Mackinney v. City of Tucson, 2 CA–CV 2012–0125.

CourtCourt of Appeals of Arizona
Writing for the CourtESPINOSA
Citation299 P.3d 1282,231 Ariz. 584
PartiesThomas MacKINNEY, a married man, individually, Plaintiff/Appellee, v. CITY OF TUCSON, a body politic, Defendant/Appellant.
Docket NumberNo. 2 CA–CV 2012–0125.,2 CA–CV 2012–0125.
Decision Date13 March 2013

231 Ariz. 584
299 P.3d 1282

Thomas MacKINNEY, a married man, individually, Plaintiff/Appellee,
v.
CITY OF TUCSON, a body politic, Defendant/Appellant.

No. 2 CA–CV 2012–0125.

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

March 13, 2013.


[299 P.3d 1283]


The Redhair Law Group, P.C. By Jack I. Redhair and Michael Redhair, Tucson, Attorneys for Plaintiff/Appellee.

Michael G. Rankin, Tucson City Attorney By Viola Romero–Wright and Michael W.L. McCrory, Tucson, Attorneys for Defendant/Appellant.


OPINION

ESPINOSA, Judge.

[231 Ariz. 585]¶ 1 In this personal injury action, defendant/appellant City of Tucson appeals from a judgment in favor of plaintiff/appellee Thomas MacKinney. The city argues the trial court erred in denying its motion for summary judgment, asserting that Arizona's recreational-use immunity statute, A.R.S. § 33–1551, barred MacKinney's negligence claim as a matter of law. For the following reasons, we vacate and remand.

Factual Background and Procedural History

¶ 2 In reviewing a summary-judgment ruling, we view the facts in the light most favorable to the nonmoving party. City of Phoenix v. Yarnell, 184 Ariz. 310, 312 n. 2, 909 P.2d 377, 379 n. 2 (1995). In November 2009, MacKinney and his son Matthew were playing golf at a city-owned course when MacKinney slipped and fell, injuring, inter alia, his lower leg and ankle. MacKinney sued the city and the golf course, alleging the walkway approaching the seventh tee was “steep, narrow, [and] unreasonably dangerous” and had been “negligently designed, constructed and/or maintained in such a manner as to constitute an unreasonably dangerous condition.”

¶ 3 The city moved for summary judgment, arguing it was not liable for MacKinney's injuries because it was immune under Arizona's recreational-use immunity statute. See§ 33–1551. MacKinney opposed the motion, asserting the city was not immune because the golf course was not a “premises” protected under the statute and he was not a “recreational user” as defined by the statute because he had paid an admission fee for purposes of entering and using the course. The trial court denied the city's motion, initially without explanation, but subsequently issued two minute entries clarifying that the denial was based on its conclusion that a golf course is not included in the statutorily enumerated “premises” implicating recreational-use immunity and that an issue of fact existed as to whether the fee MacKinney had paid was a “nominal” one under the statute.

¶ 4 The matter proceeded to trial, and the jury found in favor of MacKinney, determining his damages to be $180,000 but allocating seventy percent of the fault to him such that [231 Ariz. 586]

[299 P.3d 1284]

the court entered final judgment against the city in the amount of $54,000. We have jurisdiction over the city's appeal pursuant to A.R.S. §§ 12–120.21(A)(1) and 12–2101(A)(1).

Discussion

¶ 5 “Generally, the denial of a summary judgment motion is not reviewable on appeal from a final judgment entered after a trial on the merits.” John C. Lincoln Hosp. & Health Corp. v. Maricopa Cnty., 208 Ariz. 532, ¶ 19, 96 P.3d 530, 537 (App.2004). If the denial was based on a point of law, however, an appellate court may review the ruling as part of its review of the final judgment on appeal. Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 4, 122 P.3d 6, 9 (App.2005). In this case, the trial court's denial of the motion was based on its conclusion that the golf course did not fall within the definition of “premises” protected under the recreational-use immunity statute, a purely legal determination as there was no dispute that the injury had occurred on a city-owned golf course and the material question was whether that property qualified as a “premises” protected under the statute. Because the trial court ruled the golf course was not a protected premises and the city was therefore not immune, the immunity issue was eliminated from trial. Thus, the ruling was an “intermediate order[ ] involving the merits of the action and necessarily affecting the judgment” under review. A.R.S. § 12–2102(A); see also Pepsi–Cola Metro. Bottling Co. v. Romley, 118 Ariz. 565, 568, 578 P.2d 994, 997 (App.1978) (§ 12–2102 proper basis for court of appeals' review). Our consideration of the court's summary-judgment ruling is therefore appropriate as part of our review of the final judgment.1

