New Ariz Ct App Decision re Recreational Use Statute

Torts-Recreational Use Statute: MacKinney v. City of Tucson, __Ariz. Adv. Rep. __, 2 CA-CV 2012-0125 (App. Div. II, March 13, 2012) (J. Espinosa) ARIZONA'S RECREATIONAL USE STATUTE APPLIES TO INJURIES INCURRED ON A CITY GOLF COURSE IF FEES CHARGED TO PLAY ARE NOMINAL

Plaintiff slipped and fell approaching the 7th tee on a City of Tucson golf course and sued the city for personal injury. The defendant moved for summary judgment claiming Arizona's recreational use statute (ARS sec. 33-1551) provided immunity to the city. The trial court denied the motion finding a city golf course did not fit within the definition of premises under the statute. Subsequently, the plaintiff obtained a $180,000 verdict with 70% fault apportioned to the plaintiff for a net result of $54,000 in plaintiff's favor. The defendant appealed the denial of the motion for summary judgment and the Arizona Court of Appeals agreed, vacating and remanding.

Arizona's recreational use statute provides immunity from suit to the owner, easement holder, lessee or occupant of "premises" for injuries suffered on the premises by a "recreational or educational user" unless the defendant's conduct is "willful, malicious or grossly negligent." The statute originally defined premises as "agricultural, range open space, park, flood control, mining, forest or railroad lands, and any other similar lands." In 1993, "park lands" was added to the definition by the legislature. Further, while "golf course" is not in the recreational use statute definition of "premises," in another context the Arizona legislature defined golf course as, "substantially undeveloped land, including amenities such as landscaping, irrigation systems, paths and golf greens and tees, that may be used for golfing or golfing practice by the public or by members and guests of a private club." A.R.S. § 42-13151." Accordingly, the court of appeals found a city golf course to fit within the definition of premises under the recreational use statute.

Then the question became did the plaintiff pay to use the golf course which would take him out of the definition of a recreational user. The city argued his father paid the fee not the plaintiff and it was a nominal fee paid to a third party. The court held it matter not who paid the fee or whether it was paid to a third party. However, the question of whether the fee was "nominal" was one of mixed law and fact and therefore the case was remanded for further proceedings by the trial court. "It must be "nominal," and it must be charged to offset the cost of providing the recreational premises and associated services" to fit the exception.