MacKinney v. City of Tucson , 231 Ariz. 584 ( 2013 )

FILED BY CLERK
MAR 13 2013
IN THE COURT OF APPEALS
STATE OF ARIZONA COURT OF APPEALS
DIVISION TWO DIVISION TWO
THOMAS MACKINNEY, a married )
man, individually, ) 2 CA-CV 2012-0125
) DEPARTMENT B
Plaintiff/Appellee, )
) OPINION
v. )
)
CITY OF TUCSON, a body politic, )
)
Defendant/Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. C20108504
Honorable Ted B. Borek, Judge
VACATED AND REMANDED
The Redhair Law Group, P.C.
By Jack I. Redhair and Michael Redhair Tucson
Attorneys for Plaintiff/Appellee
Michael G. Rankin, Tucson City Attorney
By Viola Romero-Wright
and Michael W.L. McCrory Tucson
Attorneys for Defendant/Appellant
E S P I N O S A, Judge.
¶1 In this personal injury action, defendant/appellant City of Tucson appeals
from a judgment in favor of plaintiff/appellee Thomas MacKinney. The city argues the
trial court erred in denying its motion for summary judgment, asserting that Arizona’s
recreational-use immunity statute, A.R.S. § 33-1551, barred MacKinney’s negligence
claim as a matter of law. For the following reasons, we vacate and remand.
Factual Background and Procedural History
¶2 In reviewing a summary-judgment ruling, we view the facts in the light
most favorable to the nonmoving party. City of Phoenix v. Yarnell, 184 Ariz. 310, 312
n.2, 909 P.2d 377, 379 n.2 (1995). In November 2009, MacKinney and his son Matthew
were playing golf at a city-owned course when MacKinney slipped and fell, injuring,
inter alia, his lower leg and ankle. MacKinney sued the city and the golf course, alleging
the walkway approaching the seventh tee was “steep, narrow, [and] unreasonably
dangerous” and had been “negligently designed, constructed and/or maintained in such a
manner as to constitute an unreasonably dangerous condition.”
¶3 The city moved for summary judgment, arguing it was not liable for
MacKinney’s injuries because it was immune under Arizona’s recreational-use immunity
statute. See § 33-1551. MacKinney opposed the motion, asserting the city was not
immune because the golf course was not a “premises” protected under the statute and he
was not a “recreational user” as defined by the statute because he had paid an admission
fee for purposes of entering and using the course. The trial court denied the city’s
motion, initially without explanation, but subsequently issued two minute entries
clarifying that the denial was based on its conclusion that a golf course is not included in
the statutorily enumerated “premises” implicating recreational-use immunity and that an
2
issue of fact existed as to whether the fee MacKinney had paid was a “nominal” one
under the statute.
¶4 The matter proceeded to trial, and the jury found in favor of MacKinney,
determining his damages to be $180,000 but allocating seventy percent of the fault to him
such that the court entered final judgment against the city in the amount of $54,000. We
have jurisdiction over the city’s appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and
12-2101(A)(1).
Discussion
¶5 “Generally, the denial of a summary judgment motion is not reviewable on
appeal from a final judgment entered after a trial on the merits.” John C. Lincoln Hosp.
& Health Corp. v. Maricopa Cnty., 208 Ariz. 532, ¶ 19, 96 P.3d 530, 537 (App. 2004). If
the denial was based on a point of law, however, an appellate court may review the ruling
as part of its review of the final judgment on appeal. Hourani v. Benson Hosp., 211 Ariz.
427, ¶ 4, 122 P.3d 6, 9 (App. 2005). In this case, the trial court’s denial of the motion
was based on its conclusion that the golf course did not fall within the definition of
“premises” protected under the recreational-use immunity statute, a purely legal
determination as there was no dispute that the injury had occurred on a city-owned golf
course and the material question was whether that property qualified as a “premises”
protected under the statute. Because the trial court ruled the golf course was not a
protected premises and the city was therefore not immune, the immunity issue was
eliminated from trial. Thus, the ruling was an “intermediate order[] involving the merits
3
of the action and necessarily affecting the judgment” under review. A.R.S.
