BILL ANALYSIS �
SENATE COMMITTEE ON HEALTH
Senator Ed Hernandez, O.D., Chair
BILL NO: SB 564
AUTHOR: Monning
AMENDED: April 16, 2013
HEARING DATE: April 24, 2013
CONSULTANT: Robinson-Taylor
SUBJECT : Ski resorts: safety plans: accident reports.
SUMMARY : Requires ski resorts to prepare an annual safety plan
and create a monthly summary report stating the number of deaths
at the resort.
Existing law:
1.Provides that the federal Secretary of Agriculture is
authorized to issue permits for the use and occupancy of lands
within the United States National Forest System (National
Forest System) for Nordic and alpine skiing operations and
purposes.
2.Establishes the Ski Area Recreational Opportunity Enhancement
Act of 2011 which permits on National Forest System lands
additional snow sports as well as year-round activities such
as zip lines, mountain bike terrain parks and trails, Frisbee
golf courses, and rope courses.
3.Provides that every person who, as specified, 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.
4.Specifies the requirements for obtaining a license for and the
operation of passenger aerial tramway at ski resorts and
requires the Division of Occupational Safety and Health
(Cal/OSHA) to conduct inspections of aerial tramways
biannually.
5.Requires the reporting of any fatality or injury of a patron
requiring more than standard first aid by an operator of
amusement rides to Cal/OSHA.
This bill:
1. Requires ski resorts operating in California to do the
following:
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a. Prepare an annual safety plan that conforms
with federal requirements applicable to ski resorts
operating on federal property;
b. Make the annual safety plan available to the
public at the ski resort, upon request, the same day
the request is received;
c. Make available to the public, within 30 days
of receipt of a request, a monthly report containing,
if known:
i. 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; and,
ii. The age of each person fatally injured in
an incident identified in i) above, 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. Prohibits the
report from identifying a deceased person by name or
address.
2. Prohibits anything in this bill from being construed to
change the existing assumption of risk doctrine as it
applies to ski resorts.
FISCAL EFFECT : This bill is keyed non-fiscal.
COMMENTS :
1.Author's Statement. Deaths and debilitating injuries occur
every year at California ski resorts. The actual number of
death and injuries are known only to the resorts. They do not
report this information to any federal or state agency or make
it available to the public. The author asserts, the public
assumes that resorts are making all reasonable efforts to
prevent accidents and reduce the number of deaths as well as
the number and severity of injuries. However, there are no
industry safety standards or recommended practices. Recent
independent research has shown a high degree of variability
and inconsistency of safety practices between and within
resorts. Patrons are asked to accept broad waivers of resort
liability when they purchase a lift ticket or season pass.
The author maintains, in light of such broad liability
waivers, they deserve to know what safety practices,
standards, policies and procedures the resorts do or do not
employ. They also deserve to know the number and nature of
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the deaths and injuries that occur at the resorts. The author
argues that this bill will assure that the public has access
to this information so that they can make a fully informed
decision about the risks they are accepting and to assist them
in their choice of resorts for themselves and their families.
According to the author, if ski resorts expect patrons to be
personally responsible and assume liability for any accidents
that occur, then the consumer should be given as complete and
accurate information as possible about resort safety
management, deaths and injuries.
2.California ski industry and federal requirements. According
to the California Ski Industries Association (CSIA),
California has the second largest ski market in the country
only behind Colorado. The state hosts an extensive
recreational nordic and alpine skiing and snowboarding
industry, with approximately 25 resorts drawing skiers and
snowboarders from all over the world every year.
Nineteen of California's twenty-five ski resorts are located on
lands within the National Forest System, 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. As a part of
the federal requirements to obtain a ski resort operation or
"special use" permit, each resort maintains an operating plan
that, at a minimum, addresses 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 USFS personnel to
determine whether a particular plan is suitable or sufficient.
Each resort maintains a safety plan as a part of its
operating plan, however, in order to gain access to a ski
safety plan from a resort on federal land, an individual must
request it through the Freedom of Information Act.
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.
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3.Risk of injury from skiing. In California death and injury
data is collected by individual resorts. The data is then
sent to insurance companies and the National Ski Areas
Association (NSAA) where the data remains confidential. NSAA
calculates the severe injury and death rate in the United
States and post this information on their Internet website.
According to the latest data currently available on NSAA's
website, 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
recreational activity, accounting for a quarter of emergency
room visits.
4.Double referral. This bill is double referred. Should it
pass out of this committee, it will be referred to the Senate
Judiciary Committee.
