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University of Alaska v. Shanti (6/30/92), 835 P 2d 1225
<![CDATA[
NOTICE: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors to
the attention of the Clerk of the Appellate Courts, 303 K
Street, Anchorage, Alaska 99501, in order that corrections
may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
UNIVERSITY OF ALASKA, )
)
Petitioner, ) File Nos. S-4243/4311
Cross-Respondent, )
)
v. ) 4FA 89 2059 CI
)
)
DOCTOR SHANTI, )
)
Respondent, )
Cross-Petitioner. )
________________________________)
UNIVERSITY OF ALASKA, )
)
Petitioner, )
Cross-Respondent, )
)
v. ) File Nos. S-4244/4292
)
BROWNIE DIX, Personal Represent- ) 4FA 89 1910 CI
ative of the Estate of BARBARA )
DIX PATTEN, Deceased, for the ) O P I N I O N
Benefit of ANNEMIEK ZOE PATTEN,)
the deceased's minor child, and )
ANNEMIEK ZOE PATTEN, by and )
through DAVID PATTEN, natural )
father and guardian, and BROWNIE )
DIX and ROBERT DIX, the natural)
parents of BARBARA DIX PATTEN, )
)
Respondents, )
Cross-Petitioners. )
________________________________) [No. 3861 - June 30, 1992]
Petitions for Review from the Superior Court
of the State of Alaska, Fourth Judicial
District, Fairbanks, Richard D. Savell,
Judge.
Appearances: Gerard R. LaParle and Peter
Ashenbrenner, Bradbury, Bliss & Riorden,
Fairbanks, for Petitioner/Cross-Respondent
University of Alaska. Donald F. Logan, Law
Offices of Donald F. Logan, Fairbanks, for
Respondent/Cross-Petitioner Shanti. Valerie
M. Therrien, Fairbanks, for Respondents/Cross-
Petitioners Dix.
Before: Rabinowitz, Chief Justice, Burke,
Matthews, Compton and Moore, Justices.
BURKE, Justice.
In this consolidated petition for review, the
University of Alaska argues that the superior court erred in
denying its summary judgment motion. The court denied the motion
after concluding that the University gained no immunity under AS
09.45.795, Alaska's recreational use/landowner immunity statute.
The trial court ruled that the University ski hill, the site of a
sledding accident, did not qualify as "unimproved land," a
prerequisite to immunity under the statute, because it is
situated "in an urban or near an urban area." The University
petitioned to challenge this ruling. Doctor Shanti and Brownie
Dix et al. (hereafter Shanti) cross-petitioned, claiming the
trial court erred in ruling that the accident site would have
qualified as "unimproved land"but for its urban location.
We consolidated the petitions and granted them solely
to review the trial court's interpretation of "unimproved land"
as the phrase is used in AS 09.45.795. After examining the
language, history, and purpose of this statute, we conclude that
the superior court erred in reading an urban/rural distinction
into the statute. Nevertheless, as there can be no doubt that
the University ski hill is "improved land,"the superior court
correctly ruled that the University gains no immunity under the
statute. Accordingly, we affirm the court's denial of the
University's summary judgment motion and return the case for
trial.
I
In October 1988 Barbara Dix Patten, Doctor Shanti, and
Scott Wright were sledding on a ski hill located on the
University of Alaska, Fairbanks campus. On their third trip down
the hill, Shanti and Patten lost control and struck a cluster of
trees. Shanti and Patten were seriously injured in the
collision. Patten ultimately died from her injuries.
Shanti and Patten's estate filed virtually identical
complaints against the University alleging that the University
was negligent in maintaining the hill and failed to protect users
against a known danger (i.e. the propensity of the hill's terrain
to propel sledders into the trees). The University moved for
summary judgment on both complaints arguing that the ski hill is
unimproved land and, as an owner of unimproved land which is open
to the public for recreational purposes, it is immune from suit
for mere negligence under AS 09.45.795.1
Superior Court Judge Richard D. Savell held a hearing
on the University's motion. Counsel for the University argued
that the cleared ski hill is "unimproved land"within the meaning
of AS 09.45.795. Shanti's counsel responded:
This is the unimproved slope. This
unimproved slope has no grass on it because
they mow it during the summer. It's got a
building on it. I believe one of the
affidavits at one point talked about the
light that was there and it used to run a
rope tow. That's unimproved.2
Judge Savell issued an oral ruling on the summary
judgment motion. He noted that it was difficult to determine
from the language of AS 09.45.795 which land is covered by the
immunity provision:
Property that is unimproved but has an
abandoned improvement, such as a road, such
as a landing strip or a trail, is not
stripped of being unimproved. It does not
mean, in this [c]ourt's view, that improved
property that has an unimproved portion and
an injury occurs on the unimproved portion is
immune. The [c]ourt doesn't know how or
where the line would be drawn; from a
homeowner's front lawn that is mowed to a
back lawn that is not mowed?
