Normandin v. Encanto Adventures LLC

• Decision Date: 26 June 2018
• Docket Number: No. 1 CA-CV 17-0373,1 CA-CV 17-0373
• Citation: 425 P.3d 243
• Parties: Marcie NORMANDIN, Plaintiff/Appellant, v. ENCANTO ADVENTURES LLC, et al., Defendants/Appellees.
• Court: Arizona Court of Appeals

425 P.3d 243

Marcie NORMANDIN, Plaintiff/Appellant,

v.ENCANTO ADVENTURES LLC, et al., Defendants/Appellees.

No. 1 CA-CV 17-0373

Court of Appeals of Arizona, Division 1.

FILED June 26, 2018

The McClellan Law Firm, P.L.C., Phoenix, By Matthew L. McClellan, Ahwatukee Legal Office, P.C., Phoenix, By David L. Abney (argued), Co–Counsel for Plaintiff/Appellant

Moyes Sellers & Hendricks, Phoenix, By Joseph L. Brownlee (argued), Joshua T. Greer, Counsel for Defendants/Appellees

Judge Paul J. McMurdie delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Jennifer B. Campbell joined.

McMURDIE, Judge:

¶ 1 Marcie Normandin appeals from the superior court’s grant of summary judgment in favor of Encanto Adventures, LLC, d/b/a Enchanted Island Amusement Park ("Encanto") and the City of Phoenix ("City"), which resolved Normandin’s premises-liability negligence claim. We affirm the superior court’s ruling and hold that: (1) Encanto was a "manager" within the meaning of Arizona Revised Statutes ("A.R.S.") section 33–1551 because Encanto administered and directed the maintenance of the area in question pursuant to an agreement with the City; (2) Normandin was a recreational user under § 33–1551(C)(5) because no part of the fee she paid to Encanto was paid to enter the area of the park where the injury occurred; and (3) the statute is constitutional as applied to Encanto.

FACTS AND PROCEDURAL BACKGROUND

¶ 2 In 1991, the City and Encanto’s predecessor executed an agreement to establish a children’s amusement park within Encanto Park ("Park") in "an area ... known as Picnic Island" ("Concession Premises"). In the agreement, the City licensed certain exclusive rights to construct, maintain, and operate children’s rides in a fenced-in area of the Concession Premises ("Enchanted Island"), which also allowed Encanto’s predecessor to use the remainder of the Concession Premises ("Agreement"). Encanto’s owner, Kraig Lyon, testified that for 25 years he personally maintained the Concession Premises, including an area neighboring Enchanted Island where piñata games were often played ("piñata area"). Normandin acknowledges that Encanto regularly patrolled, maintained, inspected, prepared, and groomed the piñata area.

¶ 3 Normandin paid $287 to Encanto for her one-year-old daughter’s birthday party ("Pete’s Package") to be held at the Enchanted Island. Pete’s Package included "thirty all day ride wristbands ..., ten tables ... [,] a private shaded area (by trees only) for 4 hours, [a special appearance by] Pete the Parrot, [and a] T–Shirt for the Birthday Boy/Girl." Pete’s Package explicitly excluded a piñata, and provided no part of Normandin’s payment for the package would have been refunded had Normandin decided not to bring her own piñata or declined to participate in a piñata activity.

¶ 4 Encanto allows its customers to bring a piñata and play the game during their birthday celebrations. However, Encanto requires that any piñata be broken outside of the fenced-in area of Enchanted Island. Encanto recommends customers use the piñata area near the birthday party venue, but outside of Enchanted Island. Normandin fell in the piñata area while assisting her daughter in breaking a piñata. Normandin broke her right ankle and injured her right arm. She alleged she fell because she stepped into a sprinkler-head divot or depression covered by grass in the piñata area.

¶ 5 In her complaint, Normandin pled 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 immunity provided by A.R.S. § 33–1551(A). The motion was granted, and Normandin timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) and –2101(A)(1).

DISCUSSION

¶ 6 Normandin argues the superior court erred by granting summary judgment because: (1) Encanto was not an entity protected by § 33–1551(A), whether as an "owner, ... lessee, ... manager or occupant" of the premises; (2) Normandin either paid more than a nominal fee to Encanto, which excluded her from being a recreational user of the Park under § 33–1551, or the nominality of the fee paid is a question of fact to be resolved by a jury; (3) for private persons and private corporations, § 33–1551 violates the Anti–Abrogation Clause, Article 18, Section 6, of the Arizona Constitution ; (4) the statute violates the Equal Privileges-and-Immunities Clause, Article 2, Section 13, of the Arizona Constitution ; and (5) the statute is an unconstitutional special law.

