DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA

FOURTH DISTRICT

JOHN CASSERLY,

Appellant,

v.

THE CITY OF DELRAY BEACH,

Appellee.

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.

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.

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.

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.
2

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.”).

Section 316.0085, Florida Statutes (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.

. . . .

(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 . . . .

(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.

(5) This section does not limit liability that would 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 
3

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. 

§ 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.”).

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.

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:

• “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
4

• “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.”

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.

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.

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.”).

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:

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.

§ 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) 
5

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.

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:

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.

(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).

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. 
6

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.

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.

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 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 
7

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).

Section 316.2065, entitled “Bicycle 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. 

§ 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:

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. 

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 
8

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:

(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. 

(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. 

. . . . 

(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. 
9

(5) This section does not limit liability that would 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. 

(b) An act of gross negligence by the governmental entity or 

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. 

. . . . 

(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.

§ 316.0085, Fla. Stat. (2014) (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 
10

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.

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. 

* * *

Not final until disposition of timely filed motion for rehearing.