Appeal
from the Superior Court in Maricopa County The Honorable Lori
Horn Bustamante, Judge No. CV2015-013292
Opinion
of the Court of Appeals, Division One 245 Ariz. 67 (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.
LOPEZ
JUSTICE
¶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 judgment based on the recreational use
immunity provided by § 33-1551(A). The trial court
granted the motions.
¶7
The court of appeals affirmed the trial court's summary
judgment in favor of the City and Encanto, concluding that
(1) Encanto is immune as a "manager" under §
33-1551(A); (2) Normandin was a "recreational user"
under § 33-1551(A); (3) the statute does not violate the
anti-abrogation clause of article 18, section 6 of the
Arizona Constitution (as applied to Encanto); (4) the statute
does not violate the equal privileges and immunities clause
of article 2, section 13 of the Arizona Constitution (as
applied to Encanto); and (5) the statute is not an
unconstitutional special law as applied to managers of
defined land in ...