The Florida Legislature's response to skateboarders and skaters: skating on thin concrete.

• Author: Jarret, Joseph G.
• Position: City, County and Local Government Law

They fly through the air with the greatest of ease and far too often land with a bone-crushing, vertebrae-jarring crunch. They are inline skaters and skateboarders ("skaters"), and they have become the bane of public sector attorneys and risk managers in numbers that seem to be growing exponentially. The preponderant challenge for a public entity's attorney and staff in terms of controlling, if you will, the activities of skaters is determining in a definitive manner the extent of an entity's exposure. Ironically, the noticeable lack of liability claims emanating from skating activities only serves to exacerbate this dilemma.

The Florida Legislature Responds

In response to the growing phenomenon that has become skating in its various forms, the Florida Legislature enacted F.S. [section] 316.0085, entitled, "Skateboarding; inline skating; freestyle bicycling; definitions; liability." (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, and freestyle bicycling.

The legislature acknowledged that the lack of public skating areas has been caused in large part by the potential exposure to liability from personal injury lawsuits, as well as the prohibitive costs of insurance. (2) While F.S. [section] 768.28 provides for a partial wavier of sovereign immunity for actions in tort filed against the State of Florida and its political subdivisions in the amount of $100,000 for any one claim or judgment and no more that $200,000 per occurrence (3), the concern remains that the cumulative effect of such lawsuits could put a stranglehold on an entity's self-insured retentions. It is important to note, however, that this legislation may not be deemed to constitute a waiver of sovereign immunity, regardless of whether the entity carries an excess insurance policy designed to augment self-insured retentions, or insurance coverage separate and distinct from self-insured retentions. (4)

At first blush, a plain reading of the statute seems to imply that neither the governmental entity, nor its employees may be held liable for injuries sustained by persons who engage in skateboarding, inline skating, and freestyle bicycling, provided the activity takes place in an area designated for the activity in question. The statutory language is illusory and can prove to be a trap for the unwary public sector attorney who may be lured into a false sense of security...