author: May, J.

text:
    LLANO FINANCING GROUP, LLC, Appellant, v. Roger YESPY, individual, and Gulfstream Appraisal Company, an inactive Florida corporation, Appellees.
    No. 4D16-2007
    District Court of Appeal of Florida, Fourth District.
    [August 23, 2017]

      Robert J. Hauser of Pankauski Hauser PLLC, West Palm Beach, for appellant.

      Scott A. Cole and Daniel M. Schwarz of Cole Scott & Kissane, P.A., Miami,- and Thomas L. Hunker of Cole, Scott & Kis-sane, P.A., Fort Lauderdale, for appellee Roger Yespy.
   May, J.

This is a case of the missing link—the claim servicer’s standing to pursue negligence claims against a property appraiser, A third-party claim servicer appeals an order dismissing its amended complaint against an individual and his company for negligence- in the appraisal of the mortgaged property. It argues the trial court erred in dismissing the amended complaint with prejudice. We disagree and affirm.

The claim servicer filed a coniplaint against the property appraiser for professional negligence and false information negligently supplied for the guidance of others. The property appraiser moved to dismiss the complaint, arguing the claim servicer did not have standing,' failed to properly assert the causes of action or attach loan documents, and was bari*ed by the statute of limitations. The trial court granted the motion to dismiss without prejudice, giving the claim servicer thirty (30) days to amend the complaint.

The claim servicer amended the complaint, and alleged the original lender- refinanced a mortgage secured by real property. To obtain the loan, the borrower employed a. mortgage broker, who hired the property appraiser to- prepare an appraisal for the property, The property appraiser valued the property, and listed the mortgage broker as “Lender/Client.”

• The appraisal provided for the mortgage broker to distribute the report to the borrower, other lenders, the mortgagee or its successors and assigns, and secondary market participants. It also stated: “[t]he borrower, another lender ..., the mortgagee or its successors and assigns, mortgage insurers, ... and other secondary market participants may rely on this appraisal report as part of any mortgage finance transaction ....” (Emphasis added). put, it provided that the intended user is the “lender/client.” In a different section, the appraisal stated: “THE CLIENT IS THE INTENDED USER OF THIS REPORT. NO OTHER INTENDED USERS HAVE BEEN IDENTIFIED BY THE APPRAISER.”

The original lender-subsequently transferred the underlying mortgage to Impac Funding Corporation (“Impac”), which later sold it to Impac CMB Trust Series 2005-1 (the “Trust”). Impac,' -the Trust, and Deutsche Bank National Trust Company (“Trustee”) entered into a master servicing agreement. The parties agreed that Impac would service the loans for the benefit of the Trustee.

The agreement granted Impac the right to file and collect insurance claims, institute lawsuits relating to delinquent or non-performing mortgage loans within the trust, and enter into 'subservicing agreements to delegate duties. Impac entered into a subservicing agreement with Savant LG, LLC (“Savant”), assigning all of its legal rights to assert negligence claims against real estate appraisers and other tortfeasors. However, Impac had never been assigned those rights,

Savant then assigned its rights to the claim servicer, The amended complaint alleged that .the claim servicer stood in the shoes of the Trust, which relied upon the appraisal. It alleged that when the foreclosed property was sold, the claim servi-cer discovered the property’s value was substantially less than the appraised value. The claim servicer argued the loss was due to the property appraiser’s .negligence, including its use of dissimilar comparable properties.

The property appraiser moved to dismiss and strike the amended complaint on the same grounds contained in its original motion to dismiss. The trial court granted the motion with prejudice to the professional negligence count. It found the claim servicer alleged a loss occurred when, the property was foreclosed, and the mortgage holder knew or’ should have known that the appraisal misrepresented the value' of the property. The two-year statute of limitations ran ten months before the coha-plaint was filed.

The court dismissed the false information negligently supplied count for the. same reasons, finding that the ordinary negligence claim accrued at the time of the negligent act. The trial court entered a final judgment for the property appraiser. The claim servicer now appeals.

While the trial court relied on the statute of limitations defense as the basis for its dismissal of the amended complaint, we affirm on an alternative ground argued by the property appraiser; the claim servicer lacked standing to sue the property appraiser. See Dade Cty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638 (Fla. 1999).

