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Florida Fourth DCA rules that Florida statute providing limited governmental immunity for injuries caused by inline skating in designated skating areas is inapplicable to non-designated areas

On September 27, 2017, in Casserly v. The City of Delray Beach, No. 4D16-1771, the Florida Fourth DCA affirmed a trial court’s dismissal of a plaintiff’s complaint in a case in which the plaintiff allegedly was injured due to rollerblading over a pothole on a City street. A Florida statute, Section 316.0085, is intended to promote skateboarding and inline skating along with other recreational activities. The statute expressly provides that if a governmental entity sets aside an area for such activities, then the entity is not liable for resulting injuries in the area in the absence of a failure to warn about a dangerous condition of which a participant does not and cannot reasonably be expected to have notice. Although the accident in this casedid not occur in a designated area, the plaintiff argued that the defendant should be subject to the failure to warn standard set forth in the statute. The City argued that another statute, Section 316.2065, which prohibits skaters on public roads, effectively precluded any determination of liability on its part. The majority opinion of the Fourth DCA panel ruled on the latter basis in affirmance of the dismissal. However, as pointed out by Judge Warner in a concurring opinion, the plaintiff’s complaint, while subject to dismissal as drafted, could have been amended to state a cause of action positing the plaintiff skater as a trespasser on the public roadway and the defendant as an owner with a duty to avoid willful and wanton harm. See Wood v. Camp, 284 So. 2d 691, 694-94 (Fla. 1973) ([t]he 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.”