Unpublished Disposition, 921 F.2d 280 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 921 F.2d 280 (9th Cir. 1990)

David LINDBLAD, Bertha Lindblad, husband and wife,Plaintiffs-Appellants,v.UNITED STATES of America, Defendant-Appellee.

No. 89-16132.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 2, 1990.* Decided Dec. 5, 1990.

Before SCHROEDER, WIGGINS and LEAVY, Circuit Judges.


MEMORANDUM** 

David and Bertha Lindblad appeal the district court's order granting summary judgment for the United States. Appellants allege that David Lindblad sustained injuries while snow-sledding at the federally-owned Cinch Hook snow play area in Arizona. We review grants of summary judgment de novo.

The Arizona Recreational User Statute, A.R.S. Sec. 33-1551 (the "statute"), dictates that property owners owe no duty of care to a "recreational user" of their property. It is undisputed that Lindblad was a recreational user within the statute's meaning. Appellants, however, argue that the statute is unconstitutional under the Arizona Constitution, Art. 18, Sec. 6, which reads: "The right of action to recover damages for injuries shall never be abrogated ..." This provision prohibits legislative abrogation, but not legislative regulation, of a right of action. Boswell v. Phoenix Newspapers, Inc., 730 P.2d 186, 195 (Ariz.1986), cert. denied, 481 U.S. 1029 (1987).

We find that, as applied to Lindblad, the statute simply codifies existing Arizona negligence law. A licensee is "a person who is privileged to enter or remain on land only by virtue of the possessor's consent." Nicoletti v. Westcor, Inc., 639 P.2d 330, 332-33 (Ariz.1982). Under Arizona law, a licensee must take the condition of the land as he finds it and must assume all the risks incidental to such condition. Mull v. Roosevelt Dist., 272 P.2d 342, 343 (Ariz.1954). Lindblad was a licensee at Cinch Hook. Therefore, as applied to Lindblad, the statute is a constitutional regulation of his cause of action.

The appellants argue that David Lindblad was a public invitee at Cinch Hook, and that therefore the United States owed him a duty of care. A public invitee is "a person who is invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public. Nicoletti, 639 P.2d at 333. However, there are no facts in the record which support the appellant's claim that he is a public invitee. The facts submitted with the motions for summary judgment indicate nothing more than the appellant was a licensee at Cinch Hook.

Because we find that the Arizona Recreational User Statute is a legislative regulation of a licensee's negligence cause of action, the statute is constitutional as applied to Lindblad. Therefore, the order of the district court is AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3