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Fla. L. Weekly D2055aTop of Form
Fla. L. Weekly D2055aTop of Form
Torts
— Municipal corporations — Pursuant to statute, city cannot be held liable
for injuries suffered by plaintiff who tripped over a pothole while
rollerblading in a city street, as the street was not an area designated for
inline skating
— Municipal corporations — Pursuant to statute, city cannot be held liable
for injuries suffered by plaintiff who tripped over a pothole while
rollerblading in a city street, as the street was not an area designated for
inline skating
JOHN CASSERLY, Appellant, v. THE
CITY OF DELRAY BEACH, Appellee. 4th District. Case No. 4D16-1771. September 27,
2017. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Thomas H. Barkdull, III, Judge; L.T. Case No.
502015CA014117XXXXMB. Counsel: Kenneth J. Ronan, Nicole C. Seropian, and John
E. Schwencke of Lavalle Brown & Ronan, P.A., Boca Raton, for appellant. R.
Max Lohman, City Attorney, and Janice Rustin, Assistant City Attorney, Delray
Beach, for appellee.
CITY OF DELRAY BEACH, Appellee. 4th District. Case No. 4D16-1771. September 27,
2017. Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach County; Thomas H. Barkdull, III, Judge; L.T. Case No.
502015CA014117XXXXMB. Counsel: Kenneth J. Ronan, Nicole C. Seropian, and John
E. Schwencke of Lavalle Brown & Ronan, P.A., Boca Raton, for appellant. R.
Max Lohman, City Attorney, and Janice Rustin, Assistant City Attorney, Delray
Beach, for appellee.
(GERBER, C.J.) The plaintiff appeals
from the circuit court’s final order granting the City’s motion to dismiss the
plaintiff’s complaint with prejudice. In the complaint, the plaintiff alleged,
in sum, that the City’s negligence in failing to repair or warn against a
pothole in the City’s street caused him injuries when he tripped over the
pothole while rollerblading in the street. The circuit court reasoned that
sections 316.0085 and 316.2065(11), Florida Statutes (2014), when read
together, precluded the City’s liability.
from the circuit court’s final order granting the City’s motion to dismiss the
plaintiff’s complaint with prejudice. In the complaint, the plaintiff alleged,
in sum, that the City’s negligence in failing to repair or warn against a
pothole in the City’s street caused him injuries when he tripped over the
pothole while rollerblading in the street. The circuit court reasoned that
sections 316.0085 and 316.2065(11), Florida Statutes (2014), when read
together, precluded the City’s liability.
The plaintiff primarily argues the
circuit court erred by ruling that sections 316.0085 and 316.2065(11) must be
read together. According to the plaintiff, each statute is clear and
unambiguous and should have been given their plain and obvious meanings, which
do not preclude the City’s liability.
circuit court erred by ruling that sections 316.0085 and 316.2065(11) must be
read together. According to the plaintiff, each statute is clear and
unambiguous and should have been given their plain and obvious meanings, which
do not preclude the City’s liability.
We agree with the plaintiff to the
extent he argues that section 316.0085 may be read on its own without
consideration of section 316.2065(11). However, reading section 316.0085 on its
own still precludes the City’s liability. Thus, we affirm the dismissal order.
extent he argues that section 316.0085 may be read on its own without
consideration of section 316.2065(11). However, reading section 316.0085 on its
own still precludes the City’s liability. Thus, we affirm the dismissal order.
Our review is de novo. See Headley
v. City of Miami, 215 So. 3d 1, 5 (Fla. 2017) (“Issues of statutory
interpretation are subject to de novo review.”); Wallace v. Dean, 3 So.
3d 1035, 1045 (Fla. 2009) (“We review de novo the dismissal of a
complaint for failure to state a cause of action.”); Execu-Tech Business
Systems, Inc. v. New Oji Paper Co. Ltd., 752 So. 2d 582, 584 (Fla. 2000)
(“A trial court’s ruling on a motion to dismiss based on a question of law is
subject to de novo review.”).
v. City of Miami, 215 So. 3d 1, 5 (Fla. 2017) (“Issues of statutory
interpretation are subject to de novo review.”); Wallace v. Dean, 3 So.
3d 1035, 1045 (Fla. 2009) (“We review de novo the dismissal of a
complaint for failure to state a cause of action.”); Execu-Tech Business
Systems, Inc. v. New Oji Paper Co. Ltd., 752 So. 2d 582, 584 (Fla. 2000)
(“A trial court’s ruling on a motion to dismiss based on a question of law is
subject to de novo review.”).
