Herman v. City of Tucson

• Decision Date: 23 November 1999
• Docket Number: No. 2 CA-CV 99-0064.,2 CA-CV 99-0064.
• Citation: 4 P.3d 973,197 Ariz. 430
• Parties: Michelle HERMAN and Michael Herman, wife and husband, Plaintiffs/Appellants, v. The CITY OF TUCSON, a body politic, Defendant/Appellee.
• Court: Arizona Court of Appeals

4 P.3d 973

197 Ariz. 430

Michelle HERMAN and Michael Herman, wife and husband, Plaintiffs/Appellants, v. The CITY OF TUCSON, a body politic, Defendant/Appellee.

No. -0064.

Court of Appeals of Arizona, Division 2, Department A.

November 23, 1999.

Review Denied May 23, 2000.

Law Office of William D. Nelson, P.C. by William D. Nelson, Tucson, for Plaintiffs/Appellants.

Thomas J. Berning, Tucson City Attorney by Michael E. Owen, Tucson, for Defendant/Appellee.

OPINION

PELANDER, Presiding Judge.

¶ 1 The appeal in this personal injury/premises liability action presents questions of the interpretation and constitutionality of Arizona's recreational use immunity statute, A.R.S. § 33-1551. We hold that, because plaintiff/appellant Michelle Herman did not come within the statutory definition of "recreational user" at the time of her accident in a Tucson municipal park, the City is not entitled to qualified immunity under the statute, and the trial court erred in granting summary judgment in its favor on that basis.

BACKGROUND

¶ 2 The pertinent facts in this case are undisputed. On September 2, 1995, a local radio station sponsored a fund-raising music festival (Jamaicafest) in the band shell area of Reid Park, which the City owns and maintains. The radio station rented booth space to vendors for Jamaicafest, charging each food vendor $275, which included a $10 City vendor permit fee for the privilege of selling food, drinks, and other products in the park. Michelle Herman worked for one of the vendors, Eegee's, which paid the required fees to the station so Eegee's could sell its products at Jamaicafest.

¶ 3 Eegee's assigned Michelle to work at its booth near the band shell. She went to the park that day for the sole purpose of working. After parking her vehicle in the lot closest to the band shell, Michelle was injured as she walked from the parking lot toward the band shell when she stepped in a gopher hole and fell.

¶ 4 In their complaint, the Hermans claimed that the City's negligence had caused Michelle's injury. In defense, the City asserted qualified immunity under the recreational use statute. On the parties' cross-motions for summary judgment relating to that defense, the trial court ruled in favor of the City, concluding that the statute applied to grant the City immunity because the Hermans had "never alleged or argued gross negligence." The court also denied the Hermans' request "to declare A.R.S. § 33-1551 unconstitutional." This appeal followed the trial court's entry of judgment and its denial of the Hermans' motion for reconsideration.

DISCUSSION

¶ 5 Because the facts are undisputed, we determine de novo whether the trial court correctly applied the substantive law to those facts. Carden v. Golden Eagle Ins. Co., 190 Ariz. 295, 296, 947 P.2d 869, 870 (App.1997); Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996). "We also review de novo statutory interpretation issues and constitutional claims because they involve questions of law," Prince, 185 Ariz. at 45, 912 P.2d at 49, including the question of "[w]hether the recreational use statute applies here." Smith v. Arizona Bd. of Regents, 195 Ariz. 214, 986 P.2d 247, ¶ 9 (App.1999).

¶ 6 The statute, as amended in 1993 and applicable to this case, provides in part that a public owner of "premises" is not liable to a "recreational ... user" unless the owner directly caused injury to the recreational user through willful, malicious, or grossly negligent conduct. § 33-1551(A). As defined in the statute, "premises" includes "park[s] ... and any other similar lands, wherever located, which are available to a recreational ... user." § 33-1551(C)(3). The statute defines a "[r]ecreational user" as "a person to whom permission has been granted or implied without the payment of an admission fee or other consideration to travel across or to enter upon premises to hunt, fish, trap, camp, hike, ride, exercise, swim or engage in similar pursuits." § 33-1551(C)(4).