§ 12-2102(A); see also Pepsi-Cola Metro. Bottling Co. v. Romley, 118 Ariz. 565, 568,
578 P.2d 994, 997 (App. 1978) (§ 12-2102 proper basis for court of appeals’ review).
Our consideration of the court’s summary-judgment ruling is therefore appropriate as part
of our review of the final judgment.1
¶6 Summary judgment is proper only when “‘there are no genuine issues of
material fact and the moving party is entitled to judgment as a matter of law.’” Villa de
Jardines Ass’n v. Flagstar Bank, FSB, 227 Ariz. 91, ¶ 5, 253 P.3d 288, 292 (App. 2011),
quoting Airfreight Express Ltd. v. Evergreen Air Ctr., Inc., 215 Ariz. 103, ¶ 19, 158 P.3d
232, 239 (App. 2007). Summary judgment is disfavored in negligence actions but may
be granted “when there is no dispute as to any material facts, only one inference can be
drawn from those facts, and the moving party is entitled to judgment as a matter of law.”
McLeod ex rel. Smith v. Newcomer, 163 Ariz. 6, 8, 785 P.2d 575, 577 (App. 1989). We
1
Although the trial court initially believed there was a question of fact regarding
whether MacKinney was a recreational user as that term is defined by § 33-1551, this
does not preclude our review because the issue was never reached due to the court’s
ruling on the “premises” question. See Navajo Freight Lines, Inc. v. Liberty Mut. Ins.
Co., 12 Ariz. App. 424, 428, 471 P.2d 309, 313 (1970) (suggesting appellate review of
summary-judgment denial appropriate if clear “the denial was made strictly on a point of
law, and that because of such ruling the losing party thereafter was precluded from
offering evidence or urging the point at the time of the trial on the merits”), citing Gumm
v. Combs, 302 S.W.2d 616, 617 (Ky. Ct. App. 1957) (where basis for denial of summary
judgment a matter of law, review of denial proper as part of review from final judgment
because legal question “may not be again presented or retried”); cf. Cnty. of La Paz v.
Yakima Compost Co., 224 Ariz. 590, n.2, 233 P.3d 1169, 1175 n.2 (App. 2010) (declining
to review denial of summary judgment in view of factual issues later tried to jury and
same legal conclusions underlying trial court’s ruling on motion for judgment as a matter
of law).
4
review de novo a trial court’s summary-judgment ruling. Hourani, 211 Ariz. 427, ¶ 4,
122 P.3d at 9.2
¶7 The applicability of the recreational-use immunity statute is a question of
law, subject to de novo review. Andresano v. Cnty. of Pima, 213 Ariz. 65, ¶ 6, 138 P.3d
1192, 1194 (App. 2006); see also Prince v. City of Apache Junction, 185 Ariz. 43, 45,
912 P.2d 47, 49 (App. 1996) (issues of statutory interpretation reviewed de novo). In
analyzing the statute’s applicability, we are not bound by a trial court’s conclusions of
law. See Gary Outdoor Adver. Co. v. Sun Lodge, Inc., 133 Ariz. 240, 242, 650 P.2d
1222, 1224 (1982). Our primary goal in interpreting a statute is to give effect to the
legislature’s intent, and the language of a statute is the most reliable evidence of that
intent. Walker v. City of Scottsdale, 163 Ariz. 206, 208-09, 786 P.2d 1057, 1059-60
(App. 1989). Because the statute limits common-law liability, however, we must strictly
construe its language “‘to avoid any overbroad statutory interpretation that would give
unintended immunity and take away a right of action.’” Andresano, 213 Ariz. 65, ¶ 6,
138 P.3d at 1194, quoting Armenta v. City of Casa Grande, 205 Ariz. 367, ¶ 5, 71 P.3d
359, 361 (App. 2003); see also Walker, 163 Ariz. at 211, 786 P.2d at 1062; Schilling v.
Embree, 118 Ariz. 236, 239, 575 P.2d 1262, 1265 (App. 1977). For the recreational-use
2
In Samaritan Health System v. Superior Court, 194 Ariz. 284, ¶ 11, 981 P.2d 584,
588 (App. 1998), this court reviewed a denial of summary judgment for abuse of
discretion. Accord Salt River Valley Water Users’ Ass’n v. Superior Court, 178 Ariz. 70,
74, 870 P.2d 1166, 1170 (App. 1993). Because this case turns on an issue of statutory
interpretation for which our review is de novo, the outcome would be the same under
either standard. See Prince v. City of Apache Junction, 185 Ariz. 43, 45, 912 P.2d 47, 49
(App. 1996) (issues of statutory interpretation reviewed de novo).
