injuries. According to
a 2005 study by Hagel, Pless, Goulet, Platt, and Robitaille
titled "Effectiveness of Helmets in Skiers and Snowboarders:
Case-Control and Case Crossover Study," helmets may reduce the
risk of head injuries in skiers and snowboarders by 29%-56%.
Another study by Macnab, Smith, and Gagnon titled, "Effect of
Helmet Wear on the Incidence of Head/face and Cervical Spine
Injuries in Young Skiers and Snowboarders," found that helmet
use for skiers and snowboarders under the age of 13 reduces the
incidence of head injury requiring investigation and/or
treatment. Additionally, the United States Consumer Product
Safety Commission estimates that 44% of head injuries sustained
during skiing and snowboarding could be prevented by the use of
helmets and that the use of helmets for children could reduce
head injuries during these activities in this group by 53%.
All three studies concluded that helmets protect skiers and
snowboarders against head injuries.
AB 1652
Page 7
Assembly Judiciary Committee Informational Hearing . In November
2008 this Committee held an informational hearing on the "Ski
and Snowboard Health, Safety and Liability Standards." The
background materials stated approximately 30 resorts in
California draw skiers and snowboarders from all over the world.
Recently publicized deaths and injuries of resort guests and
personnel have drawn public attention to the industry's safety
policies and practices. The vast majority of the public is
poorly informed about serious risks facing the customers, as
well as the employees at California ski resorts. The ski
industry in California reportedly, at that time, had no uniform
safety policies, procedures, or signage, and those safety
practices that were in place varied from location to location.
The author contends that increased snowboarding presents unique
safety issues and the need for specific new precautionary
measures.
Federal Regulations Applicable To Ski Resorts Operating On
Federal Property . 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 holder of the permit must
incorporate the operating plan and annual revisions 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.
Summary of Helmet Legislation and Regulation in Other
Sovereignties : A number of states reportedly have ski safety
AB 1652
Page 8
laws, many of which pertain to the "inherent dangers" of skiing.
Inherent dangers can include weather, snow, rocks, collisions
with natural and manmade objects, other skiers, and the failure
of skiers to ski within their own ability. However, no federal
or state law yet reportedly requires actual helmet use,
according to the National Ski Areas Association. Currently,
mandatory ski helmet legislation has reportedly been introduced
in New Jersey, New York, and now, California. Internationally,
Austria reportedly has a new ski safety law requiring all skiers
under 15 to wear helmets on the slopes. Italy reportedly was
the first European country to insist that children wear helmets
on the ski slopes; since January 1, 2005, any family with a
child under the age of 14 found skiing or snowboarding in Italy
without a helmet faces a fine.
World's Shortest Primer on the Assumption of the Risk Doctrine :
The issue of assumption of risk involves the existence and scope
of a defendant's duty of care, which is a legal question that
depends on the nature of the activity involved and the parties'
relationship to that activity. The doctrine of assumption of
risk in negligence cases embodies two components: (1) primary
assumption of risk-where the defendant owes no duty to the
plaintiff to protect him or her from the particular risk, and
(2) secondary assumption of risk-where the defendant owes the
plaintiff a duty, but the plaintiff knowingly encounters a risk
created by the breach of that duty. ( Knight v. Jewett , 3
Cal.4th 296, 308 (1992).) Primary assumption of risk operates
as a complete bar to the plaintiff's cause of action, while the
doctrine of secondary assumption of risks is part of the
comparative fault scheme, where the trier of fact considers the
relative responsibility of the parties in apportioning the loss.
( Morgan v. Fuji Country USA, Inc. (1995) 34 Cal.App.4th 127 at
p. 132.) Before concluding that a case comes within the
doctrine of primary assumption of risk, a court must not only
examine the nature of the sport, but also the " 'defendant's
role in, or relationship to, the sport.' " ( Knight, supra, 3
Cal.4th at p. 317.) Indeed, the scope of the legal duty owed by
the defendant will frequently depend on such role or
relationship. The Knight court noted that many courts, in
analyzing the duty of the owner of a sports facility or ski
resort, had defined "the risks inherent in the sport not only by
virtue of the nature of the sport itself, but also by reference
to the steps the sponsoring business entity reasonably should be
obligated to take in order to minimize the risks without
altering the nature of the sport." (Id. at p. 317, italics
AB 1652
Page 9
added.) The court concluded "that in the sports setting, as
elsewhere, the nature of the applicable duty or standard of care
frequently varies with the role of the defendant whose conduct
is at issue in a given case." (Id. at p. 318.)
This measure seeks to clarify that it does not change existing
law pertaining to the assumption of risk doctrine in any way.
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 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, they have concerns about provisions that allow
private rights 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 overall cost
of business.
