from the Superior Court in Maricopa County No. CV2015-013292
The Honorable Lori Horn Bustamante, Judge
McClellan Law Firm, P.L.C., Phoenix By Matthew L. McClellan.
Ahwatukee Legal Office, P.C., Phoenix By David L. Abney
(argued) Co-Counsel for Plaintiff/Appellant.
Sellers & Hendricks, Phoenix By Joseph L. Brownlee
(argued), Joshua T. Greer Counsel for Defendants/Appellees.
Paul J. McMurdie delivered the opinion of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Jennifer B.
Marcie Normandin appeals from the superior court's grant
of summary judgment in favor of Encanto Adventures, LLC,
d/b/a Enchanted Island Amusement Park ("Encanto")
and the City of Phoenix ("City"), which resolved
Normandin's premises-liability negligence claim. We
affirm the superior court's ruling and hold that: (1)
Encanto was a "manager" within the meaning of
Arizona Revised Statutes ("A.R.S.") section 33-1551
because Encanto administered and directed the maintenance of
the area in question pursuant to an agreement with the City;
(2) Normandin was a recreational user under §
33-1551(C)(5) because no part of the fee she paid to Encanto
was paid to enter the area of the park where the injury
occurred; and (3) the statute is constitutional as applied to
AND PROCEDURAL BACKGROUND
In 1991, the City and Encanto's predecessor executed an
agreement to establish a children's amusement park within
Encanto Park ("Park") in "an area . . . known
as Picnic Island" ("Concession Premises"). In
the agreement, the City licensed certain exclusive rights to
construct, maintain, and operate children's rides in a
fenced-in area of the Concession Premises ("Enchanted
Island"), which also allowed Encanto's predecessor
to use the remainder of the Concession Premises
("Agreement"). Encanto's owner, Kraig Lyon,
testified that for 25 years he personally maintained the
Concession Premises, including an area neighboring Enchanted
Island where piñata games were often played
("piñata area"). Normandin acknowledges that
Encanto regularly patrolled, maintained, inspected, prepared,
and groomed the piñata area.
Normandin paid $287 to Encanto for her one-year-old
daughter's birthday party ("Pete's
Package") to be held at the Enchanted Island. Pete's
Package included "thirty all day ride wristbands . . .,
ten tables . . . [, ] a private shaded area (by trees only)
for 4 hours, [a special appearance by] Pete the Parrot, [and
a] T-Shirt for the Birthday Boy/Girl." Pete's
Package explicitly excluded a piñata, and provided no
part of Normandin's payment for the package would have
been refunded had Normandin decided not to bring her own
piñata or declined to participate in a piñata
Encanto allows its customers to bring a piñata and
play the game during their birthday celebrations. However,
Encanto requires that any piñata be broken outside of
the fenced-in area of Enchanted Island. Encanto recommends
customers use the piñata area near the birthday party
venue, but outside of Enchanted Island. Normandin fell in the
piñata area while assisting her daughter in breaking a
piñata. Normandin broke her right ankle and injured
her right arm. She alleged she fell because she stepped into
a sprinkler-head divot or depression covered by grass in the
In her complaint, Normandin pled a single count of premises
liability, a simple negligence claim, against the City and
Encanto. Encanto and the City moved for summary judgment
based on the immunity provided by A.R.S. § 33-1551(A).
The motion was granted, and Normandin timely appealed. We
have jurisdiction pursuant to A.R.S. §§
12-120.21(A)(1) and -2101(A)(1).
Normandin argues the superior court erred by granting summary
judgment because: (1) Encanto was not an entity protected by
§ 33-1551(A), whether as an "owner, . . . lessee, .
. . manager or occupant" of the premises; (2) Normandin
either paid more than a nominal fee to Encanto, which
excluded her from being a recreational user of the Park under
§ 33-1551, or the nominality of the fee paid is a
question of fact to be resolved by a jury; (3) for private
persons and private corporations, § 33-1551 violates the
Anti-Abrogation Clause, Article 18, Section 6, of the Arizona
Constitution; (4) the statute violates the Equal
Privileges-and-Immunities Clause, Article 2, Section 13, of
the Arizona Constitution; and (5) the statute is an
unconstitutional special law.
Summary judgment is proper if "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); MacKinney v. City of Tucson, 231 Ariz.
584, 586, ¶ 6 (App. 2013). On appeal from the grant of
summary judgment, we view all facts and reasonable inferences
in the light most favorable to Normandin, see Andresano
v. County of Pima, 213 Ariz. 65, 66, ¶ 2 (App.
2006), and review the superior court's decision de
novo, MacKinney, 231 Ariz. at 586, ¶ 6. Whether
§ 33-1551 applies and whether it is constitutional are
questions of law, subject to de novo review.
Andresano, 213 Ariz. at 67, ¶ 6; see also
Prince v. City of Apache Junction, 185 Ariz. 43, 45
(App. 1996) (issues of statutory interpretation are reviewed
de novo), superseded by statute on other grounds as
recognized in MacKinney, 231 Ariz. at 590, ¶ 18,
Because we "decide cases on nonconstitutional grounds if
possible," Ramirez v. Health Partners of S.
Ariz., 193 Ariz. 325, 328, ¶ 10 (App. 1998), we
will first address Normandin's statutory arguments,
see Herman v. City of Tucson, 197 Ariz. 430, 432,
¶ 7 (App. 1999). "Our primary goal in interpreting
a statute is to give effect to the legislature's intent,
and the language of a statute is the most reliable evidence
of that intent." MacKinney, 231 Ariz. at 587,
Section 33-1551's Immunity Against Claims for
Simple Negligence Applies to Both the City and
"[I]n 1965, the Committee of Officials on Suggested
State Legislation set forth a Model Act to encourage private
landowners to open their land to the public for recreational
purposes." Michael S. Carroll, Dan Connaughton &
J.O. Spengler, Recreational User Statutes and Landowner
Immunity: A Comparison of State Legislation, 17 J. of
Legal Aspects of Sport 163, 164 (2007) (citing Council of
State Governments, 1965). "Currently, all 50 states have
recreational user statutes that limit the liability of
landowners who open their lands to allow public recreational
use for injuries sustained by persons using their land . . .
." Id. at 169. Arizona adopted its version of
the model act in 1983. See 1983 Ariz. Sess. Laws,
ch. 82, § 1. The current version of the statute reads:
A public or private owner, easement holder, lessee, tenant,
manager or occupant of premises is not liable to a
recreational . . . user except on a showing that the owner,
easement holder, lessee, tenant, manager or occupant was
guilty of wilful, malicious or grossly negligent conduct that
was a direct cause of the injury to the recreational . . .
A.R.S. § 33-1551(A).
Neither party disputes that Normandin's injury occurred
inside the Park. Likewise, the parties recognize that the
Park qualifies as a premises covered by §
33-1551(C)(3)-(4) ("'Premises' means . . . park
. . . and any other similar lands, wherever located, that are
available to a recreational . . . user . . . .");
see also MacKinney, 231 Ariz. at 589, ¶ 13 (a
park "is a parcel of property kept for recreational use
that is designed and maintained for the primary purpose of
allowing users to engage in an undisputedly recreational
activity"). Neither party disputes that the City owns
the Park or that the statute provides immunity to the City if
Normandin was a recreational user. Finally, neither party
disputes Normandin was engaged in a recreational activity
(hanging and breaking the piñata) when the injury
occurred. See A.R.S. § 33-1551(A), (C)(5)
(protected activity includes ...