THIS OPINION HAS BEEN VACATED IN PART

On the constitutionality of the recreational-user statute. We add at the end a note on usage.

Plaintiff held her child’s birthday party at Encanto Park. She paid for a package of things including ride tickets, reservations at picnic tables, etc. There was a nearby area where people broke pinatas but the package did not cover that. So she brought her own pinata, during the breaking of which she fell, allegedly on a hidden sprinkler head in the pinata area. She sued in negligence for her injury Encanto Adventures, which ran the park and sold her the package, and the City of Phoenix. Defendants moved for summary judgment under the statute (13-1551). The trial court granted the motion.

The Court of Appeals affirms. It first agrees that under these facts Encanto Adventures was a “manager” covered by the statute and that the money Plaintiff paid for the package didn’t turn her from a recreational user into a commercial customer (because she hadn’t paid anything for the pinata or use of the pinata area).

It then holds the statute constitutional. It does not violate the anti-abrogation provision because negligence did not lie against the government at common law and Defendant acted as a government agent. It did not violate the privileges-and-immunities clause because the creation of a “recreational user” class, which has been done by many states, is rationally related to the governmental interest in encouraging the opening of land for recreational use.  And it is not a “special law” favoring certain corporations like Encanto Adventures because it meets the requirements of Gallardo (2014): it has a rational relationship to a legitimate legislative objective, it covers all similarly situated, and it allows entities to move in and out of the class (by chosing whether to charge a non-negligible admission fee).

The court awards costs to Defendants. They also asked for sanctions because there had been an Offer of Judgment. The court says that Rule 68(g) applies only to costs in the Superior Court.

On the subject of usage, the court uses a cedilla over the “n” in “pinata.” So is it a foreign word? If so, it should also be italicized. If not, it shouldn’t use the cedilla because English doesn’t. But a bigger problem is that modern Spanish doesn’t, either. The cedilla here is a sign of politically-correct genuflection, not of sophistication or cultural respect. In fairness to the court it is hardly the only offender in this regard nowadays and may simply be reflecting the style of the briefs.

(Opinion: Normandin v. Encanto)