5
immunity statute to apply, the property on which the injury occurred must qualify as a
“premises” as described in the statute, and MacKinney must have been a recreational user
of the property under the statute’s terms. See § 33-1551(A).
Premises
¶8 The city first contends the trial court erred in concluding a golf course is
not a “premises” that implicates recreational-use immunity. Section 33-1551(A) (1998),
the version of the statute in force when MacKinney was injured,3 provides:
A public or private owner, easement holder, lessee or
occupant of premises is not liable to a recreational or
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.
MacKinney alleged only that the city was negligent, not that its conduct was wilful,
malicious, or grossly negligent; thus, if the elements of § 33-1551 are met, it provides the
city with immunity from his lawsuit. See Andresano, 213 Ariz. 65, ¶ 7, 138 P.3d at 1194.
Section 33-1551(C)(3) (1998) defines “premises” to include
agricultural, range, open space, park, flood control, mining,
forest or railroad lands, and any other similar lands, wherever
located, which are available to a recreational or educational
user, including, but not limited to, paved or unpaved multi-
3
The legislature has amended § 33-1551 twice since MacKinney was injured. See
2012 Ariz. Sess. Laws, ch. 14, § 1; 2011 Ariz. Sess. Laws, ch. 123, § 1. We apply the
version in force at the time of the injury. See A.R.S. § 1-244 (“No statute is retroactive
unless expressly declared therein.”); Watts v. Ariz. Dep’t of Revenue, 221 Ariz. 97, ¶ 35,
210 P.3d 1268, 1275 (App. 2009) (finding statutory amendment not retroactive where
amended version did not include retroactivity provision). Although the statute has been
amended, our reasoning would apply to the current version as well.
6
use trails and special purpose roads or trails not open to
automotive use by the public and any building, improvement,
fixture, water conveyance system, body of water, channel,
canal or lateral, road, trail or structure on such lands.
As MacKinney points out, neither former § 33-1551 nor the current version expressly
includes a golf course within the definition of premises.
¶9 The city argues a golf course is similar to a park and therefore is included
in the definition of “premises” through the phrase “other similar lands.” See
§ 33-1551(C)(3) (1998) (“premises” includes park lands “and any other similar lands”).
The city points out that when the legislature expanded the definition of “premises” to
include park lands, see 1993 Ariz. Sess. Laws, ch. 90, § 25, case law already had
established for various purposes that golf courses are parks or are similar to parks. See
Moore v. Valley Garden Ctr., 66 Ariz. 209, 212-13, 185 P.2d 998, 1000 (1947) (golf
courses “constitute a recreational use of land for park purposes”); see also City of
Phoenix v. Moore, 57 Ariz. 350, 357-59, 113 P.2d 935, 938-39 (1941) (noting parks,
playgrounds, swimming pools, and golf courses are “recreational facilities”); Maricopa
Cnty. v. Maricopa Cnty. Mun. Water Conserv. Dist. No. 1, 171 Ariz. 325, 329, 830 P.2d
846, 850 (App. 1991) (analogizing public parks, swimming pools, and golf courses).
Because the legislature is presumed to be aware of existing law when it enacts or
modifies a statute, State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637
(1990), we agree that the comparisons in these decisions support the city’s argument that
the legislature intended golf courses to be included in “other similar lands.”
7
¶10 We find additional evidence of the legislature’s intent to include golf
courses within the definition of “premises” in the evolution of § 33-1551. In Walker,
relied upon by MacKinney, this court held that a previous version of the statute did not
provide recreational immunity against liability for injuries suffered by a bicyclist during a
fall on a bicycle path in an urban greenbelt. 163 Ariz. 206, 786 P.2d 1057. We
concluded that the path was not a “premises” under the recreational immunity statute as
originally enacted because it was not included in the four types of premises then
enumerated in the statute: agricultural, range, mining, or forest lands.4 Id. at 209, 786
P.2d at 1060. We also determined that it was not within the scope of “other similar
lands” because, whereas the lands enumerated in the statute all are “relatively large areas
of land,” “are located outside urban areas in thinly populated rural or semi-rural locales,”
and are “often in a natural, undeveloped state,” a maintained bike path in an urban,
residential area, by contrast, does not exhibit any of these characteristics and therefore
could not be considered similar under the statute. Id. at 210-11, 786 P.2d at 1061-62.
