Smith v. Arizona Bd. of Regents

• Decision Date: 08 July 1999
• Docket Number: No. 1 CA-CV 98-0627.,1 CA-CV 98-0627.
• Citation: 986 P.2d 247,195 Ariz. 214
• Parties: Todd R. SMITH, a single man, Plaintiff-Appellant, v. ARIZONA BOARD OF REGENTS, Arizona State University and Associated Students of Arizona State University; subdivisions of the State of Arizona, Defendants-Appellees.
• Court: Arizona Court of Appeals

986 P.2d 247

195 Ariz. 214

Todd R. SMITH, a single man, Plaintiff-Appellant, v. ARIZONA BOARD OF REGENTS, Arizona State University and Associated Students of Arizona State University; subdivisions of the State of Arizona, Defendants-Appellees.

No. -0627.

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

July 8, 1999.

Reconsideration Denied August 17, 1999.

M. Wayne Lewis, Chandler, Attorney for Appellant.

Jennings, Haug & Cunningham, L.L.P. by Larry J. Crown, Jack R. Cunningham, Phoenix, Attorneys for Appellees.

OPINION

GERBER, Judge.

¶ 1 We consider whether Arizona's recreational use statute, Arizona Revised Statute Annotated ("A.R.S.") section 33-1551, shields appellees from liability for injuries suffered by appellant while using a carnival-type apparatus temporarily placed on appellees' property. We conclude that this statute does not provide tort immunity in such circumstances, and we therefore reverse the summary judgment entered in favor of appellees and remand for further proceedings.

FACTS AND PROCEDURAL HISTORY

¶ 2 In the spring of 1997, appellant Todd R. Smith ("Smith") was a student at Arizona State University ("ASU") and a member of the Associated Students of ASU ("ASASU"). ASASU sponsored an event called the "Mardi Gras" on an open area of campus near the ASU library. No admission fee was required to participate in the event, which included several carnival-type activities.

¶ 3 One of the activities offered at the "Mardi Gras" was the "Trampoline Thing," a jumping apparatus consisting of a combination of a trampoline and bungee cord. While doing somersaults and maneuvers on the "Trampoline Thing," Smith collided with the trampoline frame and was seriously injured.

¶ 4 Smith sued the Arizona Board of Regents, ASU, and ASASU (collectively "ASU") as well as the entities that contracted with ASASU to provide the "Trampoline Thing" for the event. He alleged, in part, that appellees negligently failed to (1) adequately maintain the apparatus, (2) warn users of its known dangers, and (3) properly supervise its use. He also alleged that the ASU appellees, as owners and occupiers of the premises where his injuries occurred, were liable for permitting the inherently dangerous activity and for negligently supervising the activities of the other defendants.

¶ 5 ASU moved for summary judgment on the basis that it was immune from liability under Arizona's recreational use statute, A.R.S. section 33-1551. It argued that, as a public land owner, it was not liable to Smith, a recreational user of the property, unless it was guilty of willful, malicious, or grossly negligent conduct that directly caused Smith's injury. ASU asserted that because it held its property open to the public for a recreational event without an admission fee, the statute protected it from liability.

¶ 6 In response, Smith argued that he paid for admission to the event by paying tuition and fees from which ASASU received funds for student activities such as the "Mardi Gras." He further maintained that ASU's use of its campus for the "Mardi Gras" event and providing the "Trampoline Thing" for the use of participants did not constitute recreational uses for statutory immunity. He argued that the ASU property as used for the event did not fall within the statutory definition of "premises" nor was he an "educational user" or "recreational user" intended by the statute. He also asserted that if the statute applied, it was unconstitutional.

¶ 7 The trial court granted ASU's motion for summary judgment. It reasoned that Smith was a recreational user of the property and found no disputed factual issues showing that ASU was guilty of willful, malicious, or grossly negligent conduct. Smith timely appealed from the judgment entered in favor of ASU.

DISCUSSION

¶ 8 Arizona's recreational use statute, A.R.S. section 33-1551, was enacted in 1983 and amended in 1993, 1994, and 1998. See Act of Apr. 8, 1983, ch. 82, 1983 Ariz. Sess. Laws 259; Act of Apr. 13, 1993, ch. 90, § 25, 1993 Ariz. Sess. Laws 261; Act of Apr. 14, 1994, ch. 113, § 7, 1994 Ariz. Sess. Laws 308; Act of Apr. 24, 1998, ch. 22, 1998 Ariz. Sess. Laws 260. The version of A.R.S. section 33-1551 in effect in 1997 when Smith's accident occurred read in relevant part:

A. 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.

* * * *

C. As used in this section:

1. "Educational user" means a person to whom permission has been granted or implied without the payment of an admission fee or other consideration to enter upon premises to participate in an educational program, including but not limited to, the viewing of historical, natural, archaeological or scientific sights.