The judge then looked to the legislative history of the original
1980 act and the 1988 amendments. He found comments in a 1987
House Judiciary Committee hearing which he believed indicated a
legislative intent to exclude urban areas from the coverage of
the immunity provisions. He stated that if this were:
a plain meaning state, and we're not, the
plain meaning [of "unimproved land"] as applied to
the pictures put before the [c]ourt would immunize
this area. That grassy slope is an unimproved
portion of property. But every piece of real
estate not covered by a building on that campus
would so be classified, unless also covered by
asphalt or concrete.
But the University is not within
the coverage because of its setting, because
of its setting in an urban or near an urban
area . . . .
. . . .
The [c]ourt concludes that despite
the plain language of the statute, the
legislative history discloses an intent to
exclude this land and apply it only to rural
settings.
The parties then filed separate petitions for review
challenging different aspects of Judge Savell's ruling.3
II
Alaska Statute 09.45.795, as originally enacted,
provided uncompensated owners of "unimproved land"immunity from
tort liability for injuries resulting from a natural condition of
the unimproved property.4 A 1988 amendment to the section
expanded the scope of the immunity coverage but also expressly
limited immunity to liability arising from merely negligent acts.
A recreational user of an unimproved portion of land can now only
bring suit against the owner of "unimproved land"for reckless or
intentional misconduct. AS 09.45.795 (Supp. 1991). In addition,
tracts of land with trails or abandoned roads and landing strips
are deemed to be "unimproved land"under the amended statute. Id.
However, neither the original 1980 version of the section nor the
1988 amendment define the term "unimproved land" or explain
exactly which land is to be immunized under the statute.5
The 1980 bill (HB 865), which became AS 09.45.795, was
designed to limit liability to landowners as a means of
encouraging them to open up their land to recreational users.
Representative Halford, the bill's sponsor, highlighted the
potential ambiguity of the term "unimproved land":
One of the questions that was brought up
in consideration of this bill is whether we
should define exactly what unimproved land
is. Because a definition of this type covers
a lot of areas, it was felt that it was
better, in consideration of the issues, not
to define it but to allow it to be defined as
it has in the past under common law through
the procedure of past and present and future
cases that deal with the subject. So that
definition is not included in the bill, and
that's a basic policy decision that leaves
that portion of it to the courts. However
the bill is a substantial gain for, as I say,
property owners and recreational users who
would like to use property belonging to
somebody else. It doesn't affect property
that [is] improved in any way.
House Debate re: H.B. 865 4/24/80 (emphasis added). The
legislature passed the bill without a definition of "unimproved
land," thus signalling its willingness for our courts to define
the term in accordance with prior judicial construction.6 This
is the first opportunity we have had to construe this section.
The 1988 amendment added a new layer of ambiguity as to
the exact meaning of the phrase "unimproved land." The 1988
amendment began as an attempt by the Alaska Federation of
Natives, native regional corporations, the University of Alaska
and other large landholders to pass a broader recreational use
statute, patterned after the Model Act.7 See House Judiciary
Committee Hearing on H.B. 198 Re: Permissive and Non-Permissive
Use of Land, May 7, 1987 (statements of Lawrence Kimball, Land
Manager for the Alaska Federation of Natives). The original bill
included a section taken from the Model Act that would have
abrogated the common law duty of care for any "owner of land who
makes land available to the public without compensation for
recreational purposes." H.B. 198, 15th Leg., 1st Sess. (1987).
Almost all of the discussion of this section focused on the
burden and unfairness to a landowner of a large, remote,
virtually unimproved tract of land when liability is imposed
because a trespasser is injured on some unknown or abandoned
"improvement." See e.g. House Judiciary Committee Hearing on
H.B. 198 Re: Permissive and Non-Permissive Use of Land, April 7,
1988.