Section 316.0085, Florida Statutes
(2014), entitled “Skateboarding; inline skating; freestyle or mountain and
off-road bicycling; paintball; definitions; liability,” provides, in pertinent
part:
(2014), entitled “Skateboarding; inline skating; freestyle or mountain and
off-road bicycling; paintball; definitions; liability,” provides, in pertinent
part:
(1) The purpose of this section is to encourage governmental
owners or lessees of property to make land available to the public for
skateboarding, inline skating, paintball, and freestyle or mountain and
off-road bicycling. It is recognized that governmental owners or lessees of
property have failed to make property available for such activities because of
the exposure to liability from lawsuits and the prohibitive cost of insurance,
if insurance can be obtained for such activities. It is also recognized that
risks and dangers are inherent in these activities, which risks and dangers
should be assumed by those participating in such activities.
owners or lessees of property to make land available to the public for
skateboarding, inline skating, paintball, and freestyle or mountain and
off-road bicycling. It is recognized that governmental owners or lessees of
property have failed to make property available for such activities because of
the exposure to liability from lawsuits and the prohibitive cost of insurance,
if insurance can be obtained for such activities. It is also recognized that
risks and dangers are inherent in these activities, which risks and dangers
should be assumed by those participating in such activities.
. . . .
(3) This section does not grant authority or permission for
a person to engage in . . . inline skating . . . on property owned or
controlled by a governmental entity unless such governmental entity has
specifically designated such area for . . . inline skating . . . .
a person to engage in . . . inline skating . . . on property owned or
controlled by a governmental entity unless such governmental entity has
specifically designated such area for . . . inline skating . . . .
(4) A governmental entity or public employee is not liable
to any person who voluntarily participates in . . . inline skating . . . for
any damage or injury to property or persons which arises out of a person’s
participation in such activity, and which takes place in an area designated for
such activity.
to any person who voluntarily participates in . . . inline skating . . . for
any damage or injury to property or persons which arises out of a person’s
participation in such activity, and which takes place in an area designated for
such activity.
(5) This section does not limit liability that would
otherwise exist for any of the following:
otherwise exist for any of the following:
(a) The failure of the governmental entity or public employee
to guard against or warn of a dangerous condition of which a participant does
not and cannot reasonably be expected to have notice.
to guard against or warn of a dangerous condition of which a participant does
not and cannot reasonably be expected to have notice.
. . . .
(7)(a) Any person who participates in or assists in . . .
inline skating . . . assumes the known and unknown inherent risks in these
activities irrespective of age, and is legally responsible for all damages,
injury, or death to himself or herself or other persons or property which
result from these activities. . . . A governmental entity that sponsors,
allows, or permits . . . inline skating . . . on its property is not required
to eliminate, alter, or control the inherent risks in these activities.
inline skating . . . assumes the known and unknown inherent risks in these
activities irrespective of age, and is legally responsible for all damages,
injury, or death to himself or herself or other persons or property which
result from these activities. . . . A governmental entity that sponsors,
allows, or permits . . . inline skating . . . on its property is not required
to eliminate, alter, or control the inherent risks in these activities.
§ 316.0085, Fla. Stat. (2014).
Here, the plaintiff conceded that he
was inline skating in an area not designated for such activity. Nevertheless,
the plaintiff, in his first argument, attempts to use that fact to his
advantage, and then, in his second argument, attempts to circumvent that fact
to his advantage. We reject both arguments as leading to absurd results. See
Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995) (“If possible, the
courts should avoid a statutory interpretation which leads to an absurd
result.”).
was inline skating in an area not designated for such activity. Nevertheless,
the plaintiff, in his first argument, attempts to use that fact to his
advantage, and then, in his second argument, attempts to circumvent that fact
to his advantage. We reject both arguments as leading to absurd results. See
Amente v. Newman, 653 So. 2d 1030, 1032 (Fla. 1995) (“If possible, the
courts should avoid a statutory interpretation which leads to an absurd
result.”).
First, the plaintiff argues that
because the Legislature’s expressed intent in subsection (4) was to preclude
governmental liability where a person is damaged or injured while inline
skating “in an area designated for such activity,” then subsection (4)’s
preclusion of governmental liability does not apply to him because he was
inline skating in an area not designated for such activity.
because the Legislature’s expressed intent in subsection (4) was to preclude
governmental liability where a person is damaged or injured while inline
skating “in an area designated for such activity,” then subsection (4)’s
preclusion of governmental liability does not apply to him because he was
inline skating in an area not designated for such activity.
