Normandin v. Encanto Adventures, LLC

          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 Arizona’s 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 Encanto’s predecessor executed a concessionaire agreement (the "Agreement") to establish the amusement park wherein the City licensed certain exclusive rights to construct, maintain, and operate children’s rides within a fenced-in area of Picnic Island known as Enchanted Island. The Agreement also allowed Encanto’s 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 Encanto’s relationship with the City. Encanto’s 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 area’s 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 "Pete’s Package" to host her daughter’s first birthday party at Enchanted Island. Pete’s 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 Normandin’s 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 ...