Warfield v. City of Tucson

• Decision Date: 12 February 2014
• Docket Number: No. 2 CA-CV 2013-0130,2 CA-CV 2013-0130
• Parties: ANNE WARFIELD, AN UNMARRIED WOMAN, Plaintiff/Appellant, v. CITY OF TUCSON, A MUNICIPAL CORPORATION OF THE STATE OF ARIZONA, Defendant/Appellee.
• Court: Arizona Court of Appeals

ANNE WARFIELD, AN UNMARRIED WOMAN, Plaintiff/Appellant, v. CITY OF TUCSON, A MUNICIPAL CORPORATION

OF THE STATE OF ARIZONA, Defendant/Appellee.

No. 2 CA-CV 2013-0130

ARIZONA COURT OF APPEALS DIVISION TWO

Filed February 12, 2014

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND

MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c); Ariz. R. Civ. App. P. 28(c).

Appeal from the Superior Court in Pima County

No. C20123445

The Honorable Kenneth Lee, Judge

AFFIRMED

COUNSEL

Hallinan Law Firm, Tucson

By Joane Hallinan and Nick Nogami

Counsel for Plaintiff/Appellant

Michael G. Rankin, City Attorney, Tucson

By Viola Romero-Wright and Michael W.L. McCrory,

Principal Assistant City Attorneys

Counsel for Defendant/Appellee

MEMORANDUM DECISION

Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.

HOWARD, Chief Judge:

¶1 Anne Warfield appeals from the trial court's grant of summary judgment in favor of the City of Tucson on her claim arising from injuries sustained during a fall at the Reid Park Zoo. On appeal, Warfield argues the court erred in granting summary judgment because the recreational use immunity statute, A.R.S. § 331551, on which the City relied, does not apply to this case, alleged violations of the International Building Code ("IBC") and Americans with Disability Act ("ADA") building codes preclude its application, and she presented sufficient evidence of the City's gross negligence to avoid summary judgment. Warfield also argues the court abused its discretion when it denied her motion to amend her complaint. Because we conclude that summary judgment was appropriate and that the court did not abuse its discretion in denying Warfield's motion, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to the party opposing summary judgment. Keonjian v. Olcott, 216 Ariz. 563, ¶ 2, 169 P.3d 927, 928 (App. 2007). In July 2011, Anne Warfield and her son visited the Zoo. As Warfield descended a staircase into the lower level of the polar bear viewing exhibit, she slipped on water that was flowing slowly "over parts of the steps," fell, and suffered multiple injuries. After Warfield's accident, Zoo employees determined the water came from a leak that occurred when a shrubbery root ruptured a nearby buried irrigation pipe.

¶3 Warfield sued the City for her injuries, alleging negligence, gross negligence, and premises liability. After it answered, the City moved for summary judgment, contending it was immune from liability pursuant to the recreational useimmunity statute, A.R.S. § 33-1551. The trial court granted the City's motion, finding that the recreational use immunity statute applied and that Warfield had not shown the City was grossly negligent. After considering the effect of the ADA building codes and the IBC, the court also denied Warfield's motion to amend her complaint to include a claim for negligence per se based on those codes, finding such an amendment would be futile. We have jurisdiction over Warfield's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 12-2101(A)(1).

Motion for Summary Judgment

¶4 Warfield contends the trial court erred in granting summary judgment to the City based on the recreational use immunity statute because, first, the statute does not apply to this case, second, the stairwell on which she fell violated the IBC and ADA building codes and, third, she provided sufficient evidence of the City's gross negligence. On appeal from summary judgment, we determine de novo whether there are any genuine issues of material fact and whether the trial court correctly applied the law. See Dayka & Hackett, LLC v. Del Monte Fresh Produce N.A., 228 Ariz. 533, ¶ 6, 269 P.3d 709, 711-12 (App. 2012). The court should grant summary judgment when "the moving party shows that 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). A mere scintilla of evidence or a slight doubt as to whether a material factual dispute exists is not sufficient to overcome summary judgment. Orme Sch. v. Reeves, 166 Ariz. 301, 309, 802 P.2d 1000, 1008 (1990).

¶5 Warfield appears to argue that the trial court erred in finding the recreational use immunity statute applies to this case. That statute states that the public or private owner of "premises" is not liable to a "recreational or educational user" unless the owner directly causes injury to the user through "wilful, malicious or grossly negligent conduct." A.R.S. § 33-1551(A). "Premises" includes "park[s], open space[s] . . . and any other similar lands, wherever located, that are available to a recreational or educational user." § 33-1551(C)(4). An "educational" or "recreational user" is "a person to whom permission has been granted or implied without the payment of an admission fee or any other consideration to enterpremises to participate in an educational program, including but not limited to, the viewing of . . . natural . . . sights . . . [or] to exercise . . . or engage in other outdoor recreational pursuits." § 33-1551(C)(1), (5). Additionally, a "nominal fee . . . [used] to offset the cost of providing the . . . premises and associated services does not constitute an admission fee." § 33-1551(C)(1), (5).

¶6 Here, Warfield concedes she would be considered either a recreational or educational user under the statute. The admission fee paid by visitors like Warfield, along with other generated income by the Zoo, accounts for approximately fifty to sixty percent of the Zoo's operating costs, while the remainder is subsidized by the City. Therefore, because the Zoo is available to both "recreational" and "educational users," and the admission fee is only a "nominal fee" used to offset operating costs, the Zoo is immune from liability by reason of the recreational use statute absent a showing of "wilful, malicious or grossly negligent conduct." See § 33-1551(A).

Building Code Violations

¶7 Warfield next argues the immunity statute should not apply because the stairway on which she fell violated both ADA building codes and the 2003 IBC.¹ Warfield contends that she need not demonstrate gross negligence to overcome the immunity because the violations themselves defeat the immunity.

¶8 But the immunity from liability provided to recreational use land owners can, by the plain language of the statute, only be overcome upon a showing of "wilful, malicious or grossly negligent conduct." § 33-1551(A). "'When the plain text of a statute is clear and unambiguous there is no need to resort to other methods of statutory interpretation to determine the legislature's intent because its intent is readily discernable from the face of the statute.'" Estate of Braden ex rel. Gabaldon v. State, 228 Ariz. 323, ¶ 8, 266 P.3d 349, 351 (2011), quoting State v. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243(2003). Had the legislature intended land owners to be subject to liability for building code violations, in addition to "wilful, malicious or grossly negligent conduct," we presume it would have said so. See Padilla v. Indus. Comm'n, 113 Ariz. 104, 106, 546 P.2d 1135, 1137 (1976).

¶9 Warfield fails to cite to any legal authority supporting her position that the immunity is overcome by the existence of ADA building code or IBC violations. Rather, the cases she relies on deal with the qualified immunity of government officials, the immunity exceptions of the Federal Tort Claims Act, and the government's duty to conduct safety inspections for construction projects. See Hope v. Pelzer, 536 U.S. 730, 739-42 (2002) (qualified immunity); Cousins v. Lockyer, 568 F.3d 1063, 1069 (9th Cir. 2009) (same); Faber v. United States, 56 F.3d 1122, 1124-25 (9th Cir. 1995) (Federal Torts Claim Act); Daggett v. County of Maricopa, 160 Ariz. 80, 83-84, 770 P.2d 384, 387-88 (App. 1989) (government's standard of care when conducting safety inspections). None of these cases address the statutorily created immunity, absent "wilful, malicious or grossly negligent conduct," § 33-1551, for land owners who open their land for recreational and educational purposes. And Warfield does not attempt to argue the principles underlying those cases are analogous to the situation here. Thus, the cases cited by Warfield do not support her argument.

¶10 Warfield also attempts to argue the ADA preempts the recreational use immunity statute. Warfield reasons that because the ADA provides greater protections to individuals with disabilities than the recreational use immunity statute does, it necessarily preempts § 33-1551. However, Warfield failed to raise this argument to the trial court, and we do not consider arguments raised for the first time on appeal. See Englert v. Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768-69 (App. 2000). Additionally, Warfield did not provide a transcript of the hearing on the motion for summary judgment, and we will not presume that she raised her preemption argument during oral argument. See Ramsey v. Yavapai Family Advocacy Ctr., 225 Ariz. 132, ¶ 20, 235 P.3d 285, 291 (App. 2010); see also Ariz. R. Civ. App. P. 11(b)(1) (appellant responsible for providing all relevant transcripts).

Gross Negligence

¶11 Warfield next contends the trial court erred in granting summary judgment to the City because she presented sufficient evidence of the City's gross negligence. See § 33-1551(A). The recreational use immunity statute defines "[g]rossly negligent" as "a knowing or reckless indifference to the health and safety of others." § 33-1551(C)(2). "'A person is recklessly indifferent if he or she knows, or a reasonable person in his or her position ought to know: (1) that his action or inaction creates an unreasonable risk of harm; and (2) the risk is so great that it is highly probable that harm will result.'" Armenta v. City of Casa Grande, 205 Ariz. 367, ¶ 20, 71 P.3d 359, 364-65 (App. ...