We reject this first argument as
leading to an absurd result. Given the Legislature’s expressed intent in
subsection (4) to absolve a governmental entity from liability where a person
is damaged or injured while inline skating “in an area designated for such
activity,” it would be an absurd result to hold a governmental entity liable
where a person is damaged or injured while inline skating in an area not designated
for such activity. This is especially true given subsection (7)’s admonitions
that:
leading to an absurd result. Given the Legislature’s expressed intent in
subsection (4) to absolve a governmental entity from liability where a person
is damaged or injured while inline skating “in an area designated for such
activity,” it would be an absurd result to hold a governmental entity liable
where a person is damaged or injured while inline skating in an area not designated
for such activity. This is especially true given subsection (7)’s admonitions
that:
· “Any person who participates in or assists in . . . inline
skating . . . assumes the known and unknown inherent risks in these activities
irrespective of age, and is legally responsible for all damages, injury, or
death to himself or herself or other persons or property which result from
these activities”; and
skating . . . assumes the known and unknown inherent risks in these activities
irrespective of age, and is legally responsible for all damages, injury, or
death to himself or herself or other persons or property which result from
these activities”; and
· “A governmental entity that sponsors, allows, or permits .
. . inline skating . . . on its property is not required to eliminate, alter,
or control the inherent risks in these activities.”
. . inline skating . . . on its property is not required to eliminate, alter,
or control the inherent risks in these activities.”
Second, the plaintiff argues that
the Legislature’s expressed intent in subsection (5)(a) to permit governmental
liability for “[t]he failure of the governmental entity or public employee to
guard against or warn of a dangerous condition of which a participant does not
and cannot reasonably be expected to have notice,” applies to his claim even
though he was damaged or injured while inline skating in an area not designated
for such activity.
the Legislature’s expressed intent in subsection (5)(a) to permit governmental
liability for “[t]he failure of the governmental entity or public employee to
guard against or warn of a dangerous condition of which a participant does not
and cannot reasonably be expected to have notice,” applies to his claim even
though he was damaged or injured while inline skating in an area not designated
for such activity.
We reject this second argument as
also leading to an absurd result. Given the Legislature’s express statement in
subsection (3) that section 316.0085 “does not grant authority or permission
for a person to engage in . . . inline skating . . . on property owned or
controlled by a governmental entity unless such governmental entity has
specifically designated such area for . . . inline skating . . . “(emphasis
added), it would be an absurd result to conclude that the Legislature
nevertheless intended to permit governmental liability under subsection (5)(a)
where a person is damaged or injured while inline skating in an area not designated
for such activity.
also leading to an absurd result. Given the Legislature’s express statement in
subsection (3) that section 316.0085 “does not grant authority or permission
for a person to engage in . . . inline skating . . . on property owned or
controlled by a governmental entity unless such governmental entity has
specifically designated such area for . . . inline skating . . . “(emphasis
added), it would be an absurd result to conclude that the Legislature
nevertheless intended to permit governmental liability under subsection (5)(a)
where a person is damaged or injured while inline skating in an area not designated
for such activity.
Given our conclusion that section
316.0085, read on its own, precludes the City’s liability, we also conclude
that the circuit court’s error, ruling that sections 316.0085 and 316.2065(11)
must be read together, was harmless. Dade Cnty. Sch. Bd. v. Radio Station
WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I]f a trial court reaches the
right result, but for the wrong reasons, it will be upheld if there is any basis
which would support the judgment in the record.”).
316.0085, read on its own, precludes the City’s liability, we also conclude
that the circuit court’s error, ruling that sections 316.0085 and 316.2065(11)
must be read together, was harmless. Dade Cnty. Sch. Bd. v. Radio Station
WQBA, 731 So. 2d 638, 644 (Fla. 1999) (“[I]f a trial court reaches the
right result, but for the wrong reasons, it will be upheld if there is any basis
which would support the judgment in the record.”).
