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Allen v. Town of Prescott Valley

Court of Appeals of Arizona, First Division

March 13, 2018

JERRID ALLEN and JADE ALLEN, husband and wife, Plaintiffs/Appellants,
v.
TOWN OF PRESCOTT VALLEY a Municipal Corporation of Arizona, Defendant/Appellee.

         Appeal from the Superior Court in Yavapai County No. P1300CV201500935 The Honorable Patricia A. Trebesch, Judge

          Mingus Mountain Law Group, PLLC, Prescott Valley By Mark A. Kille Co-Counsel for Plaintiffs/Appellants

          Knapp & Roberts, PC, Scottsdale By David L. Abney Co-Counsel for Plaintiffs/Appellants

          The 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. Perkins joined.

          OPINION

          JOHNSEN, Judge

         ¶1 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).[1] 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.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 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.

         ¶3 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).

         DISCUSSION

         ¶4 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).

         A. "Recreational User" and "Nominal Fee."

         ¶5 Section 33-1551 offers limited immunity to a property owner sued by a "recreational user." In ...


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