¶ 7 Summary judgment is proper if "there is no genuine dispute as to any 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 appeal from the grant of summary judgment, we view all facts and reasonable inferences in the light most favorable to Normandin, see Andresano v. County of Pima , 213 Ariz. 65, 66, ¶ 2, 138 P.3d 1192, 1193 (App. 2006), and review the superior court’s decision de novo , MacKinney , 231 Ariz. at 586, ¶ 6, 299 P.3d at 1284. Whether § 33–1551 applies and whether it is constitutional are questions of law, subject to de novo review. Andresano , 213 Ariz. at 67, ¶ 6, 138 P.3d at 1194 ; see also Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49 (App. 1996) (issues of statutory interpretation are reviewed de novo ), superseded by statute on other grounds as recognized in MacKinney , 231 Ariz. at 590, ¶ 18, n.5, 299 P.3d at 1288.

¶ 8 Because we "decide cases on nonconstitutional grounds if possible," Ramirez v. Health Partners of S. Ariz. , 193 Ariz. 325, 328, ¶ 10, 972 P.2d 658, 661 (App. 1998), we will first address Normandin’s statutory arguments, see Herman v. City of Tucson , 197 Ariz. 430, 432, ¶ 7, 4 P.3d 973, 975 (App. 1999). "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." MacKinney , 231 Ariz. at 587, ¶ 7, 299 P.3d at 1285.

I. Section 33–1551 ’s Immunity Against Claims for Simple Negligence Applies to Both the City and Encanto.

¶ 9 "[I]n 1965, the Committee of Officials on Suggested State Legislation set forth a Model Act to encourage private landowners to open their land to the public for recreational purposes." Michael S. Carroll, Dan Connaughton & J.O. Spengler, Recreational User Statutes and Landowner Immunity: A Comparison of State Legislation , 17 J. of Legal Aspects of Sport 163, 164 (2007) (citing Council of State Governments, 1965). "Currently, all 50 states have recreational user statutes that limit the liability of landowners who open their lands to allow public recreational use for injuries sustained by persons using their land...." Id. at 169. Arizona adopted its version of the model act in 1983. See 1983 Ariz. Sess. Laws, ch. 82, § 1. The current version of the statute reads:

A public or private owner, easement holder, lessee, tenant, manager or occupant of premises is not liable to a recreational ... user except on a showing that the owner, easement holder, lessee, tenant, manager or occupant was guilty of wilful, malicious or grossly negligent conduct that was a direct cause of the injury to the recreational ... user.

A.R.S. § 33–1551(A).

¶ 10 Neither party disputes that Normandin’s injury occurred inside the Park. Likewise, the parties recognize that the Park qualifies as a premises covered by § 33–1551(C)(3)–(4) (" ‘Premises’ means ... park ... and any other similar lands, wherever located, that are available to a recreational ... user...."); see also MacKinney , 231 Ariz. at 589, ¶ 13, 299 P.3d at 1287 (a park "is a parcel of property kept for recreational use that is designed and maintained for the primary purpose of allowing users to engage in an undisputedly recreational activity"). Neither party disputes that the City owns the Park or that the statute provides immunity to the City if Normandin was a recreational user. Finally, neither party disputes Normandin was engaged in a recreational activity (hanging and breaking the piñata) when the injury occurred. See A.R.S. § 33–1551(A), (C)(5) (protected activity includes exercising or "other outdoor recreational pursuits"). Therefore, we must resolve whether Encanto’s activities were covered under § 33–1551 ; and, if so, whether Normandin was a recreational user under the statute.

A. Encanto Is Immune under Section 33–1551(A) as a "Manager" of the Piñata Area.

¶ 11 According to Normandin, Encanto does not qualify as an entity protected by the statute. Encanto claims that it was a "manager" of the Concession Premises under the statute because the Agreement required it to maintain not only the Enchanted Island, but also the picnic and piñata areas. Normandin argues that Encanto waived its right to claim manager status; and no evidence in the record demonstrates the City hired, retained, or appointed Encanto to manage the piñata area, and, therefore, Encanto’s work was, thus, "voluntary, self-interested acts of preparing the piñata premises for the benefit of its paying customers."

¶ 12 Although Encanto did not specifically argue manager status below, the superior court considered the issue of whether Encanto was an entity protected under § 33–1551 when ruling on the motion, and expressly found Encanto fell within the statute’s immunity. Contrary to Normandin’s argument, the issue has not been waived. Moreover, we have discretion to consider even a waived issue if it is an issue of law, such as an interpretation of a statute, see Searchtoppers.com, L.L.C. v. TrustCash LLC , 231 Ariz. 236, 238, ¶ 8, 293 P.3d 512, 514 (App. 2012), and its consideration "would dispose of an action on appeal and correctly explain the law," Evenstad v. State , 178 Ariz. 578, 582, 875 P.2d 811, 815 (App. 1993) ("[W]hen we are considering the interpretation and application of statutes, we do...