In any event, to the extent the
circuit court’s ruling may have implicitly recognized that section
316.2065(11), like section 316.0085, supported dismissal of the plaintiff’s
claim, we agree with such recognition. Section 316.2065(11) provides:
circuit court’s ruling may have implicitly recognized that section
316.2065(11), like section 316.0085, supported dismissal of the plaintiff’s
claim, we agree with such recognition. Section 316.2065(11) provides:
No person upon roller skates, or riding in or by means of any coaster, toy vehicle, or
similar device, may go upon any roadway except while crossing a street
on a crosswalk; and, when so crossing, such person shall be granted all
rights and shall be subject to all of the duties applicable to pedestrians.
similar device, may go upon any roadway except while crossing a street
on a crosswalk; and, when so crossing, such person shall be granted all
rights and shall be subject to all of the duties applicable to pedestrians.
§ 316.2065(11), Fla. Stat. (2014)
(emphasis added). The emphasized plain language supports the conclusion that it
would be an absurd result for the Legislature to permit governmental liability
under section 316.2065(11) where a person is damaged or injured while inline
skating upon a roadway but not “while crossing a street on a crosswalk.”
(emphasis added). The emphasized plain language supports the conclusion that it
would be an absurd result for the Legislature to permit governmental liability
under section 316.2065(11) where a person is damaged or injured while inline
skating upon a roadway but not “while crossing a street on a crosswalk.”
The plaintiff’s final argument on
appeal is that the circuit court improperly considered matters beyond the four
corners of the complaint in determining the legal sufficiency of whether the
plaintiff stated a cause of action. Specifically, the plaintiff cites to a
portion of the hearing transcript in which the circuit court asked the
plaintiff’s counsel whether any allegation reasonably could be made that the
plaintiff was within the street’s crosswalk at the time of the accident.
appeal is that the circuit court improperly considered matters beyond the four
corners of the complaint in determining the legal sufficiency of whether the
plaintiff stated a cause of action. Specifically, the plaintiff cites to a
portion of the hearing transcript in which the circuit court asked the
plaintiff’s counsel whether any allegation reasonably could be made that the
plaintiff was within the street’s crosswalk at the time of the accident.
We disagree with the plaintiff’s
final argument. As the plaintiff acknowledges in his initial brief, the circuit
court expressly stated that its purpose in asking the question was not to
assist the court in determining how to rule on the City’s motion to dismiss,
but in determining whether to give the plaintiff the opportunity to file an
amended complaint alleging that the plaintiff was inline skating in a
permissible area:
final argument. As the plaintiff acknowledges in his initial brief, the circuit
court expressly stated that its purpose in asking the question was not to
assist the court in determining how to rule on the City’s motion to dismiss,
but in determining whether to give the plaintiff the opportunity to file an
amended complaint alleging that the plaintiff was inline skating in a
permissible area:
So it’s dismissed with prejudice. And the reason it’s
dismissed with prejudice is if — I asked the question earlier could you plead
that he was in a crosswalk which would have taken it out — it would have put
it in one of the exceptions. And when I found out that you didn’t have facts to
be able to plead he was in a crosswalk, otherwise I would have given you the
opportunity to amend to plead with specificity that he was, in fact, in a
crosswalk and therefore the statute would not have applied to him.
dismissed with prejudice is if — I asked the question earlier could you plead
that he was in a crosswalk which would have taken it out — it would have put
it in one of the exceptions. And when I found out that you didn’t have facts to
be able to plead he was in a crosswalk, otherwise I would have given you the
opportunity to amend to plead with specificity that he was, in fact, in a
crosswalk and therefore the statute would not have applied to him.
(emphasis added). See McCray v.
Bellsouth Telecommunications, Inc., 213 So. 3d 938, 939 (Fla. 4th DCA 2017)
(“Refusal to allow an amendment is an abuse of the trial court’s discretion
unless it clearly appears that allowing the amendment would prejudice the
opposing party, the privilege to amend has been abused, or amendment would
be futile.”) (emphasis added; citation omitted).
Bellsouth Telecommunications, Inc., 213 So. 3d 938, 939 (Fla. 4th DCA 2017)
(“Refusal to allow an amendment is an abuse of the trial court’s discretion
unless it clearly appears that allowing the amendment would prejudice the
opposing party, the privilege to amend has been abused, or amendment would
be futile.”) (emphasis added; citation omitted).
Our colleague’s concurring opinion
theorizes that, if the plaintiff had been able to plead the complaint
differently, the plaintiff may have been able to state a cause of action under
the common law duty owed to a trespasser. We choose not to address our
colleague’s theory for two reasons: (1) the plaintiff did not preserve this
argument before the circuit court, see Aills v. Boemi, 29 So. 3d 1105,
1109 (Fla. 2010) (“Except in cases of fundamental error, an appellate court
cannot consider any ground for objection not presented to the trial court.”)
