                                   IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


          JERRID ALLEN and JADE ALLEN, husband and wife,
                        Plaintiffs/Appellants,

                                       v.

  TOWN OF PRESCOTT VALLEY a Municipal Corporation of Arizona,
                    Defendant/Appellee.

                            No. 1 CA-CV 16-0728
                              FILED 3-13-2018


            Appeal from the Superior Court in Yavapai County
                        No. P1300CV201500935
               The Honorable Patricia A. Trebesch, Judge

                      REVERSED AND REMANDED


                                  COUNSEL

Mingus Mountain Law Group, PLLC, Prescott Valley
By Mark A. Kille
Co-Counsel for Plaintiffs/Appellants

Knapp & Roberts, PC, Scottsdale
By David L. Abney
Co-Counsel for Plaintiffs/Appellants

The Doyle Firm, PC, Phoenix
By William H. Doyle, Dwayne E. Ross
Counsel for Defendant/Appellee
                   ALLEN, et al. v. PRESCOTT VALLEY
                         Opinion of the Court



                                  OPINION

Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1             Jerrid Allen sustained serious head injuries playing softball in
a league sponsored by the Town of Prescott Valley. After Allen sued for
negligence, the superior court granted summary judgment to the Town
under the recreational-use immunity statute, Arizona Revised Statutes
("A.R.S.") § 33-1551 (2018).1 We hold the fee the Town charged Allen's team
to play in the league did not deprive the Town of the statute's protection,
but remand for a trial on whether the Town acted with gross negligence.

             FACTS AND PROCEDURAL BACKGROUND

¶2              The Town charged softball teams $270 each to play in an
eight-game league at Mountain Valley Park. The fee partially offset costs
the Town incurred in running the league, including field maintenance,
lighting and umpires. On the night Allen was hurt, two light standards in
the outfield were not functioning, and a fly ball hit Allen in the face after he
lost it in the dark. On summary judgment, Allen presented evidence that
the umpire the Town hired for the game could have postponed play due to
the malfunctioning lights but did not do so.

¶3            The superior court entered summary judgment for the Town,
reasoning that the fee Allen's team paid to play in the league was a "nominal
fee" within the meaning of § 33-1551(C)(5) and that Allen had not offered
evidence sufficient to show the Town acted with gross negligence. Allen
timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of
the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2018) and
-2101(A)(1) (2018).

                               DISCUSSION

¶4          Summary judgment may be granted "if the moving party
shows that there is no genuine dispute as to any material fact and the

1      Absent material revision after the relevant date, we cite the current
version of a statute or rule.


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                    ALLEN, et al. v. PRESCOTT VALLEY
                          Opinion of the Court

moving party is entitled to judgment as a matter of law." Ariz. R. Civ. P.
56(a). We review the superior court's entry of summary judgment de novo,
Dreamland Villa Community Club, Inc. v. Raimey, 224 Ariz. 42, 46, ¶ 16 (App.
2010), and construe all facts in favor of Allen, the nonmoving party,
Melendez v. Hallmark Ins. Co., 232 Ariz. 327, 330, ¶ 9 (App. 2013).

A.     "Recreational User" and "Nominal Fee."

¶5            Section 33-1551 offers limited immunity to a property owner
sued by a "recreational user." In relevant part, it provides:

       A. A public or private owner, easement holder, lessee, tenant,
       manager or occupant of premises is not liable to a recreational
       or educational user except on a showing that the owner,
       easement holder, lessee, tenant, manager or occupant was
       guilty of wilful, malicious or grossly negligent conduct that
       was a direct cause of the injury to the recreational or
       educational user.

                                 *       *       *

       C. For purposes of this section:

                                 *       *       *

       5. "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 . . . enter premises
       to . . . engage in . . . outdoor recreational pursuits. . . . 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.

¶6            Under this provision, a "recreational user" may recover
against a property owner in tort only upon proof of "wilful, malicious or
grossly negligent conduct." A.R.S. § 33-1551(A). At issue here is the
meaning of "recreational user," which the statute defines as one who enters
without "payment of an admission fee." A.R.S. § 33-1551(C)(5). The statute
provides that a "nominal fee that is charged . . . to offset the cost of . . . [the]
premises and associated services does not constitute an admission fee." Id.
Thus, as applied here, the Town enjoys qualified immunity from suit if the
fee it charged was "nominal" and imposed to offset the cost of the relevant


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                    ALLEN, et al. v. PRESCOTT VALLEY
                          Opinion of the Court

premises and services. MacKinney v. City of Tucson, 231 Ariz. 584, 590-91, ¶
19 (App. 2013).