ARGUMENTS IN OPPOSITION : Several groups oppose this
legislation. The California Ski Industry Association (CSIA)
states that the requirement to include a description of signage
and signage marking ski area boundaries, and both "natural and
manmade hazards," are undefined, extremely vague, and opens the
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.
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. Among other things
the organization writes in opposition that:
AB 1652
Page 10
Posting more signs at the tops and bottoms of lifts
will only increase visual clutter and increase the
chance that a skier/rider will run into the additional
signage. For example, Squaw Valley Ski Resort has 32
chair lifts and, under the terms of AB 1652, they
would be required to post upwards of 64 new signs.
Ski resorts offer skiers and snowboarders the
opportunity to ski and ride in mountainous terrain
with changing conditions. Natural hazards exist on
the mountain, and are part of the sport. They cannot
and should not be marked. Requiring ski areas to mark
hazards and obstacles is impossible and contrary to
the fundamental nature of the sport, and exposes the
ski resorts to additional lawsuits?
Lastly, CSIA states that it could support legislation requiring
persons under the age of eighteen to wear a safety helmet, as
long as the responsibility rests with the parent and the ski
areas would not be responsible for enforcing such a mandate.
The requirement in AB 1652 that would require resort personnel
to revoke the ticket or season pass would, CSIA asserts, lead to
potential lawsuits in instances where the resort neglected to
require helmet usage.
The Civil Justice Association of California (CJAC) states that
they oppose this bill because it contains a number of litigation
traps for ski resorts. Primarily, CJAC believes that several
parts of the bill would serve to undermine the doctrine of
assumption of the risk, despite the explicit language in the
bill making clear that nothing in the bill "shall be construed
to change the existing assumption of the risk doctrine as it
applies to ski resorts."
In support of their argument, CJAC notes the pertinent state
case of Knight v. Jewett (3 Cal.4th 296 (1992)), a leading case,
as noted above, on the assumption of the risk doctrine in
California in which the court articulated two different
doctrines of assumption of risk. The organization correctly
notes that primary assumption of risk means that, due to the
nature of the activity and the parties' relationship to the
activity, the defendant owes no legal duty to protect the
plaintiff from the risk of harm, so plaintiff's recovery is
completely barred. By contrast, secondary assumption of risk
means that even though the defendant does owe a legal duty to
AB 1652
Page 11
the plaintiff, the jury can and should consider the plaintiff's
decision to encounter a known risk when apportioning relative
responsibility for the injury.
In Knight, CJAC notes, the court analogized the case involving
co-participants in a touch football game to ski moguls, and said
that "[i]t may be accurate to suggest that an individual who
voluntarily engages in a potentially dangerous activity or sport
'consents to' or 'agrees to assume' the risks inherent in the
activity or sport itself, such as the risks posed to a snow
skier by moguls on a ski slope..." (3 Cal.4th 296, 311.) The
court also noted, "Thus, although moguls on a ski run pose a
risk of harm to skiers that might not exist were those
configurations removed, the challenge and risks posed by the
moguls are part of the sport of skiing, and a ski resort has no
duty to eliminate them." (Id. at 315.) CJAC argues that the
bill will undermine the assumption of the risk doctrine outlined
in Knight, as it pertains to warning signage of natural and
manmade hazards, and would, the organization contends, open the
ski resorts to litigation for a failure to warn of obvious
hazards.
Finally, CJAC expresses concern that the bill will, it clams,
permit a plethora of lawsuits against ski resorts who allegedly
fail to produce the annual safety plan, monthly summary report,
or source documentation used to compile those materials within
the time limits set forth in the bill.
Current Related Legislation : SB 880 (Yee) requires a person
under 18 years of age to wear a properly fitted and fastened
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. SB 880 would also prohibit the sale
or offer for sale, for use by an operator of snow skis or a
snowboard, any safety helmet that does not meet specified safety
requirements and would require such helmets to be labeled in
accordance with these. SB 880 passed the Senate Health
Committee on April 14, 2010, by a vote of 6-2.
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.
AB 1652
Page 12
SB 284 (Cox) would have required DOSH to utilize the most
current safety standards when inspecting aerial passenger
tramways operated at ski resorts. SB 284 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. SB 284 died in the Senate Labor and Industrial
Relations Committee.
Previous 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.
REGISTERED SUPPORT / OPPOSITION :
Support
California Ski and Snowboard Safety Organization (sponsor)
American College of Emergency Physicians/California Chapter
California Brain Injury Association
California Chiropractic Association
California Emergency Nurses Association
California Hospital Association (support if amended)
California Medical Association
California Nurses Association
California Physical Therapy Association
California Psychiatric Association
California School Nurses Organization
Peace Officers Research Association of California
Opposition
California Ski Industry Association
Civil Justice Association of California
California Travel Industry Association
Governor's Office of Planning and Research
Analysis Prepared by : Drew Liebert and Barry Jardini / JUD. /
(916) 319-2334
AB 1652
Page 13