                    SUPREME COURT OF ARIZONA
                             En Banc

WILLIAM H. DICKEY, on his own    )      Arizona Supreme Court
behalf and as Guardian Ad Litem  )      No. CV-99-0273-PR
of the minor child WILLIAM       )
DICKEY; REBECCA CARLSON DICKEY,  )      Court of Appeals
wife of WILLIAM H. DICKEY; and   )      Division One
JANE DOE, natural mother of      )      No. 1 CA-CV 98-0026
minor WILLIAM DICKEY,            )
                                 )      Coconino County
           Plaintiffs-Appellants,)      Superior Court
                                 )      No. CV 95-0564
                v.               )
                                 )
CITY OF FLAGSTAFF, a municipal   )
corporation,                     )
                                 )      O P I N I O N
              Defendant-Appellee.)
                                 )

        Appeal from the Superior Court in Coconino County
             The Honorable J. Michael Flournoy, Judge

                            AFFIRMED

          Opinion of the Court of Appeals, Division One
              197 Ariz. 422, 4 P.3d 965 (App. 1998)

                             VACATED

Dale H. Itschner                                          Flagstaff
and
Jerry L. Smith                                            Flagstaff
Attorneys for Plaintiffs-Appellants

MANGUM WALL STOOPS & WARDEN, P.L.L.C.                     Flagstaff
     by   Daniel J. Stoops
Attorneys for Defendant-Appellee

ARIZONA TRIAL LAWYERS ASSOCIATION                           Phoenix
     by   Amy G. Langerman
Attorneys for Amicus Curiae, Arizona
     Trial Lawyers Association
B E R C H, Justice

¶1        This case presents a challenge to the constitutionality

of Arizona’s recreational use statute, Ariz. Rev. Stat. (“A.R.S.”)

§ 33-1551 (2000).1   We conclude, as did the trial and appellate

courts, that the law is constitutional.

                               FACTS2

¶2        On January 7, 1995, William Dickey’s step-mother took

ten-year-old William and two of his siblings to go sledding.           She

saw people on Mars Hill in Thorpe Park in Flagstaff, so she dropped

the children off and left to park the car.         While she was gone,

William began sliding down Mars Hill on a rubber tube.            About a

quarter of the way down the hill on his first run, William crashed

into a tree and was severely injured.

¶3        Although   Mars   Hill   had   been   used   as   a   wintertime

recreational area since the early days of the City, the City had

posted signs warning that Mars Hill was unsafe for sledding.           The

evidence conflicts on whether the signs were in place on the day of



     1
          This opinion refers to the current version of A.R.S. §
33-1551, which is essentially the same as that in effect at the
relevant time.
     2
           Because summary judgment was granted to the City, we
review the facts in the light most favorable to Petitioners, the
parties against whom summary judgment was entered. See Orme Sch.
v. Reeves, 166 Ariz. 301, 309-10, 802 P.2d 1000, 1008-09 (1990)
(subscribing to the views of Justice White in Anderson v. Liberty
Lobby, 477 U.S. 242, 255, 106 S. Ct. 2505, 2513 (1986) (citations
omitted)).

                                   -2-
the accident.

¶4          William’s parents, the Petitioners, sued the City to

recover for William’s injuries.                  The City defended on the ground

that,    because   the     Park        was   held    open     for    recreational         use,

Petitioners    could       not    prevail        unless     they     showed    that       city

employees had been grossly negligent or had wilfully or maliciously

caused injury to William. The trial court granted summary judgment

for the City, finding that Petitioners failed to present any

evidence that the City had acted wilfully, maliciously, or grossly

negligently.        The     trial        court      further    determined          that    the

recreational use statute did not abrogate William’s negligence

cause of action and therefore did not violate Article 18, Section

6, of the Arizona Constitution.

¶5          The    court    of        appeals    affirmed.          Dickey    v.    City    of

Flagstaff, 197 Ariz. 422, 430, ¶¶ 36-37, 4 P.3d 965, 973 (App.