(citation omitted); and (2) the plaintiff has not raised this argument in his
initial brief, much less in this appeal, see Tillery v. Fla. Dep’t of Juv.
Justice, 104 So. 3d 1253, 1255 (Fla. 1st DCA 2013) (“[A]n argument not
raised in an initial brief is waived . . . .”).
theorizes that, if the plaintiff had been able to plead the complaint
differently, the plaintiff may have been able to state a cause of action under
the common law duty owed to a trespasser. We choose not to address our
colleague’s theory for two reasons: (1) the plaintiff did not preserve this
argument before the circuit court, see Aills v. Boemi, 29 So. 3d 1105,
1109 (Fla. 2010) (“Except in cases of fundamental error, an appellate court
cannot consider any ground for objection not presented to the trial court.”)
(citation omitted); and (2) the plaintiff has not raised this argument in his
initial brief, much less in this appeal, see Tillery v. Fla. Dep’t of Juv.
Justice, 104 So. 3d 1253, 1255 (Fla. 1st DCA 2013) (“[A]n argument not
raised in an initial brief is waived . . . .”).
Based on the foregoing, we affirm
the circuit court’s dismissal order.
the circuit court’s dismissal order.
Affirmed. (FORST, J., concurs. WARNER, J., concurs with an opinion.)
__________________
(WARNER, J., concurring.) While I
disagree with the majority’s reasoning, I agree that the complaint did not
state a cause of action against the City. The trial court dismissed appellant’s
complaint alleging negligence by the City of Delray Beach (“the City”) in the
repair of a street where appellant was injured while rollerblading. It
concluded that the City was not liable as a matter of law based on section
316.2065, Florida Statutes (2014), which prohibits skaters on public roads, and
section 316.0085, Florida Statutes (2014), which limits a governmental entity’s
liability for injuries to persons while skating or biking in areas designated
for such activities. Although the statutes do not preclude all liability of the
City, the complaint still did not state a cause of action.
disagree with the majority’s reasoning, I agree that the complaint did not
state a cause of action against the City. The trial court dismissed appellant’s
complaint alleging negligence by the City of Delray Beach (“the City”) in the
repair of a street where appellant was injured while rollerblading. It
concluded that the City was not liable as a matter of law based on section
316.2065, Florida Statutes (2014), which prohibits skaters on public roads, and
section 316.0085, Florida Statutes (2014), which limits a governmental entity’s
liability for injuries to persons while skating or biking in areas designated
for such activities. Although the statutes do not preclude all liability of the
City, the complaint still did not state a cause of action.
Appellant filed a complaint against
the City for injuries he received while rollerblading on one of the City’s
streets. The complaint alleged that his inline skate became embedded in a
pothole, causing him to fall and sustain injuries. A City employee had attempted
to repair the pothole earlier the same day, but no signs or warnings had been
placed around the improperly repaired pothole to alert people of the newly
placed asphalt. Appellant alleged that the City was negligent for “[f]ailure to
provide its users of the public thoroughfare with the exercise of reasonable
and ordinary care to keep and maintain the roadways, especially the asphalt on
Boone Drive, in a condition safe for use by the public[.]”
the City for injuries he received while rollerblading on one of the City’s
streets. The complaint alleged that his inline skate became embedded in a
pothole, causing him to fall and sustain injuries. A City employee had attempted
to repair the pothole earlier the same day, but no signs or warnings had been
placed around the improperly repaired pothole to alert people of the newly
placed asphalt. Appellant alleged that the City was negligent for “[f]ailure to
provide its users of the public thoroughfare with the exercise of reasonable
and ordinary care to keep and maintain the roadways, especially the asphalt on
Boone Drive, in a condition safe for use by the public[.]”