However, the House Judiciary Committee deleted this
section after the Trial Lawyers Association protested that the
immunity provision was too broad and would immunize residential
property in Anchorage. See House Judiciary Committee Hearing on
H.B. 198 Re: Permissive and Non-Permissive Use of Land, April 12,
1988. Avrum Gross, the Trial Lawyers Association representative,
outlined the bill's history to the Senate Judiciary Committee:
The original bill . . . . covered all
land wherever located, urban land -- it
covered your back yard, it covered the
neighborhood children who come into your
yard, it was purely accidental, and so the
Trial Lawyers of course were spinning around
and were very concerned about making changes
in the law, and we got together with the AFN
and sat down and tried to figure out exactly
what it was that they wanted to accomplish in
this bill.
[The revised bill] limits the
application of the bill to unimproved land,
and it really -- it's not a major change for
present law.
It does, however . . . define unimproved
land as including trails or access roads to
past development, which would of course
include logging roads, mining roads, things
like that, where a lot of activity occurs of
course, and I think a lot of the native
corporations were concerned that land was
being transferred to them that might have
trails and such that they weren't aware of,
and that it would not be included as
unimproved land.
Senate Judiciary Committee Hearing on H.B. 198 Re: Permissive and
Non-Permissive Use of Land, April 28, 1988.
The version of the bill that finally passed represents
a compromise between the Trial Lawyers Association and the large
landholders. The legislators acknowledged that the final bill was
obscurely drafted and never specified the scope of the term
"unimproved land." Taking the legislative history as a whole,
however, three features of the 1988 amendment stand out:
1) The bill is intended to protect
owners of large, often remote parcels of
unimproved, or virtually unimproved, land
from liability so that they will open their
land to recreational use.
2) The legislature meant to expand the
term "unimproved land"to include the type of
"improvements"which would normally be found
in the bush and were either unknown to the
landowner or were not in active use (i.e.
abandoned roads, gravel pits etc.).
3) The statute applies to every square
inch of unimproved land in the state.
However, immunity is not to be extended to
primarily improved property which has a
portion of unimproved property.
III
The University maintains that AS 09.45.795 is virtually
indistinguishable from the Model Act. Therefore, much of its
argument focuses on the policy goals furthered by the nationwide
trend toward adoption of recreational use statutes patterned
after the Model Act. The University cites, as persuasive
authority, cases from other jurisdictions which have refused to
create an urban/rural distinction or other exception to the
blanket immunity provided by their recreational use statutes.8
However, as Shanti points out, the cases cited by the
University interpret recreational use statutes patterned closely
after the Model Act. See supra note 8. Furthermore, the
University fails to cite several cases in which state courts have
limited the scope of their recreational use statute even though
they were interpreting statutes which employed the broader
language of the Model Act.9 Neither party has cited, nor have we
discovered, a pure recreational use statute from another
jurisdiction which expressly limits the immunity coverage to
"unimproved land."
The problem with the University's analysis is its
assumption that our legislature intended AS 09.45.795 to embody
the same policy goals and have the same effect as the Model Act.
In fact, the legislative history of AS 09.45.795 clearly
demonstrates that the act is much narrower in scope both in its
language and its purpose.
There is no question that AS 09.45.795 only immunizes
the University if the sledding hill is deemed to be "unimproved
land" or an "unimproved portion of land." The adjective
"improved" when used to describe real estate generally denotes
land containing man-made additions, usually of a permanent
nature, which tend to increase the value of the property.
Black's Law Dictionary, Sixth Edition (1990) defines "improved
land" as "real estate whose value has been increased by
landscaping and addition of sewers, roads, utilities and the
like." Conversely, "unimproved land"is defined as "lands, once
improved, that have reverted to a state of nature, as well as
lands that have never been improved."Id.
Shanti argues that the University's actions of clearing
trees, mowing grass and placing lights and other "incidental
improvements" on the hill make the hill "improved land" as a
matter of law. Other jurisdictions have examined the effect of
"incidental improvements" when interpreting immunity statutes
designed to protect governmental entities from liability for
accidents on "unimproved land."10
In McKenna v. City of Fort Wayne, 429 N.E.2d 662 (Ind.
