Walker v. City of Scottsdale

Decision Date24 November 1989
Docket NumberCA-CV,No. 1,1
Citation786 P.2d 1057,163 Ariz. 206
PartiesMyrna N. WALKER, Plaintiff-Appellant, v. CITY OF SCOTTSDALE, a political subdivision of the State of Arizona, and the McCormick Ranch Property Owners' Association, Defendants-Appellees. 88-256.
CourtArizona Court of Appeals

NELSON, Judge.

Myrna Walker appeals from the trial court's dismissal on summary judgment of her complaint against the City of Scottsdale (City) and the McCormick Ranch Property Owners' Association (Association). The issue on appeal is whether the trial court properly construed A.R.S. § 33-1551, Arizona's recreational use statute, to limit the defendants' duty to Walker, thereby precluding her recovery.


Walker was injured in a fall which occurred while she was riding her bicycle along a bicycle path at 85th Street and Hayden Road in Scottsdale, Arizona. The property on which the bicycle path is located is a greenbelt area within McCormick Ranch, a planned, residential community in Scottsdale, Arizona. The property was owned by the Association. The City of Scottsdale owned an easement on the McCormick Ranch property for the bicycle path, which it constructed and maintained. Walker filed suit against the Association and the City for her injuries, alleging that her fall was caused by the negligence of the defendants in the design, construction, and maintenance of the bike path.

Both defendants moved for summary judgment, arguing that they owed no duty of care to Walker pursuant to A.R.S. § 33-1551. The trial court agreed and granted summary judgment for both defendants. After the trial court denied Walker's motion for reconsideration or new trial, Walker appealed from the judgment and the order denying her motion. Walker argues that A.R.S. § 33-1551 cannot be read to preclude her suit under the facts presented in this case.


Arizona Revised Statutes § 33-1551, enacted in 1983, is a statute granting immunity from suit, with limited exceptions, to owners, lessees or occupants of certain types of property for injuries to persons who have made certain recreational uses of the property without paying an admission fee for such use. Subsection (A) of the statute provides that:

A. An owner, lessee or occupant of premises does not:

1. Owe any duty to a recreational user to keep the premises safe for such use.

2. Extend any assurance to a recreational user through the act of giving permission to enter the premises that the premises are safe for such use.

3. Incur liability for an injury to persons or property caused by any act of a recreational user.

Subsection (B) defines the statute's key words, "premises" and "recreational user," as follows:

B. As used in this section:

1. "Premises" means agricultural, range, mining or forest lands, and any other similar lands which by agreement are made available to a recreational user, and any building or structure on such lands.

2. "Recreational 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 hunt, fish, trap, camp, hike, ride, swim or engage in similar recreational 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.

Subsection (C) lists the limited circumstances in which liability is not precluded:

C. This section does not limit the liability which otherwise exists for maintaining an attractive nuisance, or for wilful or malicious failure to guard or warn against a dangerous condition, use or activity.

Statutes of this general type are frequently referred to as "recreational use" statutes.

In this appeal, we must construe Arizona's recreational use statute to determine whether it applies under the facts of this case to bar Walker's suit. The narrow question presented is whether A.R.S. § 33-1551 limits the liability of those with an interest in a maintained bike path running through a greenbelt area of an urban, residential neighborhood in a suit brought by a bicyclist injured on the bike path. The trial court concluded that the limitations in the statute were applicable in this situation.

In reviewing the trial court's decision, this court is not bound by the legal conclusions reached by the trial court. Gary Outdoor Advertising Co. v. Sun Lodge, Inc., 133 Ariz. 240, 650 P.2d 1222 (1982); Cecil Lawter Real Estate School, Inc. v. Town and Country Shopping Center Co., 143 Ariz. 527, 694 P.2d 815 (App.1984). An issue of statutory interpretation is one of law, and hence this court is free to draw its own conclusions regarding it. Arizona State Bd. of Accountancy v. Keebler, 115 Ariz. 239, 564 P.2d 928 (App.1977). Arizona's appellate courts have not previously been called upon to construe and apply Arizona's recreational use statute.

No contention is made in this case that Walker's claim might fall within the exceptions to the immunity provided in subsection (C) of the statute. Walker does not charge the defendants with acting wilfully or maliciously or with maintaining an attractive nuisance. Walker's contention is that the facts existing in this case cause it to fall outside the statute. Walker's primary argument is that the property on which her injury occurred was not "premises" as that term is defined in subsection (B). Secondarily, she argues that she is not the type of "recreational user" to which the statute applies. She does not deny that she was using the property without paying a fee and that at least part of her purpose for riding on the bike path was recreational. Even so, she maintains that the riding of her bicycle was not the type of "riding" that the legislature meant to include within the statute.

We turn first to the question of whether the greenbelt area of McCormick Ranch within which the accident occurred falls within the statutory definition of "premises." The cardinal rule of statutory interpretation is to determine and effectuate the legislative intent behind the statute. Calvert v. Farmers Ins. Co., 144 Ariz. 291, 697 P.2d 684 (1985); Collins v. Stockwell, 137 Ariz. 416, 671 P.2d 394 (1983). This particular statute contains no statement of legislative purpose. Moreover, there is scant legislative history to shed light on whether the legislature intended to encompass property of this nature within the statute. The only information of any relevance which we glean from the legislative history is that the bill was intended to promote the use of "vast areas of land not now being used for recreational purposes" 1 and that much of the statutory language is taken from a model act which was proposed by the Council of State Governments in 1965. 2

We recognize that the impetus for the Council of State Governments' proposal of the model act was the growing awareness of the need for additional recreational areas to serve the general public. Suggested State Legislation, Vol. XXIV, Public Recreation on Private Lands: Limitation on Liability, pp. 150-52 (1965). It was felt that "in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them." Id. at 150. The stated purpose of the model act is "to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner." Id.

Unfortunately, this information does not carry us far in determining whether the McCormick Ranch greenbelt area is encompassed within Arizona's recreational use statute.

In order to determine the legislature's intention as to what property is encompassed within the statute, we must look to the language used in the statute. The language of a statute is the most reliable evidence of its intent. State ex rel. Corbin v. Pickrell, 136 Ariz. 589, 667 P.2d 1304 (1983). It is clear from the language used in the statute that the legislature sought to place some limitations on the types of property falling within the immunity provided by the statute. Instead of granting immunity to an owner, lessee, or occupant of "any" premises, the legislature restricted the meaning of "premises" to "agricultural, range, mining or forest lands, and any other similar lands." Where 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. Serna v. Statewide Contractors, Inc., 6 Ariz.App. 12, 429 P.2d 504 (1967).

The defendants apparently concede that the property where plaintiff's injury occurred is not "agricultural, range, mining or forest lands." They argue, though, that the property falls within the phrase "any other similar lands." They argue that a reading of the entire statute leads to the conclusion that in using the phrase "any other similar lands which by agreement are made available to a recreational user," the legislature meant to encompass any land made available by agreement to persons performing the activities listed in subsection (B)(2). They emphasize that the statute contains no express language limiting it to rural or semi-rural properties, and they urge us to find no implication of such limitation. They cite numerous cases in which courts have found recreational use statutes in other states to...

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