¶11 In 1993, our legislature amended the definition of premises contained in
§ 33-1551 to add to the enumerated lands. See 1993 Ariz. Sess. Laws, ch. 90, § 25. As
amended, the definition of “premises” was broadened to include
agricultural, range, open space, park, flood control, mining,
forest or railroad lands, and any other similar lands, wherever
4
Section 33-1551(B)(1) (1983) provided, “‘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.” 1983 Ariz.
Sess. Laws, ch. 82, § 1.
8
located, which are available to a recreational or educational
user, including, but not limited to, paved or unpaved multi-
use trails and special purpose roads or trails not open to
automotive use by the public and any building improvement,
fixture, water conveyance system, body of water, channel,
canal or lateral, road, trail or structure on such lands.
§ 33-1551 (1993). Certain of the 1993 amendments clearly repudiate portions of this
court’s reasoning in Walker. The addition of park lands suggests the legislature intended
to immunize owners of properties that are not necessarily large areas of land located in
“thinly populated rural or semi-rural locales” as we found in Walker, 163 Ariz. at 210,
786 P.2d at 1061. This conclusion is supported by the addition of the words “wherever
located” to the definition of premises. See 1993 Ariz. Sess. Laws, ch. 90, § 25. And the
addition of “paved or unpaved multi-use trails and special purpose roads or trails not
open to automotive use by the public” and any “improvement, fixture, water conveyance
system, body of water, channel, canal or lateral, road, [or] trail,” id., means our rationale
that the enumerated lands were “often in a natural, undeveloped state,” Walker, 163 Ariz.
at 210, 786 P.2d at 1061, is no longer controlling in determining whether property is
contained within the scope of “other similar lands.” Given the breadth of the 1993
amendments, it is clear that Walker has been superseded on this point. See Garza
Rodriguez, 164 Ariz. at 111, 791 P.2d at 637 (legislative amendment of statute raises
presumption of intentional change to existing law).
¶12 In light of the broader definition of “premises” established by the 1993
amendments, the present case requires us to determine whether a golf course is “similar”
to any of the types of lands enumerated under § 33-1551 (1998) because golf courses are
9
not specifically listed in the definition. One type of property added in the 1993
amendments was “park . . . lands.” 1993 Ariz. Sess. Laws, ch. 90, § 25. And one of the
common definitions of “park” is “[a] tract of land set aside for public use, as . . . [a]n
expanse of enclosed grounds for recreational use within or adjoining a town.” The
American Heritage Dictionary 903 (2d college ed. 1982). “Golf,” of course, is “[a] game
played on a large outdoor course with a series of 9 or 18 holes spaced far apart.” Id. at
566. Our legislature has defined “golf course” in another context as “substantially
undeveloped land, including amenities such as landscaping, irrigation systems, paths and
golf greens and tees, that may be used for golfing or golfing practice by the public or by
members and guests of a private club.” A.R.S. § 42-13151.
¶13 In view of these definitions and our legislature’s expansion of the types of
lands that implicate recreational immunity in supersession of Walker, we conclude golf
courses are sufficiently similar to park lands to be included in the statutory definition of
“[p]remises” under § 33-1551(C)(3) (1998). A golf course fits within the common
definition of “park”—it is a parcel of property kept for recreational use that is designed
and maintained for the primary purpose of allowing users to engage in an undisputedly
recreational activity. Accordingly, that MacKinney was injured on a golf course does not
avoid the applicability of the recreational-use immunity statute.
Recreational User
¶14 Although the golf course is a premises under § 33-1551, for the city to have
been immune MacKinney must also have been a recreational user. Because the trial
10
court’s ruling on the premises issue prevented resolution of this question, we must vacate
the judgment and remand for additional proceedings. In the interest of judicial economy,
however, and because we have had the benefit of briefing and oral argument by the
parties on the issue, we address certain aspects of the recreational-user question that will
undoubtedly arise on remand. See Czarnecki v. Volkswagen of Am., 172 Ariz. 408, 415
n.6, 837 P.2d 1143, 1150 n.6 (App. 1991) (addressing “other issues raised on appeal” as a
matter of judicial economy “because they may reoccur on a retrial”); State ex rel. Miller
v. J.R. Norton Co., 158 Ariz. 50, 52, 760 P.2d 1099, 1101 (App. 1988) (same); cf.
Schwab v. Matley, 164 Ariz. 421, 422 n.2, 793 P.2d 1088, 1089 n.2 (1990) (reaching
constitutional issue where issue had been briefed and principles of judicial economy
dictated, despite availability of non-constitutional grounds).
