FILED BY CLERK
JUN 30 2006
IN THE COURT OF APPEALS COURT OF APPEALS
STATE OF ARIZONA DIVISION TWO
DIVISION TWO
JANE ANDRESANO and RALPH ) 2 CA-CV 2005-0151
ANDRESANO, wife and husband, ) DEPARTMENT A
)
Plaintiffs/Appellants, ) OPINION
)
v. )
)
THE COUNTY OF PIMA, a body politic, )
and PIMA COUNTY DEPARTMENT OF )
PUBLIC WORKS, a public entity, )
)
Defendants/Appellees. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C-20035291
Honorable Deborah Bernini, Judge
AFFIRMED
Harold Hyams & Associates, P.C.
By Michael J. Kuborn Tucson
Attorneys for Plaintiffs/Appellants
Barbara LaWall, Pima County Attorney
By James M. Wilkes Tucson
Attorneys for Defendants/Appellees
P E L A N D E R, Chief Judge.
¶1 In this personal injury-premises liability action, we are again required to
interpret Arizona’s recreational use immunity statute, A.R.S. § 33-1551. See, e.g., Armenta
v. City of Casa Grande, 205 Ariz. 367, 71 P.3d 359 (App. 2003); Herman v. City of
Tucson, 197 Ariz. 430, 4 P.3d 973 (App. 1999); Prince v. City of Apache Junction, 185
Ariz. 43, 912 P.2d 47 (App. 1996). Plaintiff/appellant Jane Andresano and her husband
appeal from the trial court’s grant of summary judgment in favor of defendant/appellee Pima
County. Contrary to Andresano’s argument, we hold that the trial court properly applied
§ 33-1551 to the facts presented and correctly found the county not liable as a matter of law
under that statute. Therefore, we affirm the judgment.
BACKGROUND
¶2 Although the pertinent facts are essentially undisputed, on appeal from a
summary judgment, we view all facts and reasonable inferences therefrom in the light most
favorable to the party against whom judgment was entered. See Prince, 185 Ariz. at 45, 912
P.2d at 49. During the annual AIDS Walk held by the Southern Arizona AIDS Foundation
(SAAF) at Rillito Park in October 2002, Jane Andresano slipped and fell in a drainage
culvert in the infield of the Rillito Downs Race Track, breaking her ankle. She was serving
as chaperone for students from her daughter’s high school but was also going to participate
in the walk herself.
¶3 Pima County owns Rillito Park and the racetrack that lies within it. The
county allows many organizations to use the racetrack area through a cooperative use
2
agreement executed by the user and the county. SAAF entered into one such agreement for
its annual AIDS Walk in 2002. Pursuant to the agreement, the county granted a license to
SAAF “for the special use” on October 20, 2002, of certain premises. The premises
included the racetrack’s infield, grandstands, and parking lot as well as the Rillito River Park
system from Rillito Park to Flowing Wells Road.
¶4 In exchange, the agreement required SAAF to pay the county a $950 fee to use
the premises. That fee included $350 for use of the racetrack infield and $300 each for use
of the parking lot and grandstands. The county also required a $950 security deposit.
According to the uncontroverted affidavit of the county’s contract specialist, the county
assessed the $950 fee “to help defray the costs of maintaining the facility,” and that same,
“scheduled” fee was charged to all users who entered into a cooperative use agreement. The
county collected $30,993.50 in user fees for the Rillito Park facility during the 2002-2003
fiscal year and spent $146,824 that year in maintenance and upkeep costs for the facility.
¶5 Andresano did not personally pay a fee to use the county premises or to
participate in the AIDS Walk. After her injury, Andresano filed this action, alleging that the
county had negligently failed to maintain the property or warn her of “dangerous conditions
[at the park],” specifically, “the presence of an unprotected culvert . . . on the premises.”
