Dickey v. City of Flagstaff

• Decision Date: 27 May 1999
• Docket Number: No. 1 CA-CV 98-0026.,1 CA-CV 98-0026.
• Citation: 197 Ariz. 422,4 P.3d 965
• Parties: William H. DICKEY, on his own behalf and as Guardian Ad Litem of the minor child William Dickey; Rebecca Carlson Dickey, wife of William H. Dickey; and Jane Doe, natural mother of minor William Dickey, Plaintiffs-Appellants, v. CITY OF FLAGSTAFF, a municipal corporation, Defendant-Appellee.
• Court: Arizona Court of Appeals

4 P.3d 965

197 Ariz. 422

William H. DICKEY, on his own behalf and as Guardian Ad Litem of the minor child William Dickey; Rebecca Carlson Dickey, wife of William H. Dickey; and Jane Doe, natural mother of minor William Dickey, Plaintiffs-Appellants, v. CITY OF FLAGSTAFF, a municipal corporation, Defendant-Appellee.

No. -0026.

Court of Appeals of Arizona, Division 1, Department E.

May 27, 1999.

Dale H. Itschner and Jerry L. Smith, Flagstaff, for Plaintiffs-Appellants.

Mangum, Wall, Stoops & Warden, P.L.L.C. by Daniel J. Stoops and Michael H. Hinson, Flagstaff, for Defendant-Appellee.

OPINION

THOMPSON, Presiding Judge.

¶ 1 Appellant William Dickey (William) was seriously injured in a sledding accident at a city park in Flagstaff. In his action against appellee City of Flagstaff (the City), the trial court granted summary judgment in favor of the City, ruling that the recreational use statute applied to give the City immunity from liability because it was not guilty of wilful, malicious, or grossly negligent conduct. The court also decided that the attractive nuisance doctrine did not apply in this case and that the statute in question is constitutional. We affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 Because this is an appeal from summary judgment in favor of defendant, we view the facts in the light most favorable to plaintiffs. See Tellez v. Saban, 188 Ariz. 165, 167, 933 P.2d 1233, 1235 (App.1996)

.

¶ 3 In January 1995, when William was ten years old, he went sledding in Flagstaff with his stepmother, Rebecca Carlson Dickey (Mrs. Dickey), and his siblings. Looking for a place to sled, they arrived at Thorpe Park and noticed "lots of people" there. William sledded down Mars Hill at the park on an inflatable snow tube. On his first sled run down the hill, he collided with a tree and sustained severe injuries that resulted in paraplegia.

¶ 4 The City acquired the land known as Thorpe Park from the federal government in 1989. The quitclaim deed that conveyed the property to the City contains a covenant that the land "shall be used for public open space, park and recreational purposes." As early as 1964, a ski hill was artificially created on Mars Hill.

¶ 5 Despite the presence of this area that could be used as a sledding hill, the City periodically posted signs at Thorpe Park and Mars Hill that stated: "WARNING This Area Not Recommended For Any Form Of Sledding." However, the City parks department had a difficult time keeping signs on the trees at the top of the hill because people would remove the signs and use them for sleds. The City parks superintendent remembered that such warning signs were in place in January 1995, but Mrs. Dickey testified that there were no warning signs at the park on the day William was injured.

¶ 6 William, his father, stepmother, and mother (appellants) sued the City. They alleged that prior to William's accident, the City knew that members of the public had suffered injuries from sledding at Thorpe Park but that the City had made no reasonable effort to control or prohibit sledding or make it safe for the public.

¶ 7 Appellants filed a motion for summary judgment in which they argued that they were entitled to judgment as a matter of law on liability because no statutory immunity, including the Recreational Use Statute, Ariz. Rev.Stat. Ann. (A.R.S.) § 33-1551, applied to prevent recovery against the City. The trial court found that disputed issues of material fact existed and denied the motion.

¶ 8 The City then filed a motion for summary judgment arguing that it was immune from liability under A.R.S. § 33-1551 because no reasonable jury could find that it engaged in wilful, malicious, or gross negligence that caused William's injuries. In response, appellants re-urged their motion for summary judgment.

¶ 9 The trial court granted the City's motion. It found that A.R.S. § 33-1551 applied in the case, that attractive nuisance law did not apply, and that there was no wilful, malicious, or grossly negligent conduct that was a direct cause of William's injuries. The court also ruled that A.R.S. § 33-1551 does not violate the Arizona Constitution. It again denied appellants' motion for summary judgment.

¶ 10 Appellants filed a timely notice of appeal from the judgment in the City's favor. We have jurisdiction under A.R.S. § 12-2101(B).

