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Torts: Recreational Use Statute: Manager of Premises/ Non Payment of Fee to Use Specific Area

Posted by Ted A. Schmidt | Jul 09, 2018 | 0 Comments

Normandin v. Encanto Adventures, LLC, __Ariz. Adv. Rep.  No. 1 CA-CV 17-0373 (App. Div. I, June 26, 2018) (J. McMurdie). 
Plaintiff brought this premises liability claim against the defendants City of Phoenix and Encanto Adventures [Encanto] arising out of an injury sustained in the “Piñata Area” of Encanto Park when she tripped on a sprinkler head. 
The City of Phoenix had a contract with Encanto allowing Encanto to operate an amusement park within Encanto Park in a fenced in area on an island called Enchanted Island. Defendant operated and maintained the fenced in area and an area outside the fenced in area where patrons could engage in breaking piñatas. 
Plaintiff paid $287 to defendant for a birthday party package for her one year old daughter at Enchanted Island. The fee was for wristbands, rides, shaded tables, a Birthday T-shirt and a visit from Pete the Parrot. The contract with plaintiff specifically provided that Encanto would not provide a piñata and if plaintiff brought her own piñata she was to break it outside the fenced in park in the Piñata Area. It further provided there would be no refund if plaintiff choose not to bring a piñata. 
The trial court granted defendants' motion for summary judgment finding immunity under Arizona's Recreational Use Statute A.R.S. § 33-1551(A).  The Arizona Court of Appeals affirmed.
The question was whether the statute protected Encanto. Plaintiff argued the statute only protects owners, occupiers and managers of premises and Encanto was none of these. The court noted the statute provided immunity to “managers” of the premises just as it did owners. Though Encanto never argued below that it had immunity as a “manager” of the premises, because the trial court found generally that the statute applied the argument was not waived. Further even if it was waived the court of appeals found that it had the authority to raise it on its own to avoid an incorrect result.
Because the statute does not define “manager” the court applied the common meaning supported by various dictionaries including “in charge of a group of tasks.  Though the contract was perhaps silent or ambiguous as to what responsibilities Encanto had over the piñata area, it was uncontroverted that Encanto had for year maintained the piñata area. Practice of the parties to a contract over the years will supply meaning to the contract. This maintenance constituted being “incharge of a group of tasks” and therefore Encanto was a manager of the premises entitled to immunity.
Next the court found that plaintiff was a recreational user despite the fact she paid Encanto $287 for the birthday party. Because this fee was not paid in order to “enter” Encanto park, nor to use the area outside the fenced in amusement park, it did not constitute a fee under A.R.S. § 33-1551(C)(5). Absent the payment of a fee to “enter” and use the piñata area, plaintiff's fee payment could not exempt her from the Recreational Use Statute.
Plaintiff also argued the statute violated Arizona's anti-abrogation clause in Article 18, Section 6, of the Arizona Constitution. Specifically, this clause prohibits the legislature from abrogating any claims available to citizens as of the time of adoption of the Arizona Constitution. Because at the time of adoption there was no right of action against a municipality and because Encanto was an agent of the City (by contract performing a governmental function of maintaining public land for use by citizens) in managing the pinata area, the Recreational Use Statute does not violation the anti-abrogation clause.
Next plaintiff argued the statute violates the Equal Privileges and Immunities, Article 2, Section 13, of the Arizona Constitution—Arizona's Equal Protection Clause and prohibition against creating Special Laws benefiting a select group, Article 4, Part 2, §§19(13) and 19(20), of the Arizona Constitution. Here plaintiff had no constitutionally protected right to sue a governmental entity or its agent performing a fundamental governmental function so the clause did not protect plaintiff. Further, there is a rationale basis for the Recreational Use Statute—encouraging landowners to make private lands available to the public for recreational activities. access and use of premises for recreational activities. Limiting liability to landowners who make private premises available to the public promotes that legitimate governmental purpose. Hence “recreational users” are not part of an “invidious class” of people.
Finally Rule 68(g) of the Arizona Rules of Civil Procedure does not allow for recovery of attorneys' fees and  A.R.S. § 12-332 only allows for recovery of taxable costs in the trial court. ARCAP 21 Allows for recovery of costs on Appeal.

About the Author

Ted A. Schmidt

Ted's early career as a trial attorney began on the other side of the fence, in the offices of a major insurance defense firm. It was there that Ted acquired the experience, the skills and the special insight into defense strategy that have served him so well in the field of personal injury law. Notable among his successful verdicts was the landmark Sparks vs. Republic National Life Insurance Company case, a $4.5 million award to Ted's client. To this day, it is the defining case for insurance bad faith, and yet it is only one of several other multi-million dollar jury judgments won by Ted during his career. He is certified by the State Bar of Arizona as a specialist in "wrongful death and bodily injury litigation".


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