Opinion
84439-COA
04-13-2023
KATHRYN ABBOTT; AND ANDREW DODGSON-FIELD, Appellants, v. CITY OF HENDERSON, AN AGENCY AND/OR POLITICAL SUBDIVISION OF THE STATE OF NEVADA, Respondent.
UNPUBLISHED OPINION
ORDER OF REVERSAL AND REMAND
GIBBONS C.J.
Kathryn Abbott and Andrew Dodgson-Field appeal from a district court order granting summary judgment in a negligence action. Eighth Judicial District Court, Clark County; Eric Johnson, Judge. Facts
In September 2019, Abbott was with her children at Vivaldi Park, which is owned by respondent City of Henderson (City). The zoning map and the City website contained in the record demonstrate that Vivaldi Park is 7.62 acres of land located within the Seven Hills community in Henderson, Nevada. The park's playground area consisted of a combination of a pour-in-place rubberized surface surrounded by sand. While walking near the end of the slide located at the edge of the playground area, Abbott contended that she slipped off the pour-in-place surface and stepped into a four-inch hole, which she alleged was the result of a poorly maintained pour-in-place surface and lack of sufficient sand. According to Abbott, the slip and fall caused Abbott to suffer multiple fractures to her leg, and she sustained $129,532.36 in past medical expenses.
We do not recount the facts except as necessary to our disposition.
Procedural history
In August 2020, Abbott and her husband, Dodgson-Field, filed a complaint against the City in the Eighth Judicial District Court. The complaint alleged two causes of action: (1) negligence (premises liability) and (2) loss of consortium. The City filed an answer, in which it raised, in relevant part, an affirmative defense to bar or limit the causes of action pursuant to the provisions of NRS Chapter 41.
We note that the district court granted summary judgment as to Dodgson-Field's loss of consortium claim because it found that the City was entitled to immunity under NRS 41.510, so dismissal of this derivative claim will also necessarily be reversed and remanded.
After the parties engaged in discovery, the City filed a motion for summary judgment in December 2021, arguing that summary judgment was appropriate because it was entitled to immunity under NRS 41.510, Nevada's recreational use statute. Specifically, the City argued that it owned Vivaldi Park, that Vivaldi Park was covered by the statute because it was nonresidential property and open to the public for recreational purposes, and that Abbott's activity of walking was the type of activity covered by NRS 41.510(4).
Abbott opposed the City's motion for summary judgment, arguing that while Vivaldi Park may fall under NRS 41.510(1), subsection 3 of the statute does not limit liability for "[w]illful or malicious failure to guard, or to warn against, a dangerous condition, use, structure, or activity." See NRS 41.510(3)(a)(1). Abbott contended that the City created a dangerous condition at Vivaldi Park by installing the pour-in-place surface at a 90-degree angle to where the surrounding sand was located and knowing that the surrounding sand would be displaced, when it should have used a sloping construction and maintained the sand condition. Thus, Abbott argued that the City's knowledge of the dangerous condition it created demonstrated, at a minimum, an issue of fact as to whether the City willfully or maliciously failed to warn Abbott of the dangerous condition, thereby providing an exception to the City's immunity defense under NRS 41.510.
The City in turn argued that Abbott had to present admissible evidence that the City was aware of other accidents or injuries in Vivaldi Park due to the displaced sand to demonstrate that the City acted willfully or maliciously. Because there was no evidence adduced during the discovery period to support that the City was aware of other incidents or injuries at Vivaldi Park, the City argued that Abbott failed to show that the City acted willfully or maliciously. Accordingly, the City argued that it met all the requirements of NRS 41.510 as a matter of law and that it was entitled to summary judgment.
The district court held a hearing on the City's motion for summary judgment. At the hearing, Abbott argued that Vivaldi Park was a residential playground in the Seven Hills community, which fell outside the purview of NRS 41.510 pursuant to Boland v. Nevada Rock & Sand Co., 111 Nev. 608, 894 P.2d 988 (1995), because Vivaldi Park was not rural, semi-rural, or nonresidential. Abbott also argued that "playing in a playground is not what this statute intended to cover." Finally, Abbott argued that the City acted willfully because it installed the pour-in-place surface at a 90-degree angle as opposed to a sloping construction, it was aware that the sand levels surrounding the pour-in-place were low, and it did not properly maintain the sand, thus willfully creating a safety hazard.