1999).    We granted review to decide whether the recreational use

statute’s requirement that a plaintiff show gross negligence or

wilful or malicious conduct abrogates a cause of action that

William would have otherwise enjoyed, in violation of the anti-

abrogation    provision          of    the   Arizona      Constitution.             We    have

jurisdiction pursuant to Article 6, Section 5(3), of the Arizona

Constitution and A.R.S. § 12-2101 (1994).




                                             -3-
                                   DISCUSSION

      A.    The Recreational Use Statute

¶6          Arizona’s recreational use statute, A.R.S. § 33-1551,

limits a landowner’s liability to parties injured while on the land

for recreational purposes. It provides that the owner of land held

open for public use “is not liable to a recreational or educational

user except upon a showing that the owner . . . was guilty of

wilful, malicious or grossly negligent conduct which was a direct

cause of the injury to the recreational or educational user.”              Id.

§ 33-1551(A).      The statute defines grossly negligent conduct as

conduct that demonstrates “a knowing or reckless indifference to

the health and safety of others.”           Id. § 33-1551(C)(2).

¶7          The statute, based on a model act proposed by the Council

of State Governments, was first enacted here in 1983.            See Ward v.

State, 181 Ariz. 359, 361-62, 890 P.2d 1144, 1146-47 (1995).               Its

purpose is to encourage landowners to open their lands to the

public for recreational use.          Id. at 362, 890 P.2d at 1147.        It

accomplishes this goal by “limiting their liability toward persons

entering thereon for such purposes.”          Id. (quoting Suggested State

Legislation on Public Recreation on Private Lands, 24 Council of

State Governments 150 (1965)).         Since the publication of the model

act   in   1965,   all   fifty    states   have   enacted   recreational   use

statutes limiting the liability of landowners who open their land

to recreational users.           Terrence J. Centner, Tort Liability for

                                      -4-
Sports and Recreational Activities:        Expanding Statutory Immunity

for Protected Classes and Activities, 26 J. Legis. 1, 2 (2000)

(citing the recreational use statutes of all fifty states).

     B.   The Constitutionality of the Recreational Use Statute

          1.   The Anti-Abrogation Provision.

¶8        William argues that the recreational use statute is

unconstitutional because it deprives him of the right to bring a

lawsuit   sounding    in   simple   negligence    against   the    City    of

Flagstaff. Instead, because of the statute, he must prove that the

City was grossly negligent, in violation, he maintains, of the

anti-abrogation provision of the Arizona Constitution.                Ariz.

Const. art. 18, § 6.

¶9        The anti-abrogation provision states that “[t]he right of

action to recover damages for injuries shall never be abrogated,

and the amount recovered shall not be subject to any statutory

limitation.”    Id.        It   protects   from   legislative     repeal   or

revocation those tort actions that “either existed at common law or

evolved from rights recognized at common law.”         Cronin v. Sheldon,

195 Ariz. 531, 539, ¶ 39, 991 P.2d 231, 239 (1999); see also

Boswell v. Phoenix Newspapers, Inc., 152 Ariz. 9, 14, 730 P.2d 186,

191 (1986) (observing that the anti-abrogation provision extends

the right to recover damages for injuries to all actions existing

under the common law); Morrell v. City of Phoenix, 16 Ariz. 511,

517, 147 P. 732, 735 (1915) (superseded by statute) (finding that

                                    -5-
the     anti-abrogation       provision      preserves   those   “rights   already

cognizable by law, and does not undertake to create new rights of

action”).        Therefore, to fall within the protection of the anti-

abrogation provision of the Arizona Constitution, William’s right

of action for simple negligence against the City must have existed

at common law or have found its basis in the common law at the time

the constitution was adopted.             See Cronin, 195 Ariz. at 539, ¶ 39,

991 P.2d at 239.          We conclude that William has failed to establish

that        a   right    of   action   for    simple     negligence,   against   a

municipality engaged in a governmental function, existed at common

law.3

                2.      Municipal Liability Under the Common Law.

¶10             In 1913, a year after Arizona’s statehood and three years

after the Arizona Constitution was drafted, a treatise on municipal

law reported that cities engaged in governmental functions were not

subject to liability for negligence:




        3
          Although negligence suits certainly have their basis in
common law, governments generally enjoyed sovereign immunity from
suits sounding in tort, a tradition that carried over to this
country. See Stone v. Ariz. Highway Comm’n, 93 Ariz. 384, 389, 381
P.2d 107, 110 (1963) (quoting State v. Sharp, 21 Ariz. 424, 426,
189 P. 631, 632 (1920), for the proposition that “it is well
settled by the great weight of authority that the state, in
consequence of its sovereignty, is immune from prosecution in the
courts and from liability to respond in damages for negligence,
except in those cases where it has expressly waived immunity or
assumed liability by constitutional or legislative enactment”); see
also ¶¶ 10-13, infra (discussing common-law treatment of suits
against municipalities engaged in governmental functions).

                                          -6-
             The rule is firmly established in our law that
             where the municipal corporation is performing
             a duty imposed upon it as the agent of the
             state in the exercise of strictly governmental
             functions, there is no liability to private
             action on account of injuries resulting from
             the wrongful acts or negligence of its
             officers or agents thereunder, unless made
             liable by statute. In other words, unless a
             right of action is given by statute, municipal
             corporations may not be held civilly liable to
             individuals for “neglect to perform or
             negligence in performing” duties which are
             governmental in their nature, and including
             generally all duties existent or imposed upon
             them by law solely for the public benefit.

6 Eugene McQuillin, MUNICIPAL CORPORATIONS § 2623 (1913) (footnote

omitted).       Two   years   later,     this   court   upheld   municipal

governmental immunity, finding that the City of Phoenix could not

be held liable for the mere negligence of its employees.           Morrell

v. City of Phoenix, 16 Ariz. 511, 517, 147 P. 732, 735 (1915).          In

doing so, the court observed that it was “quite certain that it was

the intention of the legislature of the territory of Arizona . . .

that Phoenix should be immune from damages for injuries or loss

occasioned by or through the malfeasance, misfeasance or neglect of

duty of any of its officers or other authorities.”        Id. at 512, 147

P. at 733.

¶11         In Morrell, a city employee sued the City of Phoenix for

assigning to him a sprinkling cart pulled by a team of unruly

horses, which bolted and dragged him through the city streets,

resulting in the serious injuries.        Id.   The city defended that it

was exempted from suit by a clause in its charter that immunized

                                   -7-
the city from liability for simple negligence, while leaving the

city liable for “willful neglect, . . . gross negligence or willful

misconduct.”    Id. at 513, 147 P. at 733.

¶12       The plaintiff claimed there, as the Petitioners do here,

that the immunity provision violated Article 18, Section 6 of the

Arizona Constitution.      Id. at 517, 147 P. at 735.   This court found

that the plaintiff’s position was “not tenable, for the reason that

said section only undertakes to preserve rights already cognizable

by law, and does not undertake to create new rights of action.”

Id.   This decision demonstrates that municipalities were immune

from civil suits for ordinary negligence at common law.4

¶13       Ten years later, this court again spoke on the subject of

municipal immunity in Jones v. City of Phoenix, 29 Ariz. 181, 239

P. 1030 (1925), overruled in part by Stone v. Arizona Highway

Commission, 93 Ariz. 384, 381 P.2d 107 (1963).          In Jones, a city

employee sued the City of Phoenix.        Id. at 181-82, 239 P. at 1030-

31.   The court determined that the city’s liability turned upon

whether   the   function     in   which   the   city   was   engaged   was

“proprietary” or “governmental” because when a municipality was

“acting in its governmental capacity, it had the exemptions of the



      4
          Phoenix’s immunity was later repealed by removing the
immunity provision from the city charter. See City of Phoenix v.
Williams, 89 Ariz. 299, 303-04, 361 P.2d 651, 654-55 (1961). We
cite Morrell here only for the proposition that sovereign immunity
was the law in 1915.

                                    -8-
sovereignty.”      Id. at 183, 239 P. at 1031.                The court concluded

that the rule was “of such almost universal acceptance . . . that

we accept it as the undoubted law of Arizona.”                  Id.

