Torts—Recreational Use Immunity Statute—“Nominal” Fee and Gross Negligence/Pleading & Disclosure Obligations

Allen v. Town of Prescott Valley, 786 Ariz. Adv. Rep. 10 (App. Div. I, March 13, 2018) (J. Johnsen)

FEE OF $270 PER TEAM FOR SOFTBALL LEAGUE WAS “NOMINAL” UNDER RECREATIONAL USE STATUTE DEFEATING NEGLIGENCE CLAIM BUT EVIDENCE OF NOTICE OF NONFUNCTIONING LIGHTS AND AUTHORITY TO CANCEL GAME CREATED FACT QUESTION ON THEORY OF GROSS NEGLIGENCE/NO OBLIGATION TO AMEND COMPLAINT OR SPECIFICALLY ALLEGE “GROSS NEGLIGENCE” IN DISCLOSURES WHERE DEFENDANT PLEADS IMMUNITY BASED UPON STATUTE IN ANSWER

Plaintiff sustained a severe head injury when he was hit in the head by a fly ball during a night softball game in a league sponsored by the defendant Town of Prescott Valley.  Plaintiff alleged his injury was caused by his inability to see due to the fact that two light standards in the outfield were not functioning. He further claimed the Town was aware the lights were not working and the umpire provided by the Town had the authority to call the game off due to this hazard but chose not to. 

The trial court granted the Town's motion for summary judgement based upon the recreational use immunity statute. The Arizona Court of Appeals affirmed the finding that the recreational use statute applied but reversed and remanded finding a jury question remained regarding whether or not the Town's conduct constituted gross negligence taking the action outside the recreational use statute.

 ARS §33-1551 provides:

A.A public or private owner, easement

holder, lessee, tenant, manager or occupant of

premises is not liable to a recreational or

educational user except on a showing that the

owner, easement holder, lessee, tenant,

manager or occupant was guilty of willful,

malicious or grossly negligent conduct that

was a direct cause of the injury to the

recreational or educational user.

* * *

1. For purposes of this section:

* * *

5. "Recreational user" means a person to

Whom permission has been granted or implied

without the payment of an admission fee or

any other consideration to ... enter premises

to ... engage in ... outdoor recreational

pursuits. ... A nominal fee that is charged by

a public entity or a nonprofit corporation to

offset the cost of providing the educational or

recreational premises and associated services

does not constitute an admission fee or any

other consideration as prescribed by this

section.

 The town charged $270 per team to participate in the eight game league. The court of appeals computed this out to be $2.81 per player on a team. This the court found was “nominal” and intended to cover the cost of providing the fields and associated services necessary to conduct the league.

 However, the court further found  that despite the fact plaintiff did not plead gross negligence nor set forth such a claim in disclosure statements he was entitled to a jury trial on the issue. The court found that the immunity statute was not made an issue in the case until defendant pled it in its Answer and found no authority requiring a plaintiff to seek leave to amend the Complaint to plead a theory in reaction to a defense first set forth in an Answer.  As to the disclosure statements, the court found the plaintiff was never required to specifically allege gross negligence. Instead the question was simply whether he had disclosed adequate facts to support such a theory. 

 Here allegations the Town knew of the non functioning lights for 3-5 days, that the non functioning lights created a dark spot where the injury occurred and the fact the Town's umpire had the authority to call the game due to the hazard was adequate for the gross negligence claim to go to the jury.