¶ 6 Summary judgment is proper only when “ ‘there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law.’ ” Villa de Jardines Ass'n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 5, 253 P.3d 288, 292 (App.2011), quoting Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 19, 158 P.3d 232, 239 (App.2007). Summary judgment is disfavored in negligence actions but may be granted “when there is no dispute as to any material facts, only one inference can be drawn from those facts, and the moving party is entitled to judgment as a matter of law.” McLeod ex rel. Smith v. Newcomer, 163 Ariz. 6, 8, 785 P.2d 575, 577 (App.1989). We review de novo a trial court's summary-judgment ruling. Hourani, 211 Ariz. 427, ¶ 4, 122 P.3d at 9.2

¶ 7 The applicability of the recreational-use immunity statute is a question of law, subject to de novo review. Andresano v. Cnty. of Pima, 213 Ariz. 65, ¶ 6, 138 P.3d 1192, 1194 (App.2006); see also Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App.1996) (issues of statutory interpretation reviewed de novo ). In analyzing the statute's applicability, we are not bound by a trial court's conclusions of law. See [231 Ariz. 587]

[299 P.3d 1285]

Gary Outdoor Adver. Co. v. Sun Lodge, Inc., 133 Ariz. 240, 242, 650 P.2d 1222, 1224 (1982). Our primary goal in interpreting a statute is to give effect to the legislature's intent, and the language of a statute is the most reliable evidence of that intent. Walker v. City of Scottsdale, 163 Ariz. 206, 208–09, 786 P.2d 1057, 1059–60 (App.1989). Because the statute limits common-law liability, however, we must strictly construe its language “ ‘to avoid any overbroad statutory interpretation that would give unintended immunity and take away a right of action.’ ” Andresano, 213 Ariz. 65, ¶ 6, 138 P.3d at 1194,quoting Armenta v. City of Casa Grande, 205 Ariz. 367, ¶ 5, 71 P.3d 359, 361 (App.2003); see also Walker, 163 Ariz. at 211, 786 P.2d at 1062;Schilling v. Embree, 118 Ariz. 236, 239, 575 P.2d 1262, 1265 (App.1977). For the recreational-use immunity statute to apply, the property on which the injury occurred must qualify as a “premises” as described in the statute, and MacKinney must have been a recreational user of the property under the statute's terms. See§ 33–1551(A).

Premises

¶ 8 The city first contends the trial court erred in concluding a golf course is not a “premises” that implicates recreational-use immunity. Section 33–1551(A) (1998), the version of the statute in force when MacKinney was injured,3 provides:

A public or private owner, easement holder, lessee or occupant of premises is not liable to a recreational or educational user except upon a showing that the owner, easement holder, lessee or occupant was guilty of wilful, malicious or grossly negligent conduct which was a direct cause of the injury to the recreational or educational user.
MacKinney alleged only that the city was negligent, not that its conduct was wilful, malicious, or grossly negligent; thus, if the elements of § 33–1551 are met, it provides the city with immunity from his lawsuit.
See Andresano, 213 Ariz. 65, ¶ 7, 138 P.3d at 1194.Section 33–1551(C)(3) (1998) defines “premises” to include

agricultural, range, open space, park, flood control, mining, forest or railroad lands, and any other similar lands, wherever located, which are available to a recreational or educational user, including, but not limited to, paved or unpaved multi-use trails and special purpose roads or trails not open to automotive use by the public and any building, improvement, fixture, water conveyance system, body of water, channel, canal or lateral, road, trail or structure on such lands.

As MacKinney points out, neither former § 33–1551 nor the current version expressly includes a golf course within the definition of premises.

¶ 9 The city argues a golf course is similar to a park and therefore is included in the definition of “premises” through the phrase “other similar lands.” See§ 33–1551(C)(3) (1998) (“premises” includes park lands “and any other similar lands”). The city points out that when the legislature expanded the definition of “premises” to include park lands, see 1993 Ariz. Sess. Laws, ch. 90, § 25, case law already had established for various purposes that golf courses are parks or are similar to parks. See Moore v. Valley Garden Ctr., 66 Ariz. 209, 212–13, 185 P.2d 998, 1000 (1947) (golf courses “constitute a recreational use of land for park purposes”); see also City of Phoenix v. Moore, 57 Ariz. 350, 357–59, 113 P.2d 935, 938–39 (1941) (noting parks, playgrounds, swimming pools, and golf courses are “recreational facilities”); Maricopa Cnty. v. Maricopa Cnty. Mun. Water Conserv. Dist. No. 1, 171 Ariz. 325, 329, 830 P.2d 846, 850 (App.1991) (analogizing public parks, swimming pools, and golf courses). Because the legislature is presumed to be aware of existing law when it enacts or modifies a statute, State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990), we [231 Ariz. 588]

[299 P.3d 1286]

agree that the comparisons in these decisions support the city's argument that the legislature intended golf courses to be included in “other similar lands.”