The county moved for summary judgment, arguing § 33-1551 applied and immunized it from
liability. The trial court granted the motion, noting that Andresano’s lack of payment of a
fee entitled the county to judgment. It further concluded that “access to the park was not
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limited or restricted to any special group, the user fee was minimal and not a revenue
generating fee, and . . . the park operations on October 20, 2002 were governmental, and not
proprietary, in nature.” The court also ruled that “[t]he use to which Rillito Park was put
on October 20, 2002, appears in all respects to be the type of use that the legislature
envisioned when it passed the [recreational use] statute.” This appeal followed.
DISCUSSION
¶6 Andresano contends the trial court erred in granting summary judgment in
favor of the county, arguing her “right of action was incorrectly abrogated by the trial court’s
narrow interpretation of the recreational use statute.” In reviewing a grant of summary
judgment, “[w]e determine de novo whether any genuine issues of material fact exist and
whether the trial court erred in applying the law.” Armenta, 205 Ariz. 367, ¶ 5, 71 P.3d at
361. “We also review de novo whether the recreational use immunity statute applies to this
case . . . .” Id.; see also Herman, 197 Ariz. 430, ¶ 5, 4 P.3d at 975 (we review de novo
statutory interpretation issues). And, “[b]ecause the statute appears to limit 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.’” Armenta, 205 Ariz. 367,
¶ 5, 71 P.3d at 361, quoting Smith v. Ariz. Bd. of Regents, 195 Ariz. 214, ¶ 9, 986 P.2d
247, 249 (App. 1999); see also Herman, 197 Ariz. 430, ¶ 12, 4 P.3d at 976.
¶7 Section 33-1551(A) provides:
A public or private owner, easement holder, lessee or
occupant of premises is not liable to a recreational or
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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.
Andresano does not assert that the county acted wilfully, maliciously, or in a grossly
negligent manner. Therefore, if the statute applies, the county is immune from liability in
an action for simple negligence. See Armenta, 205 Ariz. 367, ¶ 24, 71 P.3d at 365.
¶8 Andresano first maintains “[t]he trial court erred when it determined that the
County’s operation and maintenance of the Rillito Downs Facility was governmental rather
than proprietary in nature.” The county responds that “the discussion of governmental
versus proprietary function is immaterial” under the recreational use statute and that the
statute “contains its own internal set of requirements . . . without the need for further
analysis.” We agree with the county on this point.
¶9 As Andresano correctly notes, our supreme court applied the governmental-
versus-proprietary test in Dickey v. City of Flagstaff, 205 Ariz. 1, 66 P.3d 44 (2003). But
it did so in the context of a constitutional challenge not raised here.1 Although the common
law might have differentiated between governmental and proprietary functions, the
1
The court in Dickey held that, “because [the plaintiffs] would have had no action
when the anti-abrogation provision [in article XVIII, § 6 of the Arizona Constitution] was
adopted, the limited immunity afforded to the City of Flagstaff by the recreational use statute
did not wrongfully abrogate [the plaintiffs’] right to sue the City for negligence.” 205 Ariz.
1, ¶ 23, 66 P.3d at 49. No such constitutional issue is raised here. And the dispositive issue
in this case—the scope and effect of a payment made by an entity other than the recreational
user/plaintiff—was neither presented nor addressed in Dickey.
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recreational use statute draws no such distinction, nor do we in interpreting and applying
that law. Therefore, we do not address the propriety of the trial court’s ruling that “the park
operations on October 20, 2002 were governmental, and not proprietary, in nature.”
¶10 We now turn to the issue we view as dispositive: whether Andresano was a
“recreational user” as defined in § 33-1551(C)(4) at the time of her accident.2 As amended
in 1998, see 1998 Ariz. Sess. Laws, ch. 22, § 1, that subsection provides:
“Recreational user” means a person to whom permission
has been granted or implied without the payment of an
admission fee or any 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 any other consideration as provided in this
section. A nominal fee that is charged by a public entity or a
nonprofit corporation to offset the cost of providing the
educational or recreational premises and associated services
does not constitute an admission fee or any other consideration
as prescribed by this section.
