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The Court of Appeals Recognizes a New Classification of Landowner – The Recreational User

Arizona Court of Appeals, Division One in Normandin v. Encanto Adventures and City of Phoenix, 1 CA-CV 17-0373, June 26, 2018 made new Arizona law by upholding A.R.S. 33-1551, Arizona’s Recreational User Immunity Statute holding that a private land-owner was a “manager” of City of Phoenix Encanto City Park premises in which the recreational user was not charged a fee for engaging in recreational activity.  The Court also recognized the creation under A.R.S. 33-1551 of a new classification of landowner – the recreational user.

Normandin purchased from Encanto a $287 Birthday Party package to celebrate her daughter’s birthday at Enchanted Island Amusement Park. The Birthday Party package specifically excluded a piñata and provided no part of Normandin’s $287 would be refunded if she decided not to bring her own piñata to her daughter’s birthday party.  During the birthday party, Enchanted’s staff led Normandin’s birthday celebrants outside Enchanted Park and into Encanto City Park to the City’s piñata area.  While approaching her own piñata, Normandin tripped and fell breaking her ankle. Maricopa County Superior Court granted Summary Judgment in favor of both City and Encanto based on A.R.S. 33-1551 immunity for simple negligence claims.

Normandin filed her Appeal claiming both City of Phoenix and Encanto Adventures (parent of Enchanted Island Amusement Park) were merely negligent, and claimed the $287 Birthday Party payment was more than a “nominal amount” depriving both City and Encanto of immunity under A.R.S. 33-1551. Normandin also claimed Encanto was not entitled to immunity under A.R.S. 33-1551, based on claims of alleged violations of Arizona’s Constitution.

The Court affirmed the Trial Court’s Summary Judgment Order and held based on the Concession Agreement between the City and Encanto that Encanto was a “manager” of City’s Picnic Island, had maintained City’s Picnic Island and the piñata area for 25 years, and therefore, was a protected entity under A.R.S. 33-1551.  The Court held that Normandin testified that her $287 Birthday Party payment specifically did not include any piñata activity.  Thus, Normandin paid no fee to enter City’s Park, and was a recreational user under A.R.S. 33-1551.

For the first time in an Arizona appellate opinion, the Court held that the application of A.R.S. 33-1551 granting immunity to private landowners did not violate the Arizona Constitution.

  1. As the City’s agent in maintaining the City’s Park premises, including the piñata area, Encanto performed a government function not existing at common law. Therefore, Normandin’s simple negligence claim is not protected by Article 18, Section 6, and the Anti-Abrogation Clause is not implicated.
  2. A.R.S. 33-1551 does not violate the Equal Privileges and Immunities Clause, Article 2, Section 13, as A.R.S. 33-1551 created a new classification of recreational user related to a legitimate governmental interest of encouraging the use of private land for recreational use.
  3. A.R.S. 33-1551 does not extend any special privileges in violation of Article 2, Section 13, as A.R.S. 33-1551 applies to any of the non-municipal entities that otherwise qualify under A.R.S. 33-1551.
  4. A.R.S. 33-1551 is not a Special Law in violation of Article 4, Part 2, Section 19 (13) because the statute survives the three-part scrutiny required by the Arizona Supreme Court in Gallardo v. State (2014).

Thus, Court of Appeals affirmed the Trial Court’s Order granting Summary Judgment to both City of Phoenix and Encanto Adventures, LLC., and denied all Appellant’s Constitutional challenges to A.R.S. 33-1551.