App. 1981), the court adopted a "distinct and remote" test to
determine when incidental improvements near an accident site were
sufficient to make a public park "improved land"and, therefore,
take it outside the protection of the public immunity statute.11
The court stated:
we conclude . . . that the improvements
undertaken in the tree's vicinity were
neither so "remote"nor "distinct"from the
tree as to preserve any immunity for the city
under our statute. . . . Supporting this
conclusion are the facts the grass was mowed,
the picnic table was under the tree, and the
playground was within that area. Arguably,
anyone using that part of the park could have
perceived himself as being in a position of
relative safety and not in a "wilderness."
Id. at 666.
In Freitag v. Morris City, 426 A.2d 75 (N.J. Super.
App. Div. 1981), the court held that a sledding hill was
"unimproved public property"under a liberal construction of the
term and therefore fell within the scope of the public immunity
statute.12 The hill had been cleared of timber and brush before
the city bought the property. Id. at 76. It was located in a
large recreation area which included a golf course but also
consisted of "woodland and open fields." The court stated that
"the hill on which plaintiffs were tobogganing is in the
undeveloped portion of the property, several hundred yards from
the golf course."
The court stated:
We do not consider the sledding hill to
be improved land simply because it was once
cleared by New Jersey Central Power and Light
Company. In this case, defendant did not
improve the land and has not maintained it.
Id. at 78 (citation omitted).
In Troth v. State, 566 A.2d 515 (N.J. 1989), the New
Jersey Supreme Court generally approved of the approach taken in
Freitag. The court cited with approval the comments of Professor
Arvo Van Alstyne who served as consultant to the commission that
drafted California's Tort Claims Act of 1963 (on which New
Jersey's statute was modeled):
property loses its "unimproved" status
when there is `some form of physical change
in the condition of the property at the
location of the injury, which justifies the
conclusion that the public entity is
responsible for reasonable risk management of
the area.'
Id. at 521 (quoting A. Van Alstyne, California Government Tort
Liability Practice 3.42 (1980)).13
IV
The approach taken by these courts is, in our opinion,
eminently reasonable and provides parameters for distinguishing
between improved and unimproved land which comport with the
language and purpose of AS 09.45.795. Accordingly, we hold that
trial judges should consider factors such as the following in
order to determine whether a particular tract of land is entitled
to AS 09.45.795 immunity on a motion for summary judgment. The
judge should consider (1) the proximity of improvements to the
accident site14; (2) the extent of property maintenance undertaken
by the landowner15 and (3) whether the character of the property
as a whole justifies the conclusion that the landowner is
responsible for reasonable risk management of the area.
If, based on the application of these factors, the
trial court concludes that reasonable jurors could disagree on
whether the accident site is "unimproved land," the summary
judgment motion should be denied and the issue should be
presented to the jury. If no reasonable disagreement is
possible, the trial judge may rule on the issue as a matter of
law.16
In the present case, the superior court clearly erred
in concluding that the legislature intended all urban or semi-
urban land to fall outside the scope of the immunity statute.
Certainly a pure vacant lot located in Anchorage or Fairbanks
comes within the meaning of "unimproved land." Nothing in the
legislative history relied on by the trial court indicates
otherwise. Never-theless, we must agree with the trial court's
ultimate conclusion that the University ski hill is "improved
land" and falls outside the scope of the immunity statute as a
matter of law.
The hill in question is a maintained, landscaped
section of the main university campus located next to a gymnasium
and a hockey rink. Based on these undisputed characteristics, we
believe that no reasonable juror, considering the factors we have
just listed, could conclude that the ski hill is "unimproved
land"or an "unimproved portion of land"within the meaning of AS
09.45.795.
The superior court's denial of the University's summary
judgment motion is AFFIRMED.
_______________________________
1. AS 09.45.795 (Supp. 1991) provides:
(a) An owner of unimproved land is not
liable in tort, except for an act or omission
that constitutes gross negligence or
recklessness or intentional misconduct, for
damages for the injury to or the death of a
person who enters onto or remains on the
unimproved portion of land if
(1) the injury or death resulted from a
natural condition of the unimproved portion
of the land or the person entered onto the
land for recreation; and
(2) the person had no responsibility
to compensate the owner for the person's use
or occupancy of the land.
. . . .
(c) In this section, "unimproved land"
includes land that contains
(1) a trail
(2) an abandoned aircraft landing area;
or
(3) a road built to provide access for
natural resource extraction, but which is no
longer maintained or used.