¶14        Almost    forty       years   later,      this   court     abolished   the

common-law rule of sovereign immunity. See Stone, 93 Ariz. at 387,

381 P.2d at 109.          In doing so, however, we acknowledged that

municipalities acting in a governmental capacity had historically

been immune from negligence actions.                 Id. at 388-89, 381 P.2d at

109-10.    Moreover, we invited the legislature to enact laws to

protect the public and those it deemed “necessary to avoid a severe

hampering of a governmental function or thwarting of established

public policy.”      Ryan v. State, 134 Ariz. 308, 310-11, 656 P.2d

597, 599-600 (1982) (modified by statute as stated in Tucson

Unified Sch. Dist. v. Owens-Corning Fiberglas Corp., 174 Ariz. 336,

339, 849 P.2d 790, 793 (1993)).                 The legislature accepted the

court’s invitation and, among other acts, passed the recreational

use statute.

¶15        Arizona is not the only state with a constitutional anti-

abrogation provision to find that the provision protects only those

rights of action in existence when it was adopted.                  See, e.g., N.Y.

Const. art. 1, § 16; Okla. Const. art. 23, § 7; Utah Const. art.

16, § 5; see also Wilson v. Gipson, 753 P.2d 1349, 1353-55 (Okla.

1988)   (holding    that   a     tort    reform      act   limiting    recovery   for

wrongful   death    did    not    violate      the    anti-abrogation     provision

                                         -9-
because the right to recover for wrongful death did not exist at

common law); Tiede v. State, 915 P.2d 500, 504 (Utah 1996) (holding

that “the scope of protection afforded by the [anti-abrogation]

provision is limited to rights of action that existed at the time

the provision was adopted”).

¶16           This court has stated that if the provisions of another

state’s      constitution      are   similar     in   nature    and     meaning   to

provisions in Arizona’s Constitution, then the decisions of the

judiciary in those states should be considered “very persuasive” in

interpreting Arizona’s similar provision. Faires v. Frohmiller, 49

Ariz. 366, 371-72, 67 P.2d 470, 472 (1937) (superseded by statute

as stated in Ward v. Stevens, 86 Ariz. 222, 230, 344 P.2d 491, 496

(1959)). Arizona’s anti-abrogation provision is based on a similar

provision in the Oklahoma Constitution.                 See Bryant v. Cont’l

Conveyor & Equip. Co., 156 Ariz. 193, 199, 751 P.2d 509, 515 (1988)

(Feldman,      V.C.J.,     dissenting)     (criticizing      the    majority      for

ignoring a case on point from Oklahoma “constru[ing] the parent

constitutional       clause”    of   our   own    anti-abrogation       provision),

overruled by Hazine v. Montgomery Elevator Co., 176 Ariz. 340, 344,

861   P.2d    625,   629    (1993).        We    therefore     review    Oklahoma’s

assessment     of    its   anti-abrogation        provision’s      application     to

municipal liability.

¶17          In Wilson v. Gipson, the Oklahoma Supreme Court upheld

that state’s Political Subdivision Tort Claims Act’s protection of


                                       -10-
a school district against a claim that the Act violated Oklahoma’s

anti-abrogation provision.        753 P.2d at 1355.       The case arose when

five   school   children   and    a    teacher    were   killed     in   a   boiler

explosion at an elementary school.             Id. at 1350.       The Political

Subdivision     Tort   Claims    Act   limited    the    parents’    damages    to

approximately $18,000 per family. Id. The parents argued that the

limitation violated the anti-abrogation provision of the Oklahoma

Constitution which states, much as Arizona’s provision does, that

“[t]he right of action to recover damages for injuries resulting in

death shall never be abrogated, and the amount recoverable shall

not be subject to any statutory limitation.”              Id. at 1354 (citing

Okla. Const. art. 23, § 7) (emphasis in original).                  The Oklahoma

Supreme Court held that while the anti-abrogation provision was

designed “to embody into the fundamental law, the constitution, the

statutory right of action for wrongful death,” it nonetheless did

not apply to public entities because “as a part of the sovereignty

of Oklahoma, [school districts] were entitled to sovereign immunity

when Art. 23, § 7 was adopted.”               Id. (citations omitted).          The

court therefore concluded that the anti-abrogation provision did

not protect a right to sue for damages that did not exist when the

Oklahoma Constitution was adopted.            Id. at 1355.