DISCUSSION

I. Gross Negligence Standard

¶ 11 The trial court granted summary judgment in favor of appellee based on the Recreational Use Statute, A.R.S. § 33-1551. This statute provides that public or private owners of land are immune from liability to recreational users "except upon a showing that the owner ... was guilty of wilful, malicious or grossly negligent conduct which was a direct cause of the injury to the recreational... user." A.R.S. § 33-1551(A). "Grossly negligent" is defined as "a knowing or reckless indifference to the health and safety of others." A.R.S. § 33-1551(C)(2). ¶ 12 Appellants argue that they presented sufficient evidence of gross negligence to withstand appellee's motion for summary judgment. According to appellants, they produced evidence that the City created the artificial condition of the sledding hill and encouraged its use for sledding even after being put on notice that numerous injuries had been sustained by sledders who used the hill.

¶ 13 In most cases, "the issue of gross negligence is a question of fact to be decided by the jury." Walls v. Arizona Dep't of Public Safety, 170 Ariz. 591, 595, 826 P.2d 1217, 1221 (App.1991) (citing Southern Pac. Transp. Co. v. Lueck, 111 Ariz. 560, 563, 535 P.2d 599, 602 (1975)). To escape summary judgment on the issue of gross negligence, the plaintiff must present evidence that is more than slight and that does not border on conjecture. See id. (citing DeElena v. Southern Pac. Co., 121 Ariz. 563, 569, 592 P.2d 759, 765 (1979)). However, "[a] court may withdraw the issue of gross negligence from the jury only when no evidence is introduced that would lead a reasonable person to find gross negligence." Id. (citing Smith v. Chapman, 115 Ariz. 211, 214, 564 P.2d 900, 903 (1977)).

¶ 14 As noted above, for purposes of A.R.S. § 33-1551(A), "grossly negligent" is "a knowing or reckless indifference to the health and safety of others." This statutory definition is consistent with the following explanation by the Walls court:

A party is grossly or wantonly negligent if he acts or fails to act when he knows or has reason to know facts which would lead a reasonable person to realize that his conduct not only creates an unreasonable risk of bodily harm to others but also involves a high probability that substantial harm will result.

Id. (citing Nichols v. Baker, 101 Ariz. 151, 153, 416 P.2d 584, 586 (1966)). Gross negligence is different from ordinary negligence in quality and not degree; a person can be very negligent and still not be grossly negligent. See Kemp v. Pinal County, 13 Ariz. App. 121, 124-25, 474 P.2d 840, 843-44 (1970)

.

¶ 15 Reckless disregard of the safety of others is not only unreasonable but also involves a risk of harm to others substantially in excess of that found in negligent conduct. See Townsend v. Whatton, 21 Ariz. App. 556, 560, 521 P.2d 1014, 1018 (1974)

. "It must involve an easily perceptible danger of death or substantial physical harm, and... [a] probability that it will so result ... substantially greater than is required for ordinary negligence." Id.

¶ 16 Appellants assert that the City was grossly negligent because it created the sledding hill and encouraged its use even after knowing that a number of persons were injured in sledding accidents on the hill. The evidence produced in the trial court, however, weighs against this argument.

¶ 17 First, the only evidence in the record concerning the creation of the sledding hill indicates that the area was cleared no later than 1964, long before the City acquired the park property in 1989. Thus, although the City may maintain the property, there is no evidence that it was grossly negligent in creating a dangerous condition that led to William's injuries or that it was grossly negligent in its maintenance of the property.¹

¶ 18 Second, there is no evidence that the City "encouraged" the use of Mars Hill for sledding. In fact, the evidence shows that the City attempted to discourage sledding on the hill by posting warning signs. The fact that the City was unable to ensure that the signs were always present does not make it grossly negligent. See Jones v. United States, 693 F.2d 1299, 1305 (9th Cir.1982)

(while government was negligent in failing to put up signs or ropes on ski slope, its failure to do so did not rise to level of wilful and wanton conduct); Wringer v. United States, 790 F.Supp. 210, 213 (D.Ariz.1992),

aff'd, 10 F.3d 809 (9th Cir.1993) (failure of government to post signs warning against running across frozen lake after a person fell through the ice and drowned did not constitute reckless disregard of possible results).

¶ 19 At most, the City permitted sledding at Mars Hill. In Boaldin v. University of Kansas, 242 Kan. 288, 747 P.2d 811, 812-12 (1987), the court considered whether the university engaged in gross and wanton conduct that took it outside the protection of the recreational use statute where it was aware of sledding on campus and of prior accidents but nevertheless allowed students to check out cafeteria trays for sledding. It concluded that the fact that the university was aware of sledding on campus, even in light of prior accidents, was not evidence of gross and wanton conduct. See id. at 815. The court reasoned:

Almost every recreational activity has risks of injury, and that is the reason for adopting a provision such as K.S.A. 75-6104(n). If permitting recreational activity to occur knowing that injury may result is to be considered gross and wanton conduct, then every governmental entity in this state would be guilty of gross and wanton conduct. To adopt

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