2. Shanti's brief and the affidavits submitted at the
summary judgment hearing cite many man-made changes in the hill's
natural character. They claim that the University cleared the
hill, removed stumps, planted and mowed grass on the hill, built
buildings and ball fields, and erected light poles and exercise
stations on the hill. The University does not dispute that the
hill is "cleared"and "mowed,"nor that is located next to the
Patty Gym and the hockey rink on the main campus.
3. In reviewing denials of summary judgment motions, we
independently determine whether there are any genuine issues of
material fact and whether the moving party is entitled to
judgment as a matter of law. Drake v. Hosley, 713 P.2d 1203, 1205
(Alaska 1986). We draw all reasonable inferences in favor of the
nonmoving party and against the movant. Swenson Trucking &
Excavating, Inc. v. Truckweld Equipment Co., 604 P.2d 1113, 1116
(Alaska 1980) (citing Alaska R. Civ. P. 56(c)).
4. The original statute provided:
Civil liability for personal injuries or
death occurring on unimproved land. An owner
of unimproved land is not liable in tort for
damages for the injury to or death of a
person who enters onto or remains on the
unimproved portion of land if (1) the injury
or death resulted from a natural condition of
the unimproved portion of the property; and
(2) the person had no responsibility to
compensate the owner for the person's use or
occupancy of the property.
AS 09.45.795 (1983). Although the statute refers to "land," we
are convinced that the legislature intended the term to be read
broadly to include natural bodies of water (i.e. lakes and
rivers).
5. We interpret this statute using our independent
judgment. Wien Air Alaska, Inc. v. Department of Revenue, 647
P.2d 1087, 1090 (Alaska 1982). Statutes which establish
rights that are in derogation of common law are to be construed
in a manner that effects the least change possible in common law.
Hugo v. City of Fairbanks, 658 P.2d 155, 161 (Alaska App. 1983);
see also Monteville v. Terrebonne Par. Con. Gov't, 567 So. 2d
1097, 1100 (La. 1990) (applying this principle to interpretation
of recreational use statute). Since this statute abrogates the
duty of care for property owners established in Webb v. City &
Borough of Sitka, 561 P.2d 731 (Alaska 1977), we will narrowly
construe its scope.
6. Our standard procedure is to give words their ordinary
and common meaning when interpreting a statute. Foreman v.
Anchorage Equal Rights Comm'n, 779 P.2d 1199, 1201 (Alaska 1989).
However, the phrase "unimproved land"has acquired a particular
legal definition through caselaw and the legislature clearly
intended the term to be interpreted with reference to this prior
law. See Wilson v. Municipality of Anchorage, 669 P.2d 569, 571
(Alaska 1983) (unless words have acquired a particular meaning
through statutory definition or judicial construction, they
should be construed in accordance with their common usage).
7. The "Model Act"refers to a model recreational use
immunity statute promulgated by the Council of State Governments,
entitled "Public recreation on private lands: limitations on
liability." See 24 Suggested State Legislation 150 (1965). The
1964 and 1965 versions of the Model Act both provide immunity to
"an owner of land who either directly or indirectly invites or
permits without charge any person to use such property for
recreational purposes." The 1965 act also defines "land" very
broadly to include "real property, land and water, and all
structures, fixtures, equipment and machinery thereon." See 24
Suggested State Legislation at 150.
The scope of immunity provided by recreational use
statutes has been extensively examined in other jurisdictions.
See Annotation, Effect of Statute Limiting Landowner's Liability
for Personal Injury of Recreational User, 47 A.L.R. 4th 262 9-
13 (1986); see also J. Riffer, Sports and Recreational Injuries
5.10-14 (1985). Most jurisdictions have adopted some version
of the Model Act, however they have "utilize[d] a variety of
terms to describe the property to which the statute applies."
Annotation, 47 A.L.R. 4th at 271 (referring to "premises" and
"commercial property"). See also e.g. N.J.S.A. 2A:42A-2 (New
Jersey adopting "premises"language); Wis. Act. 895.52(2)(a)
(Wisconsin adopting "property" language); O.R.S. 105.655 &
105.665 (Oregon adopting "land" but defining "land" as
"agricultural land, range land, forest land, . . . including . .
. private buildings and structures on such lands . . . .); Ariz.
Rev. Stat. Ann. 33-1551 (Arizona adopting "premises" but
defining "premises"as "agricultural, range, mining or forest
land, and any other similar lands which by agreement are made
available to a recreational user, and any building or structure
on such lands.").
