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Florida Fourth DCA reverses summary judgment for county premises liability defendant, concluding that county waived statutory immunity from liability for in-line skating injury by not including as an affirmative defense

On May 20, 2020, in Griffin v. Palm Beach County Board of County Commissioners, No. 4D19-1396, the Florida Fourth DCA reversed a trial court ruling granting summary judgment to defendant Palm Beach County in a premises liability case. The plaintiff had been rollerblading on an asphalt pathway maintained by the County. When a family approached, she stepped off the path and fell into a deep hole and was injured. The hole next to the pathway was obscured from her view by vegetation overgrowing the path. She filed a complaint against the County alleging negligence in failing to warn of a dangerous condition as well as failure to repair a dangerous condition. The trial court granted the County’ summary judgment motion based on Fla. Stat. 316.0085, which provides in pertinent part that 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. However, the County had not raised the statutory immunity as an affirmative defense in its answer to the complaint or at any time prior to the plaintiff’s motion for summary judgment. The Fourth DCA cited Kissimmee Util. Auth. v. Better Plastics, Inc., 526 So. 2d 46, 48 (Fla. 1988) (“[f]ailure to raise an affirmative defense prior to a plaintiff's motion for summary judgment constitutes a waiver of that defense”). The Fourth DCA noted that its reversal should not be construed as denying the County the opportunity to request amendment of its pleadings to assert the statutory bar, but the plaintiff also requested leave to amend her pleadings to address the affirmative defense. The Court opined that even if the County had been permitted to argue the unpled affirmative defense at the summary judgment hearing, the plaintiff would have then been entitled to amend her pleadings. The Fourth DCA noted than an amendment should be allowed “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,” quoting from Video Indep. Med. Examination, Inc. v. City of Weston, 792 So. 2d 680, 681 (Fla. 4th DCA 2001) (quoting Spradley v. Stick, 622 So. 2d 610, 613 (Fla. 1st DCA 1993)).