The City moved to dismiss based upon
sections 316.0085 and 316.2065, Florida Statutes. It argued that inline skating
or rollerblading upon a roadway was prohibited under section 316.2065(11),
which provides that no person upon roller skates may go upon any roadway except
while crossing a street on a crosswalk. The City further contended that the
Florida Legislature expressly limited liability for injuries to persons who are
rollerblading, recognizing in section 316.0085(7) that rollerbladers assume all
known and unknown risks inherent in the activity. The trial court conducted a
hearing on the motion to dismiss and granted the motion with prejudice, finding
that the two statutes must be read in pari materia in order to harmonize the
legislature’s intent. It ruled that appellant assumed the risk of injury by
skating and was solely liable under section 316.0085(1) and (7)(a). Thus, the
court granted the motion to dismiss with prejudice and denied a motion for
rehearing. Appellant appeals the order of dismissal.
sections 316.0085 and 316.2065, Florida Statutes. It argued that inline skating
or rollerblading upon a roadway was prohibited under section 316.2065(11),
which provides that no person upon roller skates may go upon any roadway except
while crossing a street on a crosswalk. The City further contended that the
Florida Legislature expressly limited liability for injuries to persons who are
rollerblading, recognizing in section 316.0085(7) that rollerbladers assume all
known and unknown risks inherent in the activity. The trial court conducted a
hearing on the motion to dismiss and granted the motion with prejudice, finding
that the two statutes must be read in pari materia in order to harmonize the
legislature’s intent. It ruled that appellant assumed the risk of injury by
skating and was solely liable under section 316.0085(1) and (7)(a). Thus, the
court granted the motion to dismiss with prejudice and denied a motion for
rehearing. Appellant appeals the order of dismissal.
The trial court’s ruling held as a
matter of law that the City was not liable based upon a reading of both section
316.2065 and section 316.0085. A trial court’s ruling on a motion to dismiss
based on a question of law is reviewed de novo. Execu-Tech Bus. Sys.,
Inc. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000).
matter of law that the City was not liable based upon a reading of both section
316.2065 and section 316.0085. A trial court’s ruling on a motion to dismiss
based on a question of law is reviewed de novo. Execu-Tech Bus. Sys.,
Inc. v. New Oji Paper Co., 752 So. 2d 582, 584 (Fla. 2000).
Section 316.2065, entitled “Bicycle
regulations[,]” is part of the Florida Uniform Traffic Control Law, and
provides:
regulations[,]” is part of the Florida Uniform Traffic Control Law, and
provides:
No person upon roller skates, or riding in or by means of
any coaster, toy vehicle, or similar device, may go upon any roadway except
while crossing a street on a crosswalk; and, when so crossing, such person
shall be granted all rights and shall be subject to all of the duties
applicable to pedestrians.
any coaster, toy vehicle, or similar device, may go upon any roadway except
while crossing a street on a crosswalk; and, when so crossing, such person
shall be granted all rights and shall be subject to all of the duties
applicable to pedestrians.
§ 316.2065(11), Fla. Stat. (2014).
As the City acknowledges in its brief, ordinarily a court would look to common
law theories to determine the extent of liability of the governmental entity
where a roller skater was injured in a public roadway. Here, the statute
prohibits skating in the roadway, and a violation is considered a non-criminal
traffic offense. Therefore, because of the statutory prohibition, a skater is
in the position of a trespasser on the public roadway. See Norris v. City of
Miami, 367 So. 2d 1038 (Fla. 3d DCA 1979) (where ordinance made it unlawful
to trim trees on public right of way without a permit, a person injured while
trimming trees on a right of way without a permit was a trespasser to which
City owed duty to avoid willful and wanton harm or, if discovered, to warn of
dangers not open to ordinary observation). Wood v. Camp, 284 So. 2d 691
(Fla. 1973), set forth the duty owed by a property owner to a trespasser:
As the City acknowledges in its brief, ordinarily a court would look to common
law theories to determine the extent of liability of the governmental entity
where a roller skater was injured in a public roadway. Here, the statute
prohibits skating in the roadway, and a violation is considered a non-criminal
traffic offense. Therefore, because of the statutory prohibition, a skater is
in the position of a trespasser on the public roadway. See Norris v. City of
Miami, 367 So. 2d 1038 (Fla. 3d DCA 1979) (where ordinance made it unlawful
to trim trees on public right of way without a permit, a person injured while
trimming trees on a right of way without a permit was a trespasser to which
City owed duty to avoid willful and wanton harm or, if discovered, to warn of
dangers not open to ordinary observation). Wood v. Camp, 284 So. 2d 691
(Fla. 1973), set forth the duty owed by a property owner to a trespasser:
The unwavering rule as to a trespasser is that the property
owner is under the duty only to avoid willful and wanton harm to him and upon
discovery of his presence to warn him of known dangers not open to ordinary
observation.
owner is under the duty only to avoid willful and wanton harm to him and upon
discovery of his presence to warn him of known dangers not open to ordinary
observation.
