JERRID ALLEN and JADE ALLEN, husband and wife, Plaintiffs/Appellants,
TOWN OF PRESCOTT VALLEY a Municipal Corporation of Arizona, Defendant/Appellee.
from the Superior Court in Yavapai County No.
P1300CV201500935 The Honorable Patricia A. Trebesch, Judge
Mountain Law Group, PLLC, Prescott Valley By Mark A. Kille
Co-Counsel for Plaintiffs/Appellants
& Roberts, PC, Scottsdale By David L. Abney Co-Counsel
Doyle Firm, PC, Phoenix By William H. Doyle, Dwayne E. Ross
Counsel for Defendant/Appellee
Presiding Judge Diane M. Johnsen delivered the opinion of the
Court, in which Judge Kent E. Cattani and Judge Jennifer M.
Jerrid Allen sustained serious head injuries playing softball
in a league sponsored by the Town of Prescott Valley. After
Allen sued for negligence, the superior court granted summary
judgment to the Town under the recreational-use immunity
statute, Arizona Revised Statutes ("A.R.S.") §
33-1551 (2018). We hold the fee the Town charged
Allen's team to play in the league did not deprive the
Town of the statute's protection, but remand for a trial
on whether the Town acted with gross negligence.
AND PROCEDURAL BACKGROUND
The Town charged softball teams $270 each to play in an
eight-game league at Mountain Valley Park. The fee partially
offset costs the Town incurred in running the league,
including field maintenance, lighting and umpires. On the
night Allen was hurt, two light standards in the outfield
were not functioning, and a fly ball hit Allen in the face
after he lost it in the dark. On summary judgment, Allen
presented evidence that the umpire the Town hired for the
game could have postponed play due to the malfunctioning
lights but did not do so.
The superior court entered summary judgment for the Town,
reasoning that the fee Allen's team paid to play in the
league was a "nominal fee" within the meaning of
§ 33-1551(C)(5) and that Allen had not offered evidence
sufficient to show the Town acted with gross negligence.
Allen timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution and A.R.S.
§§ 12-120.21(A)(1) (2018) and -2101(A)(1) (2018).
Summary judgment may be granted "if the moving party
shows that there is no genuine dispute as to any material
fact and the moving party is entitled to judgment as a matter
of law." Ariz. R. Civ. P. 56(a). We review the superior
court's entry of summary judgment de novo, Dreamland
Villa Community Club, Inc. v. Raimey, 224 Ariz. 42, 46,
¶ 16 (App. 2010), and construe all facts in favor of
Allen, the nonmoving party, Melendez v. Hallmark Ins.
Co., 232 Ariz. 327, 330, ¶ 9 (App. 2013).
"Recreational User" and "Nominal
Section 33-1551 offers limited immunity to a property owner
sued by a "recreational user." In ...