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Kentucky Resources Council, PO Box 1070, Frankfort, KY 40602 Phone [502] 875-2428

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PO Box 1070, Frankfort, KY 40602  Phone 502.875.2428, Fax 502.875.2845

Airport Seeks Immunity From Liability  Posted: February 19, 2003

Kentucky Resources Council, Inc.

Post Office Box 1070

Frankfort, Kentucky 40602

(502) 875-2428 phone (502) 875-2845 fax

e-mail fitzKRC@aol.com

February 19, 2003

To: Chairman Gross Lindsay, House Judiciary Committee

Members, House Judiciary Committee

From: Tom FitzGerald

Re: House Bill 407

I am writing to express my concern with the breadth of immunity from civil liability contained in House Bill 407. While apparently intended to provide an immunity from negligent behavior in response to aviation threats from outside, the language also provides immunity from responsibility for emergencies caused by airport personnel.

KRC questions, as a threshold matter, whether immunity from civil liability for negligence can be extended to any particular group engaged in commercial activity, consistent with Kentucky's Constitutional protections of access to courts and preservation of rights of action existing at the time of adoption of the state constitution. KRC questions further whether such a bill is needed, since the standard of care to which a party would be held for injuries resulting from decisions made in emergency response would be adjusted to account for the exigencies of the situation.

Beyond this, however, the definition of "aviation threat" is overbroad and excuses from responsibility injuries to life and property caused by the actions or inactions of airport personnel rather than outside forces. For example, the spill or release of a hazardous substance or biological material being shipped or being managed on site, caused by negligence of a worker or through a failure of containment, that might injure a visitor or neighbors, would be covered by this immunity even though not caused by an outside threat beyond the control of the airport. A collapse of a building due to failure to maintain the structure would be subject to the immunity.

Neighbors and visitors to airports have a legitimate expectation that the facility will be managed properly and that, where harm results from occurrences that are within the control of the facility, liability will follow the harm. While questioning any capacity to immunize harm, KRC believes that "aviation threat" must be redefined to more narrowly craft the exception in order to immunize only those actions taken in response to externally-caused emergencies. In that vein, KRC proposes that the definition of "aviation threat" at p. 3, lines 8-27, and p. 4 line 1 be deleted and replaced with this language:

"Aviation threat" means an emergency situation posing an immediate threat to public health or safety resulting from an act of terrorism, sabotage or war.

This change removes the possibility that airport personnel actions or inactions causing emergency situations could be immunized, and achieves the more tailored goal of raising the threshold for liability for emergency response to external threats.

Thank you for your consideration of these concerns.

cc: Rep. Steve Riggs

Bob Benson

Kennedy Helm

2



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