In March 2022, the district court entered its findings of fact, conclusions of law and order granting the City's motion for summary judgment. The court found that Abbott was using Vivaldi Park's playground "in a manner that constitutes an activity the legislature intended NRS 41.510 to cover." The court further found that Vivaldi Park was the "property type covered by NRS 41.510 as it is nonresidential property, open to the public and free of charge for recreational use." Finally, the court found that the City's conduct was at worst negligent, and not willful or wanton, because the evidence showed that the City was aware of the condition and location of the pour-in-place surface and took steps to minimize the risk of injury, such as filling in the remainder of the area with sand and conducting regular inspections to maintain a level play area. Accordingly, the district court found that the City was immune from liability pursuant to NRS 41.510 and expressly declined to consider whether any of the City's other arguments for immunity applied. This appeal followed.
On appeal, Abbott raises four issues for this court to consider: (1) whether the immunity provision of NRS 41.510 applies where the property at issue is neither rural, semi-rural, nonresidential, nor open; (2) whether the immunity provision applies, where playing on or walking by a child's slide is not considered to be a "recreational activity" under the statute; (3) whether, even if immunity under NRS 41.510 applies, a genuine dispute of material fact exists as to whether the City acted willfully or maliciously and thus may be held liable under the statute; and (4) whether the City is entitled to immunity pursuant to NRS 41.032 or NRS 41.033.
In its motion for summary judgment, the City also argued that it was entitled to immunity under NRS 41.032 or NRS 41.033. While Abbott argues against immunity under NRS 41.032 or NRS 41.033 on appeal, we do not reach this issue because the district court expressly declined to consider the City's immunity under these statutes in the first instance. See Douglas Disposal, Inc. v. Wee Haul, LLC, 123 Nev. 552, 557 n.6, 170 P.3d 508, 512 n.6 (2007) ("The district court did not address [the] issue. Therefore, we need not reach the issue."). On remand, the district court may consider the applicability of these other statutes.
Conversely, the City argues that the district court did not err in granting summary judgment because (1) the plain language of NRS 41.510 provides that Vivaldi Park is covered by the statute because it is "nonresidential" land, (2) the statutory list of "recreational activity" that is outlined in NRS 41.510 is expansive and covers the activity that Abbott was engaged in, and (3) the City did not act willfully or maliciously as there is no evidence in the record to support that the City knew of prior injuries or willfully or maliciously failed to maintain the area. Because we agree with Abbott that Vivaldi Park is not the type of land for which immunity can be properly granted to the City under NRS 41.510, we necessarily reverse and remand.
Since we conclude that NRS 41.510(1) does not apply here, we need not address whether Abbott was engaged in the type of activity the Legislature intended to cover under NRS 41.510(4) or whether the City engaged in willful or malicious conduct to bar it from immunity under NRS 41.510(3)(a)(1). See Miller, 124 Nev. at 588-89 & n.26, 188 P.3d at 1118-19 & n.26 (explaining that this court need not address issues that are unnecessary to resolve the case at bar).
Standard of review
This court reviews orders granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment should be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." NRCP 56(a). "[W]hen reviewing a motion for summary judgment, the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the non-moving party." Wood, 121 Nev. at 729, 121 P.3d at 1029. If there are no genuine disputes of material fact, and the "moving party is entitled to judgment as a matter of law," then this court will affirm the district court's grant of summary judgment. Id. (internal quotation marks omitted).
We also review issues of statutory construction de novo. Zohar v. Zbiegien, 130 Nev. 733, 737, 334 P.3d 402, 405 (2014). "Because the interpretation of a statute is a question of law, the proper standard of review is de novo." Irving v. Irving, 122 Nev. 494, 496, 134 P.3d 718, 720 (2006). "In interpreting a statute, this court looks to the plain language of the statute, and if that language is clear, this court does not go beyond it." Volenti v. State, Dep't of Motor Vehicles, 131 Nev. 875, 879, 362 P.3d 83, 85 (2015). But "when the Legislature has addressed a matter with imperfect clarity, it becomes this court's responsibility to discern the law," and we "resolve any doubts as to the Legislature's intent in favor of what is reasonable." Pankopf v. Peterson, 124 Nev. 43, 46, 175 P.3d 910, 912 (2008). We interpret statutory provisions to avoid unreasonable or absurd results. Artmor Invs., LLC v. Nye County, 138 Nev. Adv. Op. 53, 512 P.3d 1249, 1250 (2022). And "[w]hen the statute's language lends itself to two or more reasonable interpretations, the statute is ambiguous, and we can look to the legislative history to construe the statute in a manner consistent with reason and public policy." Id.