¶ 10 We find additional evidence of the legislature's intent to include golf courses within the definition of “premises” in the evolution of § 33–1551. In Walker, relied upon by MacKinney, this court held that a previous version of the statute did not provide recreational immunity against liability for injuries suffered by a bicyclist...

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  • Garcia v. United States, CV-20-00220-PHX-MTL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 18 Marzo 2021
    ...have noted that "[t]he legislature has not defined ‘nominal’ for purposes of the recreational-use statute." MacKinney v. City of Tucson , 231 Ariz. 584, 591, 299 P.3d 1282 (App. 2013). These courts look to dictionaries to aid their interpretation, which define "nominal" as "insignificantly ......
  • Garcia v. United States, CV-20-00220-PHX-MTL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 18 Marzo 2021
    ...have noted that "[t]he legislature has not defined 'nominal' for purposes of the recreational-use statute." MacKinney v. City of Tucson, 231 Ariz. 584, 591 (App. 2013). These courts look to dictionaries to aid their interpretation, which define "nominal" as "insignificantly small" or "trifl......
  • Normandin v. Encanto Adventures LLC, 1 CA-CV 17-0373
    • United States
    • Court of Appeals of Arizona
    • 26 Junio 2018
    ...material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a) ; MacKinney v. City of Tucson , 231 Ariz. 584, 586, ¶ 6, 299 P.3d 1282, 1284 (App. 2013). On 425 P.3d 247appeal from the grant of summary judgment, we view all facts and reasonable inferen......
  • Gallagher v. Tucson Unified Sch. Dist., 2 CA–CV 2014–0124.
    • United States
    • Court of Appeals of Arizona
    • 12 Mayo 2015
    ...to the legislature's intent, and the language of a statute is the most reliable evidence of that intent.” MacKinney v. City of Tucson, 231 Ariz. 584, ¶ 7, 299 P.3d 1282, 1285 (App.2013). Accordingly, if the language is clear and unambiguous, we apply it as written. Hourani v. Benson Hosp., ......
  • Request a trial to view additional results
10 cases
  • Garcia v. United States, CV-20-00220-PHX-MTL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 18 Marzo 2021
    ...have noted that "[t]he legislature has not defined ‘nominal’ for purposes of the recreational-use statute." MacKinney v. City of Tucson , 231 Ariz. 584, 591, 299 P.3d 1282 (App. 2013). These courts look to dictionaries to aid their interpretation, which define "nominal" as "insignificantly ......
  • Garcia v. United States, No. CV-20-00220-PHX-MTL
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Arizona
    • 18 Marzo 2021
    ...have noted that "[t]he legislature has not defined 'nominal' for purposes of the recreational-use statute." MacKinney v. City of Tucson, 231 Ariz. 584, 591 (App. 2013). These courts look to dictionaries to aid their interpretation, which define "nominal" as "insignificantly small" or "trifl......
  • Normandin v. Encanto Adventures LLC, No. 1 CA-CV 17-0373
    • United States
    • Court of Appeals of Arizona
    • 26 Junio 2018
    ...material fact and the moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P. 56(a) ; MacKinney v. City of Tucson , 231 Ariz. 584, 586, ¶ 6, 299 P.3d 1282, 1284 (App. 2013). On 425 P.3d 247appeal from the grant of summary judgment, we view all facts and reasonable inferen......
  • Gallagher v. Tucson Unified Sch. Dist., No. 2 CA–CV 2014–0124.
    • United States
    • Court of Appeals of Arizona
    • 12 Mayo 2015
    ...to the legislature's intent, and the language of a statute is the most reliable evidence of that intent.” MacKinney v. City of Tucson, 231 Ariz. 584, ¶ 7, 299 P.3d 1282, 1285 (App.2013). Accordingly, if the language is clear and unambiguous, we apply it as written. Hourani v. Benson Hosp., ......
  • Request a trial to view additional results

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