¶7             Allen does not dispute that the fee the Town charged was
intended to "offset, in part, the costs incurred . . . in running the league." He
argues, however, that the fee was too high to be nominal. Whether a fee is
nominal under § 33-1551(C)(5) is a mixed question of law and fact that we
review de novo. MacKinney, 231 Ariz. at 591, ¶ 20 (mixed question); Link v.
Pima County, 193 Ariz. 336, 341, ¶ 18 (App. 1998) (court decides issue when
there is no factual dispute); State v. Ortiz, 238 Ariz. 329, 342, ¶ 60 (App. 2015)
(standard of review).

¶8             The statute does not define "nominal," and the dictionary does
not provide an objective meaning that can be readily applied across the
expanse between an obviously "nominal" fee and the obviously not. See
Black's Law Dictionary (10th ed.) (2014) at 1210 ("trifling, esp. as compared
to what would be expected"). When, as here, a statute does not define a
term that lacks an objective meaning, we try to discern the legislature's
intent by looking "to the statute's history, context, consequences, and
purpose." Wilks v. Manobianco, 237 Ariz. 443, 446, ¶ 8 (2015); see Mail Boxes
v. Indus. Comm'n of Arizona, 181 Ariz. 119, 122 (1995) (when statute "does
not expressly provide a clear definition" of a term, court "must define it in
a way that avoids absurdity and fulfills the legislature's purpose").
Moreover, because the statute limits common-law liability, we strictly
construe it to avoid granting unintended immunity from suit. Stramka v.
Salt River Recreation, Inc., 179 Ariz. 283, 285 (App. 1994). On the other hand,
we must try to give effect to the purpose of the statute, which was "to
encourage landowners to open their lands to the public for recreational
use." Dickey ex rel. Dickey v. City of Flagstaff, 205 Ariz. 1, 2, ¶ 7 (2003).

¶9             Here, the statute's history shows that the purpose of the
"nominal fee" provision is to ensure that a property owner does not lose the
statute's protection by charging a fee on the order of what the Town charged
Allen's team. The legislature added the "nominal fee" language to § 33-1551
in response to this court's opinion in Prince v. City of Apache Junction, 185
Ariz. 43 (App. 1996). S.B. 1116, 43d Leg., 2d Reg. Sess., Ariz. Laws 1998, Ch.
22, § 1. In Prince, we addressed a negligence claim brought by a softball
player injured during a city-league game. 185 Ariz. at 44. We reversed the
superior court's dismissal of the claim, reasoning that the $250 fee the city
charged each team was an "admission fee" that rendered § 33-1551
inapplicable. 185 Ariz. at 45-47.




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                   ALLEN, et al. v. PRESCOTT VALLEY
                         Opinion of the Court

¶10           Two years later, the legislature amended § 33-1551 by adding
the provision that a property owner would not lose the protection of the
statute by charging a "nominal fee" to maintain the premises and associated
services. A.R.S. § 33-1551(C)(1), (5). The Senate fact sheet for the 1998
amendment cited Prince, explaining that decision had called into question
whether cities should charge even a "nominal fee" for the use of public
parks and fields.2 The implication of the fact sheet was that the amendment
would have applied to the $250 fee the city charged the team in Prince. That
being the case, we conclude that the $270 the Town charged Allen's team
likewise was a "nominal fee" within the meaning of the statute.

¶11            Allen's argument to the contrary is that, apart from the
statute's history, the $270 his team paid to play in the league is not a
"nominal" charge for "the average person[] . . . to enter a field to play
softball." But the "recreational user" in this case whose claim might be
subject to § 33-1551(A) is Allen, not his team. For that reason, whether his
claim falls within the statute depends on whether the fee effectively
charged him is "nominal." The $270 the Town charged a team allowed each
of the team's players to enter the field for eight games over the course of the
league season. The Town calculates that the fee amounted to $2.81 per
player per game, an assertion Allen does not question. The Town could
have charged each player in the league on a per-game basis; that it chose to
more efficiently bill one representative of each team for the entire season
does not change the analysis. Nor does it matter for this purpose that Allen


2      The fact sheet stated:

       A recent Court of Appeals decision (Prince v. City of Apache
       Junction) held that if a fee is charged -- even a nominal fee to
       offset the costs of electricity, umpires, etc. -- that the liability
       protection would not apply.

       Proponents of S.B. 1116 state that this decision has created a
       negative financial impact upon cities and towns, by creating
       a disincentive to charge a nominal fee for the use of their
       recreational facilities. They hope that this legislation will
       remove the disincentive to charge fees.

Senate Fact Sheet, S.B. 1116, 43d Leg., 2d Reg. Sess., (Feb. 13, 1998),
https://www.azleg.gov/legtext/43leg/2r/summary/s.1116.jud.htm; see
State v. Payne, 223 Ariz. 555, 563, n.5, ¶ 25 (App. 2009) ("Arizona courts have
cited Senate fact sheets as relevant legislative history and as reflective,
though not dispositive, of legislative intent.").