NRS 41.510's statutory interpretation
The primary issue before us on appeal is whether Vivaldi Park is the type of land the Legislature intended to cover under NRS 41.510 to provide the City with immunity for Abbott's injuries.
NRS 41.510 provides, in pertinent part, as follows:
1. Except as otherwise provided in subsection 3, an owner of any estate or interest in any premises, or a lessee or an occupant of any premises, owes no duty to keep the premises safe for entry or use by others for participating in any recreational activity, or to give warning of any hazardous condition, activity or use of any structure on the premises to persons entering for those purposes.
NRS 41.510(3)(a)(3) also explains that this section does not limit the liability which would otherwise exist for "[i]njury caused by acts of persons to whom permission to participate in recreational activities was granted, to other persons as to whom the person granting permission, or the owner, lessee or occupant of the premises, owed a duty to keep the premises safe or to warn of danger."
The Nevada Supreme Court interpreted NRS 41.510 in Boland and determined that immunity applied where (1) the defendant is the owner, lessee, or occupant of the premises where the plaintiff was injured; (2) the land where the plaintiff was injured is "the type of land the legislature intended NRS 41.510 to cover"; and (3) the plaintiff was "engaged in the type of activity the legislature intended NRS 41.510 to cover." Boland, 111 Nev. at 611, 894 P.2d at 990. The supreme court recognized in Boland that the type of land "should be rural, semi-rural, or nonresidential so that it can be used for recreation." Id. at 612, 894 P.2d at 991 (emphasis added). In addition, prior to Boland, the supreme court had only applied NRS 41.510 to "open" land. Id. (citing Brannan v. Nev. Rock & Sand, 108 Nev. 23, 24-25, 823 P.2d 291, 291-92 (1992) (noting that an owner of open land, which was described as "an uninhabited area of desert," "owes no duty to keep the premises safe from entry or use by others for recreational purposes")).
The plain language of NRS 41.510 does not identify the type of land the Legislature intended to cover under the statute, and specifically does not include a reference to neighborhood parks like Vivaldi Park. See Boland, 111 Nev. at 612, 894 P.2d at 991 ("[T]he Nevada statute does not specify what type of property is covered . . . ."). Furthermore, "[s]ince [NRS 41.510] is in derogation of common law rules of tort liability, we take care to avoid an overbroad interpretation of the statute that would afford immunity that was not intended." Ducey v. United States, 713 F.2d 504, 510 (9th Cir. 1983) (citing to Rush v. Nev. Indus. Comm'n, 94 Nev. 403, 407, 580 P.2d 952, 954 (1978) (noting that statute in derogation of common law should be read narrowly); W. Indies, Inc. v. First Nat'l Bank of Nev., 67 Nev. 13, 33-34, 214 P.2d 144, 154 (1950) ("Statutes in derogation of the common law are to be strictly construed."); Copeland v. Larson, 174 N.W.2d 745, 749-50 (Wis. 1970) (construing recreational use statute narrowly since in derogation of common law)). Therefore, we conclude that the immunity provided to property owners under NRS 41.510 must be narrowly construed.
See generally Restatement (Second) of Torts § 341A (1965) ("A possessor of land is subject to liability to his invitees for physical harm caused to them by his failure to carry on his activities with reasonable care for their safety if, but only if, he should expect that they will not discover or realize the danger, or will fail to protect themselves against it."); see also Worth v. Reed, 79 Nev. 351, 354, 384 P.2d 1017, 1018 (1963) (noting that "[i]n general terms, an owner owes an invitee the duty of ordinary care" (internal citations omitted)).