Id. at 693-94. The complaint neither alleged any act
constituting “willful and wanton harm” nor did it allege that appellant’s
presence was discovered such that a duty to warn arose. Instead, the complaint
proceeded on the theory that appellant was authorized to skate on the street.
Because appellant was in the position of a trespasser, the complaint failed to
state a cause of action against the City for a breach of its limited duties in
this circumstance.
constituting “willful and wanton harm” nor did it allege that appellant’s
presence was discovered such that a duty to warn arose. Instead, the complaint
proceeded on the theory that appellant was authorized to skate on the street.
Because appellant was in the position of a trespasser, the complaint failed to
state a cause of action against the City for a breach of its limited duties in
this circumstance.
The City further contends that even
if there was a duty which the City violated, section 316.0085 absolves it of
liability. Section 316.0085, of Florida Uniform Traffic Control Laws, which is
entitled “Skateboarding; inline skating; freestyle or mountain and off-road
bicycling; paintball; definitions; liability,” created a comprehensive
framework to allow the government to provide recreational activities for
skateboarding, skating, off-road bicycling, and paintball without the government
incurring liability for injuries or the high expense of insurance. The relevant
portions of the statute provide:
if there was a duty which the City violated, section 316.0085 absolves it of
liability. Section 316.0085, of Florida Uniform Traffic Control Laws, which is
entitled “Skateboarding; inline skating; freestyle or mountain and off-road
bicycling; paintball; definitions; liability,” created a comprehensive
framework to allow the government to provide recreational activities for
skateboarding, skating, off-road bicycling, and paintball without the government
incurring liability for injuries or the high expense of insurance. The relevant
portions of the statute provide:
(1) The purpose of this section is to encourage governmental
owners or lessees of property to make land available to the public for skateboarding,
inline skating, paintball, and freestyle or mountain and off-road bicycling. It
is recognized that governmental owners or lessees of property have failed to
make property available for such activities because of the exposure to
liability from lawsuits and the prohibitive cost of insurance, if insurance can
be obtained for such activities. It is also recognized that risks and dangers
are inherent in these activities, which risks and dangers should be assumed by
those participating in such activities.
owners or lessees of property to make land available to the public for skateboarding,
inline skating, paintball, and freestyle or mountain and off-road bicycling. It
is recognized that governmental owners or lessees of property have failed to
make property available for such activities because of the exposure to
liability from lawsuits and the prohibitive cost of insurance, if insurance can
be obtained for such activities. It is also recognized that risks and dangers
are inherent in these activities, which risks and dangers should be assumed by
those participating in such activities.
(2) As used in this section, the term:
. . . .
(b) “Inherent risk” means those dangers or conditions
that are characteristic of, intrinsic to, or an integral part of skateboarding,
inline skating, paintball, and freestyle or mountain and off-road bicycling.
that are characteristic of, intrinsic to, or an integral part of skateboarding,
inline skating, paintball, and freestyle or mountain and off-road bicycling.
. . . .
(4) A governmental entity or public employee is not liable
to any person who voluntarily participates in skateboarding, inline skating,
paintball, or freestyle or mountain and off-road bicycling for any damage or
injury to property or persons which arises out of a person’s participation in
such activity, and which takes place in an area designated for such activity.
to any person who voluntarily participates in skateboarding, inline skating,
paintball, or freestyle or mountain and off-road bicycling for any damage or
injury to property or persons which arises out of a person’s participation in
such activity, and which takes place in an area designated for such activity.
(5) This section does not limit liability that would
otherwise exist for any of the following:
otherwise exist for any of the following:
(a) The failure of the governmental entity or public
employee to guard against or warn of a dangerous condition of which a
participant does not and cannot reasonably be expected to have notice.
employee to guard against or warn of a dangerous condition of which a
participant does not and cannot reasonably be expected to have notice.
(b) An act of gross negligence by the governmental entity or
public employee that is the proximate cause of the injury.
public employee that is the proximate cause of the injury.
. . . .
Nothing in this subsection creates a duty of care or basis
of liability for death, personal injury, or damage to personal property.
Nothing in this section shall be deemed to be a waiver of sovereign immunity
under any circumstances.
of liability for death, personal injury, or damage to personal property.
Nothing in this section shall be deemed to be a waiver of sovereign immunity
under any circumstances.