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                   ALLEN, et al. v. PRESCOTT VALLEY
                         Opinion of the Court

himself paid most of the fee the Town charged his team and that most of
his teammates did not reimburse him their shares of the total.

¶12          In sum, based on the statute's history, and viewed on a per-
player, per-game basis, the fee the Town charged was a "nominal fee"
within the meaning of A.R.S. § 33-1551(C)(5).

B.     Gross Negligence.

¶13           Because the fee the Town charged was nominal, as applied
here, the statute bars Allen from recovering unless he can show that the
Town "was guilty of wilful, malicious or grossly negligent conduct." A.R.S.
§ 33-1551(A). Allen argues the Town acted with gross negligence, which
the statute defines as "knowing or reckless indifference to the health and
safety of others." A.R.S. § 33-1551(C)(2).

¶14            The superior court ruled Allen failed to offer evidence
sufficient to create a genuine issue of fact concerning gross negligence. On
appeal, the Town contends Allen waived his right to recover under § 33-
1551 by not expressly pleading "gross negligence" in his complaint and by
failing to reference "gross negligence" in his disclosure statement. As to
Allen's complaint, the issue of qualified immunity under § 33-1551 was not
implicated until the Town asserted it in its answer. The Town offers no
authority for the proposition that at that point, Allen was obligated to move
for leave to amend his complaint to add a claim for "gross negligence." As
for Allen's disclosures, the issue is whether the facts he disclosed were
sufficient to prove the Town breached a gross negligence standard of care,
not whether he disclosed a claim specifically labeled "gross negligence." See
D. Dobbs, P. Hayden & E. Bublick, The Law of Torts (2d ed.) (2011) § 140,
at 437 ("gross negligence . . . is sometimes a standard adopted in statutes to
limit defendants' liability").

¶15           On the merits, Allen argues the superior court erred by ruling
he failed to offer evidence sufficient to establish gross negligence, which
normally presents a question of fact for the jury. See S. Pac. Transp. Co. v.
Lueck, 111 Ariz. 560, 563 (1975) ("Where the evidence discloses several acts
of negligence, whether gross or wanton negligence is established is a matter
for the jury."). "In order to present such an issue to the jury, gross
negligence need not be established conclusively, but the evidence on the
issue must be more than slight and may not border on conjecture." Walls v.
Ariz. Dep't of Pub. Safety, 170 Ariz. 591, 595 (App. 1991); see Smith v.
Chapman, 115 Ariz. 211, 215-16 (1977) (reversing directed verdict on gross
negligence).



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                   ALLEN, et al. v. PRESCOTT VALLEY
                         Opinion of the Court

¶16           Allen asserts that the "knowing or reckless indifference"
definition in § 33-1551(C)(2) establishes a lesser burden for proving gross
negligence than the common-law standard of gross negligence. We
disagree. See Armenta v. City of Casa Grande, 205 Ariz. 367, 372-73, ¶ 20 (App.
2003) (citing Williams v. Thude, 180 Ariz. 531, 539 (App. 1994), remanded on
other grounds, 188 Ariz. 257 (1997) (defining "reckless indifference")); Rev.
Ariz. Jury Inst. Civ., Negligence 10 (2013) (defining "willful or wanton
conduct"). Nevertheless, we conclude Allen offered evidence sufficient to
create a genuine issue as to whether the Town acted with gross negligence,
rendering summary judgment improper.

¶17            In response to the Town's motion, Allen presented evidence
that the lights on two standards were not functioning at game time, causing
"dark spots" in the outfield, and that the Town had known of the issue for
three to five days. He also showed that the umpire the Town hired could
have postponed the game due to the lighting issues but did not do so.
Viewed in a light most favorable to Allen, a reasonable juror could conclude
the Town acted knowingly or with reckless indifference by failing to either
timely repair the malfunctioning lights or halt play until the lights were
repaired. See, e.g., Noriega v. Town of Miami, 243 Ariz. 320, ___, ¶ 41 (App.
2017) (reversing summary judgment on gross negligence claim when
"reasonable minds could disagree . . . that [the defendant's] conduct simply
did not rise to the level of gross negligence.").

                               CONCLUSION

¶18           For the reasons stated, we conclude that under A.R.S. § 33-
1551(C)(5), Allen was a "recreational user" and the fee the Town charged his
team was "nominal." As applied, therefore, Allen can prevail only if he can
show the Town acted with gross negligence. We also conclude that Allen
offered evidence sufficient to create a genuine issue as to gross negligence.
Accordingly, we reverse the judgment in favor of the Town and remand for
further proceedings consistent with this opinion.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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