Appeal
from the Superior Court in Maricopa County, The Honorable
Lori Horn Bustamante, Judge, No. CV2015-013292. REVERSED AND
REMANDED IN PART
Opinion
of the Court of Appeals, Division One, 245 Ariz. 67, 425 P.3d
243 (App. 2018). VACATED IN PART
David
L. Abney (argued), Ahwatukee Legal Office, PC, Phoenix;
Matthew L. McClellan, The McClellan Law Firm PLC, Phoenix,
Attorneys for Marcie Normandin
Joseph
L. Brownlee (argued), Joshua T. Greer, Moyes Sellers &
Hendricks, Ltd., Phoenix, Attorneys for Encanto Adventures,
LLC
JUSTICE
LOPEZ authored the opinion of the Court, in which CHIEF
JUSTICE BALES and JUSTICES TIMMER, BOLICK, GOULD, and
PELANDER (RETIRED) and JUDGE ESPINOSA[*] joined.
OPINION
LOPEZ,
JUSTICE.
Page 440
[¶1]
We consider whether Arizonas recreational use statute,
A.R.S. § 33-1551, immunizes Encanto Adventures LLC
("Encanto") from liability in a simple negligence
action for injuries Marcie Normandin, a recreational user,
sustained after falling in Encanto Park. We hold that Encanto
is not a "manager" of land used for recreational
purposes and therefore it is not immune from liability under
the statute.
I.
[¶2]
Encanto operates an amusement park in an area of Encanto Park
known as Picnic Island. In 1991, the City of Phoenix (the
"City") and Encantos predecessor executed a
concessionaire agreement (the "Agreement") to
establish the amusement park wherein the City licensed
certain exclusive rights to construct, maintain, and operate
childrens rides within a fenced-in area of Picnic Island
known as Enchanted Island. The Agreement also allowed
Encantos predecessor to use an unfenced portion of Picnic
Island adjacent to Enchanted Island known as the
"piñata area."
[¶3]
There is no dispute that the Agreement governs Encantos
relationship with the City. Encantos owner testified in a
deposition that for twenty-five years, pursuant to the
Agreement, he maintained Picnic Island, including the
piñata area, by patrolling, maintaining, inspecting,
preparing, and grooming the grounds. Although Encanto has
been responsible for the piñata areas maintenance, it
does not have exclusive rights to use the piñata area,
nor does it otherwise control public access to it.
[¶4]
Normandin paid Encanto $287 for a "Petes Package"
to host her daughters first birthday party at Enchanted
Island. Petes Package included all-day-ride wristbands for
partygoers, as well as tables and a four-hour pavilion
reservation. Although Encanto allowed customers to bring a
piñata to their party if they broke it outside the
fenced-in Enchanted Park, the package agreement explicitly
stated that Encanto would not provide a piñata for the
party and that no portion of Normandins payment would be
refunded if she declined to participate in a piñata
activity.
[¶5]
Normandin brought a piñata to the party and Encanto
accommodated her, as it did its other customers, by directing
her to the public piñata area adjacent to the
fenced-in Enchanted Park. An Encanto employee also led
Normandin to the piñata area, hung the piñata
for her from a tree outfitted for such purpose, and raised
and lowered the piñata as the partygoers tried to
break it.
[¶6]
While walking through the piñata area, Normandin fell,
breaking her ankle and injuring her arm. She alleged she fell
because she stepped into a sprinkler-head divot or depression
covered by grass. In her complaint, Normandin pleaded a
single count of premises liability, a simple negligence
claim, against the City and Encanto. Encanto and the City
moved for summary ...