. . . .
(7)(a) Any person who participates in or assists in
skateboarding, inline skating, paintball, or freestyle or mountain and off-road
bicycling assumes the known and unknown inherent risks in these activities irrespective
of age, and is legally responsible for all damages, injury, or death to himself
or herself or other persons or property which result from these activities. . .
. A governmental entity that sponsors, allows, or permits skateboarding, inline
skating, paintball, or freestyle or mountain or off-road bicycling on its
property is not required to eliminate, alter, or control the inherent risks in
these activities.
skateboarding, inline skating, paintball, or freestyle or mountain and off-road
bicycling assumes the known and unknown inherent risks in these activities irrespective
of age, and is legally responsible for all damages, injury, or death to himself
or herself or other persons or property which result from these activities. . .
. A governmental entity that sponsors, allows, or permits skateboarding, inline
skating, paintball, or freestyle or mountain or off-road bicycling on its
property is not required to eliminate, alter, or control the inherent risks in
these activities.
§ 316.0085, Fla. Stat. (2014)
(emphasis added).
(emphasis added).
As noted in the first paragraph of
the statute, the statute’s purpose is to limit governmental liability for
injuries as a means of encouraging governments to provide places where these
popular activities can take place. § 316.0085(1), Fla. Stat. (2014). The
government is not liable for damages or injuries which occur to the participant
while engaged in these activities when they take place at a
government-designated area for the activity, except where the government
has failed to warn of a dangerous condition of which the participant does not
know and would not be expected to know. § 316.0085(4), (5)(a), Fla. Stat.
(2014). This is consistent with a property owner’s duty to a discovered
trespasser. See Wood, 284 So. 2d at 693-94. Thus, the governmental
entity does not have complete immunity from liability under section 316.0085.
the statute, the statute’s purpose is to limit governmental liability for
injuries as a means of encouraging governments to provide places where these
popular activities can take place. § 316.0085(1), Fla. Stat. (2014). The
government is not liable for damages or injuries which occur to the participant
while engaged in these activities when they take place at a
government-designated area for the activity, except where the government
has failed to warn of a dangerous condition of which the participant does not
know and would not be expected to know. § 316.0085(4), (5)(a), Fla. Stat.
(2014). This is consistent with a property owner’s duty to a discovered
trespasser. See Wood, 284 So. 2d at 693-94. Thus, the governmental
entity does not have complete immunity from liability under section 316.0085.
Further, under section
316.0085(7)(a), the participant assumes the “inherent risks” of the activity,
which are defined in section 316.0085(2)(b) as “dangers or conditions that are
characteristic of, intrinsic to, or an integral part of . . . inline
skating[.]” Matters such as faulty repair of the skating surface are surely not
an “integral part” of skating. Therefore, the statutes, read separately or in
pari materia, do not suggest complete immunity from liability. Instead, each
depends upon the status of the injured person and the circumstances of the
accident.
316.0085(7)(a), the participant assumes the “inherent risks” of the activity,
which are defined in section 316.0085(2)(b) as “dangers or conditions that are
characteristic of, intrinsic to, or an integral part of . . . inline
skating[.]” Matters such as faulty repair of the skating surface are surely not
an “integral part” of skating. Therefore, the statutes, read separately or in
pari materia, do not suggest complete immunity from liability. Instead, each
depends upon the status of the injured person and the circumstances of the
accident.
Appellant alleged in his complaint
that he was legally rollerblading on the street, but pursuant to section
316.2065(11), he was prohibited from using the street for such activities, thus
making him a trespasser. He alleges negligence against the City for failure to
properly maintain and repair the street, a duty not owed by the City to a
trespasser, nor are they duties owed under section 316.0085 to appellant. He also
alleges a failure to warn, which might create a duty to a discovered
trespasser, but the allegations do not support his status as such. Because the
complaint failed to allege any duty owed by the City, I agree that the
complaint was properly dismissed.
that he was legally rollerblading on the street, but pursuant to section
316.2065(11), he was prohibited from using the street for such activities, thus
making him a trespasser. He alleges negligence against the City for failure to
properly maintain and repair the street, a duty not owed by the City to a
trespasser, nor are they duties owed under section 316.0085 to appellant. He also
alleges a failure to warn, which might create a duty to a discovered
trespasser, but the allegations do not support his status as such. Because the
complaint failed to allege any duty owed by the City, I agree that the
complaint was properly dismissed.
* * *