§ 33-1551(C)(4). The 1998 amendment added the last sentence to that subsection. 1998
Ariz. Sess. Laws, ch. 22, § 1.
2
Andresano does not contend that the Rillito Park facility falls outside the definition
of “premises” in § 33-1551(C)(3). See Armenta v. City of Casa Grande, 205 Ariz. 367,
¶¶ 7-9, 71 P.3d 359, 362 (App. 2003); see also Prince v. City of Apache Junction, 185
Ariz. 43, 46, 912 P.2d 47, 50 (App. 1996). Nor does she deny having entered the premises
to “exercise” or “engage in similar pursuits” at the time of her injury, within the meaning of
§ 33-1551(C)(4). See Herman v. City of Tucson, 197 Ariz. 430, ¶ 19, 4 P.3d 973, 978
(App. 1999); see also Prince, 185 Ariz. at 46, 912 P.2d at 50.
6
¶11 As Andresano points out, “[t]he ‘admission fee or any other consideration’
clause contained in A.R.S. § 33-1551(C)(4) provides an exception to the recreational use
statute.” And, as she also correctly notes, “the payment of an admission fee or any other
consideration by a user of the public premises negates the public entity’s immunity [as to
that user] unless the fee is considered nominal and, if nominal, is charged to offset the cost
of providing the premises and associated services.”
¶12 The parties devote much of their argument to the thorny issue of whether the
$950 user fee SAAF paid to the county was “[a] nominal fee that [was] charged by [the
county] to offset the cost of providing the . . . recreational premises and associated services.”
§ 33-1551(C)(4). But we focus first on the question of whether Andresano was “a person
to whom permission [was] granted or implied without the payment of an admission fee or
any other consideration to . . . enter upon [the Rillito Park] premises.” Id. And, more
particularly, we examine whether the user fee SAAF paid qualifies as the type of “admission
fee” or “other consideration” to which subsection (C)(4) refers, thereby potentially removing
Andresano from “recreational user” status. See Herman, 197 Ariz. 430, ¶ 8, 4 P.3d at 976
(“The statute applies only if [the plaintiff] was a recreational user.”).
¶13 Andresano contends, without “belabor[ing] the issue,” that “the trial court
determined that the $950.00 user fee paid by SAAF would apply to [her] as an agent of
SAAF at the time of her injury.” But that contention misconstrues the trial court’s ruling.
What the court actually stated was: “[T]o the extent that the Court adopts Plaintiff’s claim
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that she was an ‘agent’ of SAAF, a brief look at the nature of the user fee is appropriate.”
Immediately before that, however, the trial court stated: “[Andresano] does not dispute that
she did not pay any sort of admission fee to enter the park or an entry fee to participate in
the [AIDS Walk] event. These facts alone seem to warrant judgment in Defendant’s favor.”
We agree and, for the reasons set forth below, affirm summary judgment on that ground. See
Rowland v. Great States Ins. Co., 199 Ariz. 577, ¶ 6, 20 P.3d 1158, 1162 (App. 2001) (we
will affirm trial court’s summary judgment ruling if it is correct on any ground).
¶14 Andresano relies on Prince for the proposition that the user fee SAAF paid
applies to her “individually even though [s]he did not personally pay the fee.” We are not
persuaded. In Prince, the plaintiff was a member of a trucking company softball team. “The
participation of plaintiff’s team and its members, including plaintiff, on the accident date
depended on the team’s required payment of a $250 entry fee to the city.” 185 Ariz. at 46,
912 P.2d at 50. The trucking company that sponsored the plaintiff’s team had “made that
payment with the ‘understanding that this entry fee was a requirement of entering a team into
the league and to use the league facilities.’” Id. Payment of the entry fee in Prince not only
“entitled plaintiff’s team to reserved, ‘priority use’ of the softball field at the time of
plaintiff’s accident” but also helped cover the costs of field preparation, maintenance, and
lighting. Id. On those facts, we concluded “the permission granted to plaintiff ‘to enter
upon’ the softball field to ‘exercise . . . or engage in similar pursuits’ was not ‘without the
payment of an admission fee or other consideration,’ § 33-1551(B)(3), and the trial court’s
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implicit ‘conclusion of “no charge” was in error.’” 185 Ariz. at 46, 912 P.2d at 50
(emphasis and alteration in Prince).