* * * *

3. "Premises" means 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.

4. "Recreational user" means 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. The purchase of a state hunting, trapping or fishing license is not the payment of an admission fee or other consideration as provided in this section.

¶ 9 Whether the recreational use statute applies here is a question of law that this court reviews de novo. See Stramka v. Salt River Recreation, Inc., 179 Ariz. 283, 285, 877 P.2d 1339, 1341 (App.1994). Because section 33-1551 limits common-law liability, we must construe it strictly to avoid any overbroad statutory interpretation that would give unintended immunity and take away a right of action. See Ward v. State, 181 Ariz. 359, 362, 890 P.2d 1144, 1147 (1995); Hayes v. Continental Ins. Co., 178 Ariz. 264, 273, 872 P.2d 668, 677 (1994). When interpreting a statute, we attempt to give effect to the legislative intent. See Calvert v. Farmers Ins. Co. of Arizona, 144 Ariz. 291, 294, 697 P.2d 684, 687 (1985). In determining the legislature's intent, we look to the policy behind the statute as well as the words, context, subject matter, and consequences of the statute.

¶ 10 The legislative history of Arizona's recreational use statute indicates that the act "was designed to encourage landowners to open certain lands to recreational users by limiting liability for injuries to those users." Bledsoe v. Goodfarb, 170 Ariz. 256, 259, 823 P.2d 1264, 1267 (1991). Representative Jim Ratliff, a sponsor of the legislation, stated during a committee meeting that the proposed statute "would promote the use of vast areas of land not now being used for recreational purposes." Recreation Property: Minutes of Hearing on H.B.2026 Before the House Judiciary Comm., 36th Leg., 1st Reg. Sess. 5 (Feb. 14, 1983), cited in Ward, 181 Ariz. at 362,890 P.2d at 1147; Bledsoe, 170 Ariz. at 259 n. 2,823 P.2d at 1267 n. 2; Stramka, 179 Ariz. at 286,877 P.2d at 1342.

¶ 11 Those minutes also indicate that the language of the legislation derives from the model act proposed by the Council of State Governments in 1965. See Recreation Property: Minutes of Hearing on H.B.2026 Before the House Judiciary Comm., 36th Leg., 1st Reg. Sess. 3 (Feb. 14, 1983) (statement of Assistant Attorney General Joseph Clifford), cited in Bledsoe, 170 Ariz. at 260 n. 4, 823 P.2d at 1268 n. 4. The purpose of the model act is "to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." Ward, 181 Ariz. at 362, 890 P.2d at 1147, quoting Suggested State Legislation on Public Recreation on Private Lands § 1, in 24 Council of State Governments, Suggested State Legislation 150, 150 (1965).

¶ 12 In light of this intent and considering the express language of A.R.S. section 33-1551, we nonetheless conclude that under the circumstances of this case, appellees are not protected from liability. Because we reach this conclusion based on an examination of what constitutes "premises" and "recreational user" in the circumstances presented here, we do not reach Smith's argument that his tuition and fee payments constituted consideration for participation in the "Mardi Gras" event.

¶ 13 Smith argues that the ASU campus, and particularly the area of the "Mardi Gras," is not the type of land defined in section 33-1551(C)(3) as "premises." He notes that the listed premises are lands characteristically rural or semi-rural and not associated with urban uses such as a college campus or carnival event. ASU responds that "Hayden Park," an open, grassy area on the campus, is precisely the type of real property included in the broad statutory definition of "premises." It points out that the statute applies to open spaces, parks, and other similarly situated lands wherever located.

¶ 14 We assume, without deciding, that ASU is correct in its assertion that grassy, park-like areas on the campus fall within the statute. However, Smith was not injured by a condition of the land but by a piece of equipment stationed temporarily on the campus premises.

¶ 15 In the large number of cases interpreting state recreation use statutes nationwide, we have been unable to find a case with a situation in which the protection of such a statute was claimed when the injury...