8. See e.g. Boaldin v. University of Kansas, 747 P.2d 811,
813 (Kan. 1987) (On facts similar to those presented in this
case, the court refused to go beyond the plain meaning of the
statute and held that a hill on the campus which was used for
sledding, football, and other sports, was "public property . . .
permitted to be used as a park, playground or open space for
recreational purposes"and, therefore, fell within the immunity
protection of the state's recreational use statute.); Dean v.
Glen Falls Country Club, Inc., 566 N.Y.S.2d 104, 105 (N.Y. App.
Div. 1991) (similar facts, recreational use statute which
provides that "an owner . . . of premises . . . owes no duty to
keep premises safe for . . . use by others for . . . tobogganing"
applies to a "developed and commercially used"golf course in an
urban setting) (following Iannotti v. Consolidated Rail Corp.,
544 N.Y.S.2d 308 (N.Y. 1989).
9. See e.g. Walker v. City of Scottsdale, 786 P.2d 1057
(Ariz. App. 1989) (Urban greenbelt area did not fall within
statutory definition of "premises"in Arizona's recreational use
statute because statute defined the term as "agricultural, range,
mining or forest lands and any similar lands [including]
buildings."); Monteville v. Terreborne Par. Con. Gov't, 567 So.
2d 1097, 1104 (La. 1990) (interpreting statute with the language
of the Model Act, court narrowly construed "land"to exclude a
boat launching facility because "in view of the purpose and
policy considerations of the [Model Act], . . . the statutes must
be strictly interpreted to limit liability only when the
recreational activity takes place on large, remote acreage . . .
suitable for one of the specified recreational purposes.");
Harrison v. Middlesex Water Co., 403 A.2d 910 (N.J. 1979) (term
"premises" in recreational use statute does not include land
situated in residential and populated neighborhoods.); Tijerina
v. Cornelius Christian Church, 539 P.2d 634 (Or. 1975)
("legislative history of [Oregon's recreational use statute
indicates legislative intent] to limit its application to
landholdings which tended to have recreational value but not be
susceptible to adequate policing or correction of dangerous
conditions."); Walsh v. City of Philadelphia, 585 A.2d 445 (Pa.
1991) (interpreting statute containing broad language of the
Model Act, "land" does not include asphalt-covered municipal
playground).
10. These statutes are relevant to an interpretation of AS
09.45.795 because the language they employ is very similar to the
language in AS 09.45.795. See infra notes 11-12. On it face, AS
09.45.795 reads like an amalgam of a traditional recreational use
statute and an "unimproved public land"immunity statute.
11. The court was interpreting 3(1) of the Indiana Tort
Claims Act, Ind. Code 34-4-16.5-1 which provided in part that a
"governmental entity or an employee acting within the scope of
his employment is not liable if a loss results from: (1) the
natural condition of unimproved property."
12. The statute provided:
Neither a public entity nor a public
employee is liable for an injury caused by a
condition of any unimproved public property,
including but not limited to any natural
condition of any lake, stream, bay, river or
beach.
Id. at 77 (quoting N.J. Stat. Ann. 59:4-8).
13. See also Mercer v. State, 242 Cal. Rptr. 701, 704 (Cal.
App. 1987) (construing Cal. Gov't Code 831.2 (West 1991) in a
similar fashion).
14. Of course, the judge must disregard the type of
improvements listed in AS 09.45.795(c) (i.e. trails, abandoned
roads and the like).
15. We are not unmindful of the possibility that this
consideration might discourage landowners from maintaining their
property thus making land potentially more dangerous. Certainly
placing warning signs or protective fences on property should
never be considered an improvement which defeats immunity
protections. See Mercer, 242 Cal. Rptr. at 708 (warning signs
should not be considered an improvement stripping otherwise
unimproved land of immunity). The focus should be on whether the
"improvement"is designed primarily to protect recreational users
or actually increases the value or usefulness of the land for the
benefit of the property owner.
16. It is clear that the interpretation of the phrase
"unimproved land"presents a legal question to be resolved by a
judge. Nonetheless, a jury may be required to determine whether
a particular tract of land falls within the legal definition if
material issues of fact exist as to the land's physical
condition. There are no such issues in this case. See McGee
Steel Co. v. State ex rel. McDonald Industries Alaska, Inc., 723
P.2d 611, 614 (Alaska 1986) (material issue of fact exists, for
purposes of summary judgment motion, where reasonable jurors
could disagree on resolution of factual issues).
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