Fourth DCA Judge Martha Warner wrote the ruling. Photo: Melanie Bell/ALM

A woman who fell into a "deep hole" while rollerblading on a Palm Beach County path got a second chance at suing the local government Wednesday, when the Fourth District Court of Appeal reversed a summary judgment over procedural issues.

The case demonstrates how early slipups could later become big headaches for litigants.

Plaintiff Emma Griffin was skating alongside Camino Del Mar Road in Boca Raton in February 2017, when she claims she pivoted to let a family pass by her. But what she couldn't see, according to the lawsuit, was that overgrown vegetation had masked a hole on the edge of the county-owned asphalt path, which resulted in a nasty fall.

Griffin sued in March 2018, alleging negligence and failure to repair a dangerous condition.

Defendant Palm Beach County Board of County Commissioners denied any wrongdoing, and later sought a summary judgment, arguing it was immune from liability because skating was not allowed on that path under Florida Statute Section 316.0085(4).

Palm Beach Circuit Judge James Nutt agreed.

But that was the wrong call, according to the Fourth DCA, because the county never included that argument in its affirmative defenses at trial.

Griffin was also denied the chance to add a "discovered or known trespasser" theory to her complaint, which could make the county liable if it knew people frequently skirted the law, and didn't act.

That request should have been granted, according to the appellate panel, which pointed to case law that says amendments should be approved unless they would prejudice the other party, the privilege has been abused or it would have no real consequence.

"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," the opinion said. "Because of this, we cannot say that the amendment would have been futile. She should have had the opportunity to amend."

Fourth DCA Judge Martha Warner wrote the ruling, backed by Mark Klingensmith and Jeffrey Kuntz. They noted the defense also has the same right to amend its affirmative defenses.

Assistant Palm Beach County attorneys Chelsea J. Koester and Sara C. Lindsey in West Palm Beach declined to comment, citing office policy. Sorraya M. Solages-Jones of Lytal, Reiter, Smith, Ivey & Fronrath in West Palm Beach represent the plaintiff and did not immediately respond to a request for comment.

Read the opinion:

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