       DISTRICT COURT OF APPEAL OF THE STATE OF FLORIDA
                            FOURTH DISTRICT

                            EMMA GRIFFIN,
                              Appellant,

                                    v.

   PALM BEACH COUNTY BOARD OF COUNTY COMMISSIONERS,
                a Florida governmental entity,
                           Appellee.

                             No. 4D19-1396

                             [May 20, 2020]

  Appeal from the Circuit Court for the Fifteenth Judicial Circuit, Palm
Beach    County;    James      Nutt,     Judge;    L.T.     Case     No.
502018CA003693XXXXMBAO.

   Sorraya M. Solages-Jones of Lytal, Reiter, Smith, Ivey & Fronrath, West
Palm Beach, for appellant.

   Chelsea J. Koester and Sara C. Lindsey, Assistant County Attorneys of
the Palm Beach County Attorney’s Office, West Palm Beach, for appellee.

WARNER, J.

    Emma Griffin appeals from the summary final judgment against her on
her negligence suit against Palm Beach County for injuries she suffered
when she fell into a hole on a path maintained by the County, while she
was rollerblading. The trial court granted summary judgment based upon
the application of section 316.0085(4), Florida Statutes (2017), and
Casserly v. City of Delray Beach, 228 So. 3d 135 (Fla. 4th DCA 2017).
Because the County did not allege the application of the statute as an
affirmative defense, and appellant also requested leave to amend, we
reverse.

   Griffin was 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 County
answered raising various defenses, but it did not raise section
316.0085(4), Florida Statutes (2017), as an affirmative defense.

    After discovery, the County moved for summary judgment and argued
(for the first time) that Griffin was rollerblading on the pathway which was
not specifically designated for rollerblading and therefore, pursuant to
section 316.0085, the County was immune from liability. Section
316.0085(4) provides:

         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.

The County relied on Casserly v. City of Delray Beach, 228 So. 3d 135 (Fla.
4th DCA 2017). After lengthy argument, the court granted the County’s
motion based upon Casserly and entered summary judgment. Griffin now
appeals.

    “Failure to raise an affirmative defense prior to a plaintiff's motion for
summary judgment constitutes a waiver of that defense.” Kissimmee Util.
Auth. v. Better Plastics, Inc., 526 So. 2d 46, 48 (Fla. 1988) (quoting Wyman
v. Robbins, 513 So. 2d 230 (Fla. 1st DCA 1987)). While the County argues
that Griffin did not object to its assertion of the statute as a bar, we note
in the record that her attorney did state early in the hearing, “Also, as it
relates to this statute [316.0085], this statute was not raised by
Defendant, Palm Beach County, on their affirmative defenses.” 1 Therefore,
we conclude her argument is properly preserved. Based upon Kissimmee,
we must reverse the final summary judgment.

   Our reversal should not be construed as denying the County the
opportunity to request amendment of its pleadings to assert the statutory
bar. But Griffin also requested leave to amend her pleadings to address
the affirmative defense and Casserly. Even if the County had been
permitted to argue the unpled affirmative defense at the summary
judgment hearing, Griffin should have been allowed to amend her
pleadings.

   A trial court’s ruling on a motion to amend a complaint will be reviewed
on appeal for abuse of discretion. Dimick v. Ray, 774 So. 2d 830, 832 (Fla.

1   R pdf 489.

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4th DCA 2000). A party may, with leave of the court, amend a pleading
at, or even after, a hearing on a motion for summary judgment. Armiger
v. Associated Outdoor Clubs, Inc., 48 So. 3d 864, 870 (Fla. 2d DCA 2010).
The primary consideration in determining whether a motion for leave to
amend should be granted is a test of prejudice, and such leave “should not
be denied unless the privilege has been abused or the complaint is clearly
not amendable.” New River Yachting Ctr., Inc. v. Bacchiocchi, 407 So. 2d
607, 609 (Fla. 4th DCA 1981). 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.” See 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)).

    As Griffin had not previously requested leave to amend, the privilege
had not been abused, nor had there been any showing that an amendment
would have prejudiced the County. Since the County had not filed the
statute as an affirmative defense, Griffin had no opportunity to respond to
it by amendment of her pleadings. Furthermore, she had requested leave
to amend to allege a “discovered or known trespasser” theory of liability as
set forth in the concurrence in Casserly. Because of this, we cannot say
that the amendment would have been futile. She should have had the
opportunity to amend.

   Reversed and remanded for further proceedings.

KLINGENSMITH and KUNTZ, JJ., concur.

                           *         *         *

   Not final until disposition of timely filed motion for rehearing.




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