        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.
   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



                                     2
      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



                                      3
       •   “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)



                                       4
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.


                                      5
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


                                      6
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


                                     7
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.




                                     8
      (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



                                     9
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.




                                     10