NRS 41.510's legislative history
Because NRS 41.510 is silent as to the type of land to which immunity under the statute applies, we take this opportunity to review the legislative history. The Nevada Supreme Court previously addressed the legislative history of NRS 41.510 in Boland and concluded that the legislative intent was to provide immunity for land that was "rural, semi-rural, or nonresidential so that it can be used for recreation." Boland, 111 Nev. at 612, 894 P.2d at 991 (emphasis added) (holding that a commercial gravel pit was the type of land the Legislature intended to cover under NRS 41.510). Upon further review, NRS 41.510's legislative history demonstrates that the purpose behind the statute was to provide immunity for injuries occurring on unimproved land owned by private parties or governmental entities. During the Legislature's consideration of Assembly Bill 313, the bill that modified NRS 41.510, one proponent of the bill, Madelyn Shipman, a Washoe County Deputy District Attorney, testified: "[a]ll counties and cities are also owners of land and unimproved property that provide access to recreational areas. To date under the current law, they have been protected in the same manner as private property owners for unimproved land held in ownership by a city or county" Hearing on A.B. 313 Before the Assembly Comm. on Judiciary, 68th Leg. (Nev., April 6, 1995) (statement of Madelyn Shipman, Washoe County Deputy District Attorney) (emphasis added). Thus, the legislative history demonstrates that the type of land the Legislature intended to cover for purposes of providing immunity was that of unimproved land used for recreational purposes owned by either private parties or governmental entities.
This conclusion is also consistent with the interpretation of NRS 41.510 undertaken by federal courts, which have traditionally upheld the statute's immunity for property owners when rural lands were involved. The United States District Courts for the District of Nevada and Northern District of California have found that the purpose of NRS 41.510 was to "encourage owners of land within rural areas to make land and water areas available for recreational purposes by limiting their liability towards persons entering thereon for such purposes." See Neal v. Bently Nev. Corp., 771 F.Supp. 1068, 1072 (D. Nev. 1991), aff'd, 5 F.3d 538 (9th Cir.1993) (quoting Ducey v. United States, 523 F.Supp. 225, 229-230 (D. Nev. 1981), aff'd in part, rev'd in part on other grounds, 713 F.2d 504 (9th Cir. 1983) (quoting Colo. Rev. Stat., Title 33, Art. 41, § 101)); Gard v. United States, 420 F.Supp. 300, 302 (N.D. Cal. 1976), aff'd, 594 F.2d 1230 (9th Cir. 1979) (noting that "[f]orty-three states have 'sightseer' statutes similar to NRS 41.510" intending to limit liability of owners of land within rural areas who make their areas available for recreational purposes). In an unpublished disposition, the United States Court of Appeals for the Ninth Circuit affirmed that the legislative purpose of NRS 41.510 is to limit the liability of rural landowners who make their land available for recreational purposes. See Neal v. Bently Nev. Corp., No. 91-16291, 1993 WL 355152, at *2 (9th Cir. Sept. 13, 1993).
Vivaldi Park is not the type of land the Legislature intended to cover under NRS 41.510
On appeal, the City argues that NRS 41.510 grants immunity because Vivaldi Park is the type of land the Legislature intended to cover under the statute, notwithstanding the legislative history that limits property owners' immunity for their unimproved land. The City also argues that it is entitled to immunity for injuries occurring at the park under NRS 41.510, not because Vivaldi Park is "rural" or "semi-rural" land, but because Vivaldi Park is 7.62 acres of "open" space used for recreational purposes. Thus, the City is equating Vivaldi Park with "open" space or nonresidential land used for recreational activities so as to be covered by the immunity permitted by Boland.