¶15 Section 33-1551(C)(4) (1998) defines a “[r]ecreational user” as
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.
Golf is similar to the activities enumerated in this definition in that it is an outdoor
recreational pursuit included in the broad term “exercise.” See discussion supra ¶ 12.
But even if a person uses property recreationally, he nevertheless is not a recreational
11
user if he paid an admission fee in exchange for use of the property. The city makes
three arguments in an attempt to show that MacKinney did not pay an admission fee and
therefore was a recreational user.
¶16 The city first asserts MacKinney personally paid no fee to play golf;
instead, his son, with whom he was playing, paid a fee on his behalf. Although
MacKinney agreed with this assertion at his deposition, he later recanted it in an affidavit
submitted to the trial court with his “Separate Statement of Facts Re A.R.S. [§] 33-1551.”
However, any factual dispute as to whether MacKinney paid a fee himself is immaterial
to the question of whether he was a recreational user because “‘[a] fee does not
necessarily have to be paid by the injured party himself 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.’” Prince, 185 Ariz. at 46 n.5, 912 P.2d at 50 n.5, quoting
Reed v. City of Miamisburg, 644 N.E.2d 1094, 1095 (Ohio Ct. App. 1993). Thus, even if
MacKinney did not personally pay his fee, that does not determine whether he would
qualify as a recreational user.
¶17 The city additionally argues MacKinney was a recreational user for
purposes of the statute because his fee was paid to GolfNow, a third-party booking
service, rather than to the golf course. To support this argument, the city relies on
Andresano, 213 Ariz. 65, 138 P.3d 1192, in which we held that the plaintiff had not paid
an admission fee to participate in a fundraising event where the sponsoring organization
had paid a fee to hold the event at a county park but the individual participants had paid
12
nothing. Id. ¶¶ 5, 13-21. Specifically, we concluded that the plaintiff “was a ‘recreational
user’ because her permitted use of the . . . [p]ark facilities was ‘without the payment of an
admission fee or any other consideration’ by her or on her behalf.” Id. ¶ 20, quoting
§ 33-1551(C)(4) (1998). By contrast, it is undisputed that MacKinney was required to
pay a fee, whether to the city directly or to a third party, in order to enter the golf course
on the day of his injury. We therefore disagree with the city that MacKinney was a
recreational user as a matter of law simply because the fee was paid to “an independent
commercial venture” with which the city had a contractual relationship.
¶18 Finally, the city argues the fee paid on MacKinney’s behalf was a nominal
one and therefore exempt under § 33-1551(C)(4) (1998). In the 1998 amendment to
§ 33-1551, our legislature added the following sentence to the definition of
“[r]ecreational user”:
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.
1998 Ariz. Sess. Laws, ch. 22, § 1.5 We agree with the city that if MacKinney’s fee was
a nominal one used merely to offset the cost of providing the golf course and associated
5
Below, as he does on appeal, MacKinney supported his argument that the fee
charged was not “nominal” by relying on our holding in Prince that the payment of any
fee would exclude the payer from recreational-user status. 185 Ariz. at 46, 912 P.2d at
50. MacKinney’s reliance was misplaced, however, because the special exemption for
nominal fees was not added to § 33-1551 until 1998—well after Prince was decided. The
1998 addition thus superseded Prince on this point.
13
services, the payment of that fee would not affect his status as a recreational user for
purposes of the immunity statute.6 However, for the reasons detailed below, we cannot
agree with the city that the fee paid was necessarily “nominal” as a matter of law.
¶19 To classify the payer of a fee as a recreational user under the statute, the fee
must have two characteristics: it must be “nominal,” and it must be charged to offset the
cost of providing the recreational premises and associated services. § 33-1551(C)(4)
(1998). The city urges an alternative reading of the nominal-fee provision, arguing that it
was the legislature’s intent to define “nominal” as a fee charged to offset the cost of
providing the premises and associated services, rather than to express these as two
separate requirements. Although the statute is arguably ambiguous in this regard, the
city’s proposed resolution of the ambiguity fails for two reasons. When an ambiguity
exists in an immunity statute, we have a duty to interpret the statute narrowly to avoid
granting immunity that was not intended. Prince, 185 Ariz. at 45, 912 P.2d at 49. And,
when construing any statute, we look to its language and interpret it to give effect to each
word, “such that ‘no clause, sentence or word is rendered superfluous, void, contradictory
or insignificant.’” State ex rel. Dep’t of Econ. Sec. v. Hayden, 210 Ariz. 522, ¶ 7, 115
P.3d 116, 117 (2005), quoting Bilke v. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269, 271
6
MacKinney submitted in this court a request to file an addendum to his answering
brief in which he points to an acknowledgement by the city in response to his requests for
admissions that a portion of green-fees revenue is used for advertising purposes, and
argues for the first time that such use negates his status as a recreational user. The
argument was not raised below, however, and therefore is waived on appeal. Englert v.