¶18        Similarly,      Arizona’s     anti-abrogation       provision       was

designed to protect rights of action in existence at the time it

was adopted, but not necessarily those later created. See Morrell,


                                       -11-
16 Ariz. at 517, 147 P. at 735.                 Accordingly, because a suit

against a city for simple negligence could not have been maintained

at the time the anti-abrogation provision was instituted, it is not

protected    by   that   provision,       if   the   city   was   acting   in   its

governmental capacity.      We therefore turn to the latter question.

             3.    Was the Maintenance of Thorpe Park a Governmental
                   Function?

¶19          At the time Arizona’s Constitution was written, the

common-law rule was that “there is no municipal liability for

negligence in connection with public buildings or other property

used exclusively for public purposes and from which no income is

received.”      McQuillin, supra ¶ 10, § 2672.

¶20          The cases cited in McQuillin suggest that in determining

whether   the     maintenance   of    a    public    park   is    a   governmental

function, courts should examine whether the government charges an

admission fee or otherwise derives revenue from the use of the park

and whether the park is held open to all.              See id. § 2678 (citing,

among other cases, Russell v. City of Tacoma, 35 P. 605, 606-07

(Wash. 1894)).      In those cases in which maintenance of parks has

been found to be a proprietary function, the government usually

leased the park or otherwise generated revenue from its use, a

typically proprietary action.         See Russell, 35 P. at 606.

¶21          Although the case is more than 100 years old, the Russell

court’s analysis reflects the analysis courts applied in that era



                                      -12-
and     still      apply   to   distinguish     park   operations     that    are

governmental from those that are not.           See id. at 606-07.     When the

city receives no revenue and the park is available to all citizens,

the operation and maintenance has been held to be a governmental

function, while limiting access to the park or generating revenue

from    it   has    led    courts   to   conclude   that   the   government   was

operating the park in a proprietary manner.            Id.; see also Board of

Park Comm’rs of City of Louisville v. Prinz, 105 S.W. 948 (Ky. Ct.

App. 1907) (holding that a municipality was not liable for injury

in a city park that was held open to the general public and from

which the city received no revenue, but noting that the city might

be liable if the city restricted access or gained revenue from use

of the park); Bisbing v. City of Asbury Park, 78 A. 196 (N.J. Err.

& App. 1910) (same); cf. City of Denver v. Spencer, 82 P. 590

(Colo. 1905) (holding city liable for an injury suffered on park

bleachers when the city received revenue from licensing the sale of

beverages at the park).

¶22          In this case, the City of Flagstaff did not charge an

admission fee or otherwise derive revenue from the public’s use of

Thorpe Park.         As did the City of Tacoma in the Russell case,

Flagstaff obtained the land that is now Thorpe Park from the

federal government on the stipulation that it be used as a public

park.    The Park is so used and is open to all who come there, not

just to the residents of Flagstaff.                 Indeed, the Petitioners


                                         -13-
themselves were residents of Prescott, not Flagstaff.               These

factors lead us to conclude that the operation and maintenance of

Thorpe Park at the time William was injured were governmental in

nature.

¶23        In sum, we conclude that the City holds Thorpe Park open

to the public for recreational use.        Its maintenance of the Park is

a   governmental   function;   as   such,   the   Government’s   acts   are

shielded by the recreational use statute.            Because the City’s

stewardship of the Park was governmental in nature, the City would

have been immune at common law from tort liability for acts of

ordinary negligence arising from its maintenance of the Park.

Therefore, we hold that because Petitioners would have had no

action when the anti-abrogation provision was adopted, the limited

immunity afforded to the City of Flagstaff by the recreational use

statute did not wrongfully abrogate Petitioners’ right to sue the

City for negligence.

                               CONCLUSION

¶24        Based on the foregoing, we vacate the opinion of the

court of appeals and reinstate the judgment of the trial court.