¶ 7 The Hermans contend the statute does not apply to this case for the following reasons: Michelle was not a recreational user at the time of her accident; Jamaicafest was a civic event that did not qualify as a "recreational use"; the "fee paid" exception to immunity applies because the City received consideration for Michelle to be on the premises to sell goods at Jamaicafest; and the area where Jamaicafest was held did not constitute "premises" under the statute. Alternatively, the Hermans contend the statute violates the anti-abrogation clause in article 18, § 6, of the Arizona Constitution. Because we must endeavor to decide cases on nonconstitutional grounds if possible, Ramirez v. Health Partners of Southern Arizona, 193 Ariz. 325, ¶ 10, 972 P.2d 658, ¶ 10 (App.1998), we first address the Hermans' statutory arguments. See Prince. ¶ 8 The statute applies only if Michelle was a recreational user. The Hermans contend, and the City does not dispute, that Michelle was present at Reid Park on the accident date only because the City had permitted Eegee's to sell food products at Jamaicafest and that she was there solely to work, rather than "to hunt, fish, trap, camp, hike, ride, exercise, swim or engage in similar pursuits." § 33-1551(C)(4). Therefore, they argue, Michelle was not a recreational user at the time she was injured. The Hermans further contend the record contains no evidence that any of the activities listed in § 33-1551(C)(4) "were undertaken" or "could have been performed that day at the Reid Park bandshell [sic] area which was exclusively devoted to the civic, fund-raising activities of Jamaicafest."

¶ 9 In contrast, the City contends the statute's "definition of recreational user does not require a person to be engaged in recreational pursuits in order to be covered by the definition." Rather, the City argues, "the permission granted by the premises owner, not the behavior or subjective intentions of each person who enters the land," is determinative. According to the City, Michelle's right of access to the park was no different nor more restrictive than the City's grant of access to the general public, in that she had permission to enter the park to engage in recreational pursuits without paying a fee. Therefore, the City asserts, "that [she] accepted the invitation to enter, but did so with the intention of working rather than recreating, does not alter the parameters of the City's grant of access or change her status as a recreational user."

¶ 10 The City further maintains that, if a person's purpose and subjective intent in visiting a public park were controlling factors in determining whether he or she is a "recreational user," the public landowner would face liability exposure for simple negligence to claimants such as:

• A paid babysitter watching children in the park[ ];

• Parents who entered the park solely to search for their child who had cut school;

• Church workers who feed and minister to the homeless;

• Performers and musicians who play at free concerts but are paid by their employers;

• Promoters and other independent contractors using the park not for recreation but for their own private benefit;

• Employees of a corporation who decide to hold an outside business meeting.

According to the City, such a result "would undermine the legislature's intent of assuring the premises owners they will not be liable for simple negligence so they will be comfortable granting the public free access to their land."

¶ 11 Countering the City's arguments, the Hermans contend the City's expansive interpretation of recreational user would include "anyone who [pays no fee and] enters a park, for any reason, ... because that person `could have' entered the park to recreate." At oral argument, the City conceded that, indeed, is its position. To conclusively establish recreational user status based solely on the City's grant of permission to all persons to enter a park, the Hermans argue, would result in "a `blanket immunity' that covers everyone in the world," including the following:

[A]n employee of a food vendor such as Michelle Herman, who enters the park to work; a person making a delivery of goods that the City had ordered to the maintenance yard at Reid Park; a Department of Public Safety officer responding to a call for assistance by a park ranger; a criminal entering the park to commit murder and rape; and emergency medical personnel who enter the park to assist an injured athlete....

¶ 12 Based on well-established rules of statutory construction, we find the Hermans' argument, but not the City's, persuasive. First, and perhaps most importantly, because § 33-1551 limits the City's liability, we must narrowly or strictly construe the statute. See Ward v. State, 181 Ariz. 359, 362, 890 P.2d 1144, 1147 (1995) ("Because the statute limits common-law liability, we must construe it strictly."); Smith, 195 Ariz. 214,986 P.2d 247, ¶ 9 ("[W]e must construe [§ 33-1551] strictly to avoid any overbroad statutory interpretation that would give unintended immunity and take away a right of action.").

¶ 13 Second, our primary function "is to find and give effect to legislative intent." Mail Boxes, Etc., U.S.A. v. Industrial Comm'n, 181 Ariz. 119, 121, 888 P.2d 777, 779 (1995). "We focus first on the statutory wording and, if it is ambiguous or inconclusive, we consider the statute's `context, subject matter, historical background, effects, consequences, spirit, and purpose.' " Ramirez, 193 Ariz. 325, ¶ 11, 972 P.2d 658, ¶ 11, quoting Mail Boxes, Etc., 181 Ariz. at 122, 888 P.2d at 780.

¶ 14 Third, when "a statute expressly defines certain words and terms used in the statute, the court is bound by the legislative definition in all cases where rights of parties litigant are based upon statute." Walker v. City of Scottsdale, 163 Ariz. 206, 209, 786 P.2d 1057, 1060 (App.1989). In addition, "we must read the statute as a whole and give meaningful...