¶15 We noted in Prince that “‘the “charge” (“admission price or fee”) exception
[in current § 33-1551(C)(4)] “must be given the broadest reading that is within the fair
intendment of the language used.”’” 185 Ariz. at 45, 912 P.2d at 49, quoting Johnson v.
Rapid City Softball Ass’n, 514 N.W.2d 693, 696 (S.D. 1994). We further stated: “[I]f an
admission fee or other consideration was paid, at least in part, to enter upon premises to
engage in any of the defined recreational activities, that is sufficient to exclude one from
recreational user status.” Id. And, we also noted, § 33-1551 “does not specifically require
that the ‘admission fee or other consideration’ be paid by the individual claimant rather than
by a team to engage in a sporting event at a particular site in the park.” 185 Ariz. at 46 n.5,
912 P.2d at 50 n.5. Rather, we observed, “‘[a] fee does not necessarily have to be paid by
the injured party [her]self to take a case outside the recreational user statute so long as
someone in the plaintiff’s party has paid a fee to utilize the overall benefits.’” Id., quoting
Reed v. City of Miamisburg, 644 N.E.2d 1094, 1095 (Ohio Ct. App. 1993).
¶16 We find Prince distinguishable and unsupportive of Andresano’s contention
that SAAF’s payment of the $950 user fee constituted “an admission fee or any other
consideration” paid on her behalf.3 § 33-1551(C)(4). Andresano testified in her deposition
3
Our holding in Prince that the plaintiff there had not been a “recreational user” at
the time of his accident was based on “the particular facts of [that] case.” 185 Ariz. at 46,
912 P.2d at 50.
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that she had not “paid an entry fee in order to participate in the walk.” And the record does
not suggest, let alone establish, that she was an agent or employee of SAAF or otherwise
held even a semiofficial position in that organization at any time.4 Unlike the plaintiff in
Prince, Andresano was not a member of any team for which payment of a fee was required
to “‘enter[] a team into [a] league and to use the league facilities.’” 185 Ariz. at 46, 912
P.2d at 50. Rather, she was merely one of many community members whom SAAF invited
to participate in its widely publicized, fund-raising event, and the fee SAAF paid was not
made for the primary purpose of permitting her to participate in the walk or to utilize the
county facilities.
¶17 In contrast, the trucking company sponsor in Prince paid the entry fee solely
on behalf of the plaintiff’s team so it could participate in the league and use the softball field
for games. Thus, there was a direct correlation between the payor (the trucking company
sponsor), the plaintiff (as a member of the sponsored softball team), and the purpose for
which payment was made (to entitle plaintiff and his team to participate in the softball
league and to “reserved, ‘priority use’ of the softball field at the time of plaintiff’s
accident”). Id. at 46, 912 P.2d at 50. In other words, the entry fee was paid on behalf of
4
“‘[A]n agent is “one who acts on behalf of another.”’” Barlage v. Valentine, 210
Ariz. 270, ¶ 16, 110 P.3d 371, 376 (App. 2005), quoting Se. Ariz. Med. Ctr. v. Ariz. Health
Care Cost Containment Sys., 188 Ariz. 276, 282, 935 P.2d 854, 860 (App. 1996)
(alteration in Se. Ariz. Med. Ctr.). Andresano asserted below that “payment of the ‘user’s
fee’ by SAAF must be extended to [her]” because she served as a “volunteer fund raiser and
was present within the Rillito Downs facility at the invitation of and on behalf of SAAF.”
