In this case, plaintiff Grezegorz Stramka was injured while floating the Salt River in an inner tube rented from defendant Salt River Recreation, Inc. (SRR). The facts of the case were as follows:

Stramka is a recent immigrant to the United States who claims that all he knew about tubing was what he learned from SRR's television advertisements and that he had not been warned that there might be sharp objects in the river. On the day of his injury, Stramka and his family drove to the SRR business site and rented inner tubes for $6.00 each. They boarded SRR buses and were shuttled to the entry point on the river. Shortly after entering the river, Stramka fell out of the tube and cut his hand on something sharp under the water, receiving allegedly serious and permanent injuries.

The area in question is that portion of the Tonto National Forest known as the Lower Salt River Recreation Area. SRR has a permit from the United States Forest Service to operate and maintain a shuttle bus system on the public roads in this area and to sell concessions and rent inner tubes from a three-acre site of land within this area.

Stramka sued SRR, alleging negligence. SRR filed a motion for summary judgment on grounds that the state recreational use statute (A.R.S. section 33-1551) "relieved it of any duty to Stramka." The trial court granted summary judgment to SRR "based solely on the applicability of section 33-1551." Stramka appealed.

Accordingly, the only issue on appeal was whether SRR qualifies for the immunity conferred by Arizona's recreational use statute (section 33-1551). As cited by the appeals court, the following principles of statutory instruction requires courts to apply a narrow or "strict construction" to Arizona's recreational use statute.

Because the statute limits common law liability to invitees, it must be strictly construed. Arizona courts are reluctant to interpret statutes in favor of denying or preempting tort claims... Any exceptions to immunity statutes must be broadly construed in favor of allowing plaintiffs to proceed with their cause of action... Courts endeavor to avoid overbroad statutory interpretations that afford unintended immunity in derogation of common-law rights of action.

While noting that "A.R.S. § 33-1551 was substantially amended by the legislature in 1993, [since] this suit arises from personal injuries suffered in 1988," the appeals court applied "the former version of the statute" which provided as follows:

A. An owner, lessee or occupant of premises does not:
1. Owe any duty to a recreational user to keep the premises safe for such use.
2. Extend any assurance to a recreational user through the act of giving permission to enter the premises that the premises are safe for such entry or use.
3. Incur liability for any injury to persons or property caused by any act of a recreational user.

B. As used in this section:
1. "Premises" means agricultural, range, mining or forest lands, and any other similar lands which by agreement are made available to a recreational user, and any building or structure on such lands.
2. "Recreational user" means a person to whom permission has been granted or implied without the payment of an admission fee or other consideration to enter upon premises to hunt, fish, trap, camp, hike, ride, swim or engage in similar recreational pursuits....
A.R.S. § 33-1551 (1990).

Within the context of this particular case, the appeals court found that "there are three elements to the recreational use statute: (1) the defendant must be an 'owner, occupant or lessee' of the premises; (2) the injury must occur on the 'premises'; and (3) the person injured must be a 'recreational user' of the premises."

Applying these elements to the facts of the case, the appeals court found that "[t]he second element is established here; the river is a 'premises' within the meaning of the statute.

Former section 33-1551 included fishing and swimming as examples of recreational pursuits. See A.R.S. § 33- 1551(B)(2) (1990). Bodies of water within public lands are "premises" under the current recreational use statute. See A.R.S. § 33-1551(B)(2) (1993) (amending former section 33-1551 to expressly include "body of water" in its definition of "premises"). Accordingly, we interpret former section 33-1551 as also including bodies of water in its definition of "premises". It is an accepted rule of statutory construction that when determining the intent of the legislature, the court may consider both prior and subsequent statutes in pari materia.

The appeals court then considered whether "SRR is an 'owner, occupant or lessee' of the Salt River." While conceding that "[t]he 'owner' of the Tonto National Forest, including the Salt River, is the United States through its Forest Service," SRR maintained on appeal that "it is an 'occupant' of the premises because it holds a permit from the United States Forest Service 'for the occupancy of land for the purposes stated'."

In determining "whether SRR qualifies for statutory immunity," the appeals court considered the following purposes of the statute."

Although section 33-1551 does not contain a statement of legislative purpose, we find some guidance in the model act... The stated purpose of the model act is "to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner." The legislative history of Arizona's statute reflects a similar purpose, to "promote the use of vast areas of land not currently being used for recreational purposes."

The specific issue was, therefore, whether "permission to do business on recreational land confers recreational-use-statute immunity on that business." In addressing this issue, the appeals court considered "SRR's purposes for being on the land."

SRR arguably does "promote the use of vast areas of land" in the sense that it attracts people to the river by advertising and by providing various goods and services to those willing to pay the prices charged by SRR. But the land being promoted is already "currently being used," and the purpose of this "promotion" is therefore not to open up the land for use, it is to generate business for SRR and to increase its profits. Because SRR is a business whose reason for being on the land is to profit from the public's use of the land, SRR does not qualify for the immunity of the recreational use statute.

As a result, the appeals court concluded that "SRR's permit to occupy a three-acre site of forest land for the purpose of doing business with recreational users of the Salt River makes SRR a commercial user of the premises, not an 'occupant' of the premises within the meaning of the recreational use statute." The appeals court, therefore, reversed the judgment of the trial court in favor of SRR and remanded (i.e., sent back) this case for further proceedings consistent with this opinion. On remand, the trial court would consider Stramka's negligence claims against defendant Salt River Recreation, Inc.

Source: Recreation and Parks Law Reporter (RPLR) case report, © copyright 1998 NRPA

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