                           Rebecca White Berch, Justice

CONCURRING:



Charles E. Jones, Chief Justice

                                    -14-
Ruth V. McGregor, Vice Chief Justice



Michael D. Ryan, Justice




F E L D M A N, Justice (retired), dissenting

¶25         The court today concludes that because of the doctrine of

sovereign immunity, the “right of action for simple negligence,

against a municipality engaged in a governmental function [did not

exist] at common law.”     Opinion at ¶ 9; see also ¶ 17.       The court

goes on to adopt a rule of municipal sovereign immunity for simple

negligence when performing governmental functions. Thus, the court

holds the recreational use statute, A.R.S. § 33-1551, does not

violate the anti-abrogation clause contained in Article 18, Section

6 of the Arizona Constitution when applied to such municipalities.

I dissent from these conclusions for several reasons.

¶26         First, I do not agree that the anti-abrogation clause is

inapplicable    to   actions   for    negligence   against   governmental

entities.   This issue was addressed in my dissent in Clouse ex rel.

Clouse v. State, 199 Ariz. 196, 204-15 ¶¶ 30-79, 16 P.3d 757, 765-

76 ¶¶ 30-79 (2001) (Feldman, J., dissenting).         The reasons given

there need not be repeated here.

¶27         Next, the majority holds that the protection of Article



                                     -15-
18, Section 6 does not apply because at common law there was no

right of action in Arizona “for simple negligence[] against a

municipality engaged in a governmental function.”           Opinion at ¶ 9,

relying primarily on Morrell v. City of Phoenix, 16 Ariz. 511, 147

P. 732 (1915).      But Morrell does not support that conclusion.        The

doctrine of sovereign immunity is not mentioned in Morrell; the

basis for the holding that Morrell had no cause of action against

the City of Phoenix was that prior to adoption of our constitution

and its anti-abrogation clause, the Phoenix city charter contained

an immunity provision that had been approved by the legislature in

the 1881 grant of the charter.       Thus, no right of action against

the City of Phoenix existed at common law prior to or at the time

our constitution went into effect.         Id. at 512-13, 147 P. at 733.

Thus, I disagree with the majority’s conclusion that Morrell

“demonstrates that municipalities were immune from civil suits for

ordinary negligence at common law.”          Opinion at ¶ 12.5      Morrell

demonstrates only that the City of Phoenix was immune by charter

provision, so that no action could have been maintained against it

when Article 18, Section 6 was adopted.         Article 18 protects only

those     “rights   already   cognizable   by   law”   at   the   time   our

constitution was adopted.      Morrell, 16 Ariz. at 517, 147 P. at 735.

¶28          No case in Arizona has ever explicitly addressed the



      5
        Indeed, the Phoenix ordinance was later repealed.                See
opinion at ¶ 12 n.3.

                                   -16-
question of whether the anti-abrogation clause was applicable to

actions against a municipality.          It is notable that in Clouse the

majority did not adopt the state’s argument that actions against

governmental entities were outside the protection of Article 18,

Section 6 but instead based the state’s immunity on the specific

provisions of the claims clause of Article 4 of the constitution.

The   court   held     that    Article        4   provided     independent    and

particularized grounds for the conclusion that the legislative

branch might reinstate sovereign immunity as to claims against the

state should it desire to do so.         Clouse, 199 Ariz. at 207 ¶ 24, 16

P.3d at 768 ¶ 24.      But Article 4 is inapplicable to municipalities

because it provides only that the legislature may regulate suits

against the state.      Ariz. Const. art. IV, pt. 2, § 18.              The suit

that is the subject of the present case is not against the state

but against the City of Flagstaff. Municipalities have always been

considered entities separate from the state.

¶29         Finally,    I   disagree    with      the   court’s    decision   that

running an admission-free park is a governmental function. Opinion

at    ¶¶      22-23.          Arizona’s       law       on   the   question    of

governmental/proprietary functions is, to put it tactfully, a

morass.    See Clouse, 199 Ariz. at 213-14 ¶¶ 74-77, 16 P.3d at 774-

75 ¶¶ 74-77 (Feldman, J., dissenting). There was, in fact, “utmost

confusion” about what was governmental and what was proprietary.

Jones v. City of Phoenix, 29 Ariz. 181, 183, 239 P. 1030, 1031


                                       -17-
(1925).   Today’s opinion will do little to cure that problem.



                               ___________________________________
                               STANLEY G. FELDMAN, Justice (retired)




                               -18-