The claim servicer argues, that it properly alleged standing, which is all that Florida Rule of Civil Procedure 1.120(a) requires. It further claims that Impac, who assigned its rights to Savant, which in turn assigned its rights to the claim servicer, is within the class of persons or entities with a cause of action under Restatement (Second) of Torts § 552 (Am. Law. Inst. 1977). Lastly, it argues that the complaint can be amended.

The property appraiser responds that the amended complaint and exhibits establish the claim servicer lacked , standing , to file suit. It argues the amended complaint failed to' allege .that Impac or the claim servicer were ever assigned the original lender’s rights to sue the property appraiser for negligence. Nor does the claim ser-vicer have a claim under section 552,' as it .was not an intended user ,of the appraisal. We .agree,with the property appraiser op both points.

We have de novo review. Equity Premium, Inc. v. Twin City Fire Ins. Co., 956 So.2d 1257, 1259 (Fla. 4th DCA 2007).

“In determining whether to dismiss a complaint for lack of standing, wé must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true.” Gordon v. Kleinman, 120 So.3d 120, 121 (Fla. 4th DCA 2013) (quoting Wheeler v. Powers, 972 So.2d 285, 288 (Fla. 5th DCA 2008)). In determining whether a party has standing, the court must determine “whether the plaintiff has" a sufficient interest at stake in the controversy which will be affected by the outcome of the litigation,” Wexler v. Lepore, 878 So.2d 1276, 1280 (Fla. 4th DCA 2004).

The claim servicer’s argument that it had only to allege standing, and was not required to prove standing, under Florida Rule of Civil Procedure 1.120(a) is misplaced. That rule provides:

It is not, necessary to aver the capacity of a party to sue or be sued, the authority of a party to sue or be sued in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of tlie court.

(Emphasis added).

Rule 1.120(a) addresses capacity— not standing. Capacity is the absence of a legal disability preventing a party from coming into court. See Keehn v. Joseph C. Mackey and Co., 420 So.2d 398, 399 n.1 (Fla. 4th DCA 1982). Standing requires a sufficient interest in the outcome of litigation before the court- will consider the matter. Id.

' The claim servicer next argues that lack of standing is an affirmative defense, which the appraiser failed to raise. Many decisions characterize lack of standing as an affirmative defense. See, e.g., Jaffer v. Chase Home Fin., LLC, 155 So.3d 1199, 1202 (Fla. 4th DCA 2015). But, “[i]f the face of the complaint contains allegations which demonstrate the existence of an affirmative defense, then such a defense may be considered on a motion to dismiss.” Papa John’s Int’l, Inc. v. Cosentino, 916 So.2d 977, 983 (Fla. 4th DCA 2005); see also Fla. R. Civ. P. 1.110(d). Here, the complaint's allegations “demonstrate the existence of [the] affirmative [standing] defense” thereby allowing its consideration in the property appraiser’s motion to dismiss.

Now that these procedural arguments are resolved, we address the standing issue.

The claim servicer alleged the original lender issued a loan based on a negligent appraisal. The original lender transferred the mortgage to Impac prior to the foreclosure. That agreement granted Impac the right to file and collect insurance claims, institute lawsuits relating to delinquent or non-performing mortgage loans within the trust, and enter into subservic-ing agreements to delegate duties. It did not however assign to Impac the original lender’s right to pursue negligence claims.

Impac then assigned its rights to Savant, including “all of its legal rights to assert negligence claims against real estate appraisers and other tortfeasors.” Savant then assigned those rights to the claim servicer.

The amended complaint and attached assignment did not reveal an assignment of the original lender’s right to pursue negligence claims against the property appraiser to Impac. Alleging that the original lender assigned the note and mortgage to Impac is not equivalent to alleging that the original lender assigned its right to pursue negligence claims. See Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490, 496 (Fla. 3d DCA 1994).

In Ginsberg, the assignee of a mortgage and note brought negligence claims for damage to an apartment complex. Ginsberg, 645 So.2d at 495-96. The Third District held that the complaint and its exhibits did not demonstrate that the assignment, which stated that it assigned all rights and interests in the mortgage and related collateral, conveyed the right to assert any cause of action previously held by the assignor, including any. tort claims. Id. at 496.

