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Prince v. City of Apache Junction2/15/1996
PELANDER, Judge. This is a personal injury action against the City of Apache Junction. The issues are whether the city can claim immunity under Arizona's recreational use statute, A.R.S. § 33-1551 (1993), and, if so, whether that statute violates article 18, § 6 of the Arizona Constitution. The trial court ruled that the statute was applicable and constitutional, and therefore granted the city's motion to dismiss filed under Ariz. R. Civ. P. 12(b)(6), 16 A.R.S. For the reasons stated below, we reverse and remand.
PROCEDURAL BACKGROUND
Plaintiff's complaint alleged that on November 16, 1993, he was a public invitee on a softball field at Prospector City Park (the park), playing league softball as a member of a trucking company softball team. The park was owned and operated by the city. Plaintiff further alleged that he was seriously injured when he struck his head on a portion of the backstop which projected out from the third base line fence, and that that was an unreasonably dangerous condition which the city negligently failed to remedy or protect him from.
The city moved for dismissal under Rule 12(b)(6), contending that "plaintiff can prove no set of facts that would entitle him to relief, because A.R.S. § 33-1551 grants the City civil immunity under these circumstances." That statute, as amended in 1993 and applicable to this case, provides in pertinent part as follows:
A. A public or private owner, easement holder, lessee or occupant of a 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.
B. As used in this section:
2. "Premises" means 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-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.
3. "Recreational User" means a person to whom permission has been granted or implied without the payment of an admission fee or 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 other consideration as provided in this section.
In granting the city's motion, the trial court determined that "the softball field, which was the only property in issue, was in fact the premises," and that "plaintiff was a recreational user" under § 33-1551. In later denying plaintiff's motion for reconsideration, the trial court indicated that it "did consider the Constitutionality of the statute and declined to rule it unconstitutional." This appeal followed.
STANDARD OF REVIEW
Although the city and the trial court characterized the city's motion as one to dismiss for failure to state a claim, the parties submitted affidavits and other evidence to support their positions before the court ruled. The court did not strike that evidence and gave plaintiff more time to conduct discovery and to file opposing affidavits. It is unclear from the record whether or to what extent
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