We turn to other statutes for guidance in addressing whether Vivaldi Park constitutes the type of unimproved land contemplated by the Legislature to be covered under NRS 41.510. NRS Chapter 278 provides for planning and zoning, which includes the development and maintenance of neighborhood parks. A "neighborhood park" is defined as "a site not exceeding 25 acres, designed to serve the recreational and outdoor needs of natural persons, families and small groups." NRS 278.4983(8)(c). The creation of a masterplan for the development of a neighborhood may include a recreational element such as designated areas for parks. NRS 278.160(1)(f). Accordingly, a governing body of a city may, by ordinance, require that the developer of land dedicate such land areas for park and playground purposes; a governing body of the jurisdiction also assumes the maintenance of parks. NRS 278.4979; NRS 278.4787. Additionally, a governing body of the city may impose a residential construction tax, which purpose is to "raise revenue to enable the cities and counties to provide neighborhood parks and facilities for parks which are required by the residents of those apartment houses, mobile homes and residences." NRS 278.4983. Conversely, undeveloped land means "land in its unused natural or reclaimed state and on which little or no infrastructure exists." NRS 278.0191. "Infrastructure" means "publicly owned or publicly supported facilities that are necessary or desirable to support intense habitation within a region, including, without limitation, parks." NRS 278.02535. Thus, a park or a playground is a type of infrastructure that is developed in a residential community and is not considered to be undeveloped land.
Based on the record in this case, there is no dispute that Vivaldi Park is a 7-acre property that has infrastructure in place, including the playground. Vivaldi Park was specifically designed, developed, and maintained to serve the community of Seven Hills for the purpose of allowing the public to participate in recreational activities that the park has to offer, including walking in the playground area. See NRS 278.4787 (providing that the governing body of the jurisdiction assumes the maintenance of the park); NRS 278.4979 (providing that a governing body of a city may require the developer of land to dedicate such land areas for park and playground purposes); compare NRS 278.0191 (providing that undeveloped land means land with little or no infrastructure) with NRS 278.02535 (providing that infrastructure includes parks). Accordingly, Vivaldi Park and its playground do not qualify as unimproved land.
As established above, the plain language of NRS 41.510 does not clearly provide that a neighborhood park with infrastructure located in a residential area, such as Vivaldi Park, is covered under the statute, nor does the legislative history support the City's position. See Boland, 111 Nev. at 612, 894 P.2d at 991. In light of the legislative history of NRS 41.510, and the precedent of narrowly construing recreational use statutes, we conclude that Vivaldi Park is not the type of unimproved land that the Legislature intended to cover under NRS 41.510 for the purpose of encouraging landowners of unimproved land to make their land accessible to the public for recreational purposes. See Boland, 111 Nev. at 612, 894 P.2d at 991; Neal, 771 F.Supp. at 1072; Ducey, 523 F.Supp. at 229-230; Gard, 420 F.Supp. at 302; see also Hearing on A.B. 313 Before the Assembly Comm. on Judiciary, 68th Leg. (Nev.5 April 6, 1995) (statement of Madelyn Shipman, Washoe County Deputy District Attorney).
Further, to grant immunity to the City under NRS 41.510 merely because Vivaldi Park is used for recreational purposes would lead to an overly broad interpretation of the statute which would afford the City immunity for Abbott's injury that was not intended. See Ducey, 713 F.2d at 510. Such an interpretation of the statute would also lead to an absurd result because under such an interpretation, any land used for recreational purposes would have immunity under this statute-regardless of where the land is located or whether it was developed with certain infrastructure in place. Artmor Invs., LLC, 138 Nev., Adv. Op. 53, 512 P.3d at 1250 (noting that "[w]e interpret statutory provisions to avoid unreasonable or absurd results").
Conclusion
Therefore, we decline to affirm the City's immunity under NRS 41.510 for Abbott's alleged injuries that occurred at a neighborhood park she had permission to use, and that was owned, developed and maintained by the City for recreation. Thus, the district court erred in finding that the City was entitled to immunity under NRS 41.510(1). Accordingly, we ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.
Nor are we persuaded by the legal authority from other jurisdictions cited by the City in its answering brief in light of NRS 41.510's legislative history and Nevada and federal legal authority. See Boland, 111 Nev. at 612, 894 P.2d at 991; Ducey, 713 F.2d at 510. Further, we again note that the plain language of NRS 41.510 does not include "parks" as the type of land covered by the statute, unlike some of the statutes in other jurisdictions cited to by the City. However, we need not decide at this time whether all parks are excluded under the limited liability provision of NRS 41.510(1) as this issue is not properly before us.
Insofar as the parties have raised arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.
Bulla J., Westbrook J.
Hon. Eric Johnson, District Judge, William C. Turner, Settlement Judge.