Here, while the assignment of the note and mortgage provided Impac with the ability, to enforce the note and foreclose on the property, that assignment did not include the right to bring negligence claims. The property appraiser prepared the report for the original lender, not Impac, Savant, or the claim servicer. The amended complaint failed to, and indeed could not in good faith, allege that the original lender assigned those rights to Impac. It therefore did not have the ability to assign those rights to Savant. And, Savant did not have the ability to assign those rights to the claim servicer.

Put simply, the claim servicer was not in privity with the property appraiser, never acquired a right to file negligence claims, and therefore lacked standing to sue for professional negligence.

Nevertheless, the claim servicer argues that Impac had independent standing on behalf of the purchaser of the loan on the open market, regardless of whether the original lender assigned its rights to pursue negligence claims. The claim servicer relies on the Restatement (Second) of Torts § 552 (Am. Law Inst. 1977):

§ 552 Information Negligently Supplied for the Guidance of Others
(1) One who, in the course of his business, profession or employment ... supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information ....
(2) [T]he liability stated in Subsection (1) is limited to loss suffered
(a) by the person or one of a limited group of persons for whose benefit and guidance he intends to supply the information or knows that the recipient intends to supply it; and
(b) through reliance upon it in a transaction that he intends the information to influence or knows that the recipient so intends or in a substantially similar transaction.

The claim servicer argues that the property appraiser intended to induce it to rely on the negligent misrepresentation in the appraisal. We disagree.

The Second District provides guidance on this issue. See Cooper v. Brakora & Assocs., Inc., 838 So.2d 679, 681-82 (Fla. 2d DCA 2003). There, the court held a purchaser did not have a negligent misrepresentation action against an appraiser hired by a bank to evaluate a purchaser’s loan. Id.

[SJection 552 will create great uncertainty unless the concept of a business transaction is narrowly defined. Accordingly, the “transaction” associated with an appraisal that is obtained purely for financing purposes after a contract for sale has been executed is the loan transaction. To permit section 552 to create a tort claim against a residential appraiser ... would expand the meaning of “transaction” beyond that contemplated in the ordinary business relationship within which an appraisal for a lender is performed.

Id. at 682.

Similarly, while the original lender could bring an action against the property appraiser for reasonably relying on the appraisal, Impac could not. The appraisal did not provide an independent basis for a third-party to sue for negligence. This is especially true where the contract language limited the appraisal’s application.

The appraisal provided for distribution to others, but limited reliance on the report to its use for the purpose “of any mortgage finance transaction” (Emphasis added). It specified the intended user as the “lender/client.” And, it indicated that “NO OTHER INTENDED USERS HAVE BEEN IDENTIFIED BY THE APPRAISER.” Thus, both case law and the appraisal’s language prohibit justifiable reliance by individuals or entities other than those involved in the mortgage finance transaction. See Haslett v. Broward Health Imperial Point Med. Ctr., 197 So.3d 124, 127 (Fla. 4th DCA 2016).

The claim servicer’s standing to pursue negligence claims against the property appraiser is missing. Even accepting the complaint’s allegations as true, they do not show the claim servicer’s standing, either by assignment or independently, to bring the alleged negligence claims against the property appraiser.

We therefore affirm the dismissal of the claim servicer’s amended complaint.

Affirmed.

Klingensmith and Kuntz, JJ., concur.

      . For ease of reference, we refer to the individual and the company collectively as the property appraiser.

      . Because of our decision on standing, we need not address the statute of limitations and failure to state a claim issues,


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Artis KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-0029
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]
    Carey Haughwout, Public Defender, and Jesse W. Isom, Assistant Public Defender, West Palm Beach, for appellant,
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anesha Worthy, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Affirmed. Rogers v. State, 223 So.3d 281, 282, 2017 WL 2858921 (Fla. 4th DCA July 5, 2017).

Warner, Damoorgian and Ciklin, JJ., concur.


text:
    Anthony H. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D17-1952
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]
    Anthony H. Taylor, South Bay, pro se.
    No appearance for appellee.
   Per Curiam.

We sua sponte redesignate the proceeding as an appeal of order issued under Florida Rule of Criminal Procedure 3.800 and affirm. Tambriz-Ramirez v. State, 213 So.3