5.Prior legislation. SB 278 (Gaines) of 2011, was very similar
to this bill and would have required ski resorts to prepare an
annual safety plan and make it available to the public the
same day a request was received at the resort. SB 278
required a monthly report with specified details about any
fatal incidents at the resort which resulted from a
recreational activity to be available within 30 days at the
resort, and required a ski resort to establish a signage
policy and a safety padding policy. SB 278 was vetoed by
Governor Edmund G. Brown, Jr. stating that, "the measure is
unnecessary -yet another exercise of the State's regulatory
power for objectives that, in the ordinary course, are handled
by private business or the people themselves."
SB 1652 (Jones) of 2010, was very similar to this bill and would
have required ski resorts to prepare an annual safety plan,
make the safety plan available to the public upon 30 days of
receipt of a request, and make available to the public, within
30 days of receipt of a request, a monthly report with
specified details about any fatal incidents at the resort
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which resulted from a recreational activity. SB 1652 also
would have required a ski resort to establish its own signage
policy and its own safety padding policy for the resort. SB
1652 was vetoed by Governor Arnold Schwarzenegger stating
that, "this bill may place an unnecessary burden on resorts,
without the assurance of a significant reduction in ski and
snowboard-related injuries and fatalities."
SB 880 (Yee), Chapter 278, Statutes of 2010, requires any
person under 18 years of age to wear a properly fitted and
fastened snow sport helmet, that meets specified standards,
while downhill skiing or snowboarding, or while riding upon a
seat or other device that is attached, and imposes a fine of
$25 for a violation of this requirement.
AB 990 (Jones) of 2009 would have required ski resorts to
prepare and file an annual safety report with Cal/OSHA and to
report to the Cal/OSHA 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) of 2009 would have required Cal/OSHA to utilize
the most current safety standards when inspecting aerial
passenger tramways operated at ski resorts. SB 284 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.
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.
6.Support. The California Ski and Snowboard Safety Organization
(CSSSO), the sponsors of this bill, write in support that
because skiing and snowboarding are inherently dangerous
activities, safety should always be a top priority. CSSSO
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maintains that individuals and families have a right to be
informed about the hazards and risks that exist prior to
selecting a ski resort. Accordingly, California ski resorts
should make reasonable efforts to prevent and reduce the
number of accidents and injuries without fundamentally
altering the enjoyment of the sport. This bill, CSSSO argues,
calls for practical precautions for safety to improve the
safety of ski patrons and employees.
The California Chapter of the American College of Emergency
Physicians (California ACEP) wrote in support of a previous
version of this bill that during the winter months, California
ACEP members treat patients with injuries resultant from ski
and snowboard accidents. California ACEP argues that many of
these injuries could be avoided if patrons were aware of the
potential hazards at ski resorts. California ACEP maintains
that understanding risks is the first step in injury
prevention and the creation of an annual safety plan will
prevent injuries and save lives.
7.Opposition. CSIA, representing California's 25 ski resorts,
wrote in opposition to a previous version of this bill that
this bill would impose burdensome new requirements on
California ski resorts and open them up to potential increased
liability. CSIA argued that the only instance they can
foresee this type of information being used is one where a
resort's operations are being scrutinized for the comparison
purposes in potential lawsuits.
The Civil Justice Association of California wrote regarding a
previous version of this bill that although this bill states
that it cannot be construed to change the assumption of risk
doctrine as it applies to ski resorts, the substance of the
bill contains unjustified litigation traps that will have the
effect of increasing unwarranted litigation against ski
resorts.
SUPPORT AND OPPOSITION :
Support: California Ski and Snowboard Safety Organization
(sponsor)
Support (Previous version):
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American Nurses Association\California
California Chapter of the American College of
Emergency Physicians
California Chiropractic Association
California Medical Association
Traumatic brain injury services of California
Oppose (Previous version):
Association of Professional Patrollers
California Ski Industry Association
Civil Justice Association of California
Dodge Ridge Ski Area
Granlibakken Management Company
Homewood Mountain Resort
Lake Tahoe South Shore Chamber of Commerce
Mammoth Mountain Ski Area
Mountain High Resort
National Ski Areas Association
National Ski Patrol, Inc.
North Lake Tahoe Chamber/CVB/Resort Association
Snow Summit Ski Corporation
Snow Valley Mountain Resort
South Tahoe Association of REALTORS
Tahoe Donner
6 individuals
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