But no facts of record support those assertions.
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the team to directly and exclusively benefit a specific, small group to which the plaintiff
belonged.
¶18 The same cannot be said in this case. The user fee SAAF paid was for its
benefit, that is, to obtain a license for special use of the Rillito Park premises for its own
fund-raising purposes on the date specified. It then became the “occupant” of the premises.
§ 33-1551(A). Unlike in Prince, no direct relationship existed between SAAF, as payor,
and Andresano. And the user fee the county charged SAAF was not paid on behalf of, or
to directly benefit, her. See, e.g., Casas v. United States, 19 F. Supp. 2d 1104, 1108 (C.D.
Cal. 1998) (rejecting plaintiff’s “broad reading of the recreational use statute” that “because
some people” had paid a registration fee, she and others “were brought within the [statute’s]
consideration exception”); Whooley v. Commonwealth, 783 N.E.2d 461, 462-63 (Mass.
App. Ct. 2003) (whether other recreational users paid fee for their own use of hockey rink
not determinative, but rather, issue was “whether the plaintiff paid a fee to the owner of the
facility in exchange for her use of the premises”); Garreans v. City of Omaha, 345 N.W.2d
309, 314 (Neb. 1984) (plaintiffs deemed “nonpaying, recreational users” when user fees
were not paid by them or specifically on their behalf); cf. Saari v. Winter Sports, Inc., 64
P.3d 1038, 1042 (Mont. 2003) (although “it is not necessary for the ultimate user . . . to be
the one who furnishes the valuable consideration to the property owner for the use of the
property, it is necessary that the consideration be given ‘to create access to the premises for
11
the ultimate user.’”), quoting Simchuk v. Angel Island Community Ass’n, 833 P.2d 158,
162 (Mont. 1992) (emphasis added in Saari).
¶19 Moreover, the user fee the county charged SAAF was not paid as “an
admission fee” or “other consideration” for purposes of granting permission to Andresano
to enter or use the premises.5 Rather, the uncontroverted facts established that the
“scheduled fees” only applied to “persons or entities who enter into Cooperative Use
Agreements with Pima County,” i.e., SAAF.
¶20 Viewing the statutory exception for “an admission fee or any other
consideration” broadly, as we must, we have no reason to believe the legislature intended
that exception to apply when the connection between the payment and the plaintiff is as
attenuated as it is here. Under these circumstances, we conclude Andresano was a
“recreational user” because her permitted use of the Rillito Park facilities was “without the
payment of an admission fee or any other consideration” by her or on her behalf. § 33-
1551(C)(4). And, because the trial court’s entry of summary judgment on that ground was
proper, we do not address the question of whether the $950 user fee SAAF paid was
“nominal” within the meaning of the 1998 amendment to § 33-1551(C)(4).
5
We note that, to the extent Andresano required permission to enter the Rillito Park
premises on the accident date, such permission was requested from and granted by SAAF,
not the county. Andresano avowed that she was required to register with SAAF before
participating in the walk. And, as she repeatedly asserts, the cooperative use agreement
between SAAF and the county implied that “SAAF would have exclusive use of the facilities
on that day” and that “access and use of the park was only held open to SAAF and those
members of the general public to whom SAAF granted entry.”
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¶21 In sum, we agree with the trial court that Andresano “was a recreational user
of the Pima County property where she was injured and . . . is precluded from seeking
damages for simple negligence from Pima County pursuant to . . . § 33-1551.” Accordingly,
the court properly granted summary judgment in favor of the county.
DISPOSITION
¶22 The judgment of the trial court is affirmed.
____________________________________
JOHN PELANDER, Chief Judge
CONCURRING:
____________________________________
JOSEPH W. HOWARD, Presiding Judge
____________________________________
GARYE L. VÁSQUEZ, Judge
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