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Mackinney v. City of Tuscon - 3/13/2013

Arizona Court of Appeals Division Two Holds That The Term “Premises” Under Arizona’s Recreational Use Statute, A.R.S. § 33-1551, Includes a Golf Course.


After suffering an injury while golfing with his son at a city-owned course, Mackinney sued the city of Tucson for negligence.  The city moved for summary judgment, arguing that it was immune under Arizona’s recreational use statute.  Mackinney argued that a golf course does not qualify as a “premises” and that he was not a “recreational user” because he paid a fee to enter and use the course.  At the time of the injury, Section 33-1551(A) provided in pertinent part that an owner “of premises,” subject to certain exceptions not applicable here, “is not liable to a recreational or educational user . . . .”  The trial court denied the motion, explaining that the golf course did not qualify as a “premises,” but that an issue of fact did exist as to whether Mackinney paid a “nominal” fee to use the course.  The jury awarded Mackinney $54,000, after allocating a majority of the fault to Mackinney.  The city appealed the trial court’s denial of the city’s motion. 

The Court of Appeals held that the legislature intended to include a golf course as “premises” in A.R.S. § 33-1551(C)(3) (1998)[1] for several reasons.  First, the legislature is presumed to be aware of existing law when it enacts or modifies a statute.  The legislature had amended the statute in 1993 to include park lands, and at that time, case law had already established that golf courses are parks or similar to parks.  Second, the 1993 amendments significantly expanded the definition of “premises” from the previous version of the statute discussed by the Court of Appeals in Walker v. City of Scottsdale, 163 Ariz. 206, 208­–09, 786 P.2d 1057, 1059–60 (App. 1989).  Finally, in light of this expansive definition, the common definitions of “park” and “golf” support a finding that a golf course is sufficiently similar to park lands so as to be included in the term “premises.” 

The Court of Appeals also held that the fee paid to qualify as a “recreational user” must be both (i) nominal and (ii) charged to offset the cost of providing the recreational premises.  The Court rejected the city’s argument that the legislature intended to define “nominal” as an offsetting fee charged because, even though the statute is ambiguous, it must be interpreted so as to not render any term meaningless or superfluous.  Based on the common definition of “nominal,” whether Mackinney paid a nominal fee is a mixed question of law and fact. 

PRACTICE NOTE: While the denial of a summary judgment motion is generally not reviewable on appeal, an appellate court may review a denial based on a point of law as part of its review of the final judgment.  Because the trial court’s finding that a golf course did not qualify as a “premises” was a purely legal determination, the Court of Appeals agreed to review the summary-judgment ruling.

Judge Espinosa authored the opinion; Judges Vásquez and Kelly concurred. 


[1] The Court of Appeals analyzed the language of the statute that was in effect when Mackinney was injured, but stated that while the statute has been amended twice, its reasoning applies to the current version as well.

Posted by: Joshua Ernst

Posted On: 3/18/2013