Normandin v. Encanto Adventures LLC – 6/26/2018

July 6, 2018

Arizona Court of Appeals Division One upholds the constitutionality of Arizona’s recreational user statute, which limits a landowner’s liability to gross negligence.

An amusement company contracted with Phoenix to operate an amusement park inside of a city park.  The company agreed to maintain an entire island within the park including the area outside of its fenced-in amusement park.  A family paid the company for a birthday party package.  That package did not include a piñata.  The amusement company required that any piñata activity be held outside of its fenced-in area.  The family chose to have a piñata in the unfenced area of the island that was maintained by the amusement company.  The mother fell and was injured in the piñata area.  She sued the company and Phoenix under a simple-negligence, premises-liability theory.

The trial court granted summary judgment based on Arizona’s recreational user statute, A.R.S. § 33-1551.  Recreational user statutes are designed to encourage landowners to allow public use of their premises by limiting liability.  Arizona’s statute provides that an owner or “manager” of premises is only liable to a “recreational user” for “wilful, malicious or grossly negligent conduct that was a direct cause of the injury.”  A.R.S. § 33-1551(A).  A recreational user is someone who paid no more than a “nominal fee” to enter or travel across the premises.  

The Court of Appeals affirmed summary judgment.  The amusement company was a manager of the area it maintained outside of its fence.  The mother was a recreational user while she was in the piñata area because no portion of the party fee was attributable to her use of the piñata area.

The Court of Appeals also rejected the mother’s constitutional challenges to the statute.  As applied to the amusement company, the statute does not violate the anti-abrogation clause of the Arizona Constitution.  There was no common law right to bring a simple negligence claim against a municipality.  The amusement company was operating as the city’s agent.  Under these circumstances the statute did not abrogate any right of action that existed at the time the Arizona Constitution was adopted.

The recreational user statute also does not violate the Equal Privileges-and-Immunities Clause of the Arizona Constitution.  That clause prohibits the government from granting special privileges to an arbitrary class.  Here, the class of recreational users is rationally related to the government’s legitimate interest in encouraging private land use.  The statute does not extend any special privilege to managers because it grants all non-municipal entities the same privilege. 

Finally, the recreational user statute is not an unconstitutional “special law.”  The law is rationally related to a legitimate legislative objective and its classification encompasses all similarly situated members.  The statute is “elastic” because it allows entities to come within or move out of the protected class by choosing whether to allow use of their land and whether to charge more than a nominal fee.

Judge McMurdie authored the opinion; Judges Winthrop and Campbell concurred.