Carondelet Health Network, 199 Ariz. 21, ¶ 13, 13 P.3d 763, 768 (App. 2000) (appellate
court does not consider issues raised for first time on appeal).
14
(2003); accord City of Tucson v. Clear Channel Outdoor, Inc., 218 Ariz. 172, ¶ 33, 181
P.3d 219, 230 (App. 2008) (“We avoid an interpretation that makes ‘any language
superfluous or redundant.’”), quoting Thomas & King, Inc. v. City of Phoenix, 208 Ariz.
203, ¶ 9, 92 P.3d 429, 432 (App. 2004). Not only would the city’s proposed
interpretation render the word “nominal” completely superfluous, but it also would
provide broad immunity that may not have been intended by the legislature.
Accordingly, absent language unambiguously expressing legislative intent to equate a
nominal fee with a fee used to offset the cost of providing the recreational premises, we
must read these as two separate requirements.
¶20 The legislature has not defined “nominal” for purposes of the recreational-
use immunity statute, nor has our research disclosed any case law addressing this issue.
The plain meaning of the word, when relating to a price or amount, is: “Insignificantly
small; trifling: [e.g.,] a nominal sum.” The American Heritage Dictionary 845; see also
Black’s Law Dictionary 1148 (9th ed. 2009) (“nominal” means “trifling, esp[ecially] as
compared to what would be expected”). The American Heritage Dictionary provides an
additional usage note: “Nominal in one of its senses means ‘in name only.’ Hence a
nominal payment is a token payment, bearing no relation to the real value of what is
being paid for. The word is often extended in use, especially by sellers, to describe a low
or bargain price.” Id. at 845. Although this does not provide a clear legal standard for
determining whether any particular fee is “nominal” for purposes of the recreational-use
immunity statute, unless and until the legislature speaks more definitively in this area, the
15
question can be answered only through a fact-specific inquiry that incorporates relevant
factors from the definition of “nominal” as that word is commonly understood.7 Whether
the fee charged by the golf course in this case fit within the definition of “nominal” was
disputed by the parties and, under the standard articulated above, is a mixed question of
law and fact that may require additional findings.8 See Prince, 185 Ariz. at 45, 912 P.2d
at 49 (trial court’s rulings, including whether plaintiff a recreational user under
§ 33-1551, involved mixed questions of law and fact). As MacKinney conceded at oral
argument in this court, because the trial court’s denial of summary judgment was based
on its conclusion that the golf course was not a “premises,” the question of whether the
fee was a nominal fee or an admission fee was never reached; the issue remains to be
determined.
Conclusion
¶21 A golf course is a “premises” covered by Arizona’s recreational-use
immunity statute, and thus the city may be entitled to immunity if MacKinney paid a
nominal fee rather than an admission fee, such that he was a recreational user under
7
Such factors might include, for example, the amount of the fee, the extent to
which it approximates the value of the service received in exchange for it, and the fees
charged for similar recreational uses in the community.
8
Although the trial court initially concluded that the nominal-fee question
presented an issue of fact for trial, upon remand this may or may not be the case. See
Filer v. Tohono O’Odham Nation Gaming Enter., 212 Ariz. 167, n.2, 129 P.3d 78, 80 n.2
(App. 2006) (trial court determines whether facts sufficient to establish immunity if no
disputed factual issues); Link v. Pima Cnty., 193 Ariz. 336, ¶ 18, 972 P.2d 669, 674 (App.
1998) (absent factual dispute, no need for jury determination of facts prior to determining
existence of immunity).
16
§ 33-1551. Because the trial court incorrectly concluded that the golf course was not a
premises, the determinative question of whether or not the fee was “nominal” never was
addressed or resolved below, and we are constrained to vacate the judgment and remand
this matter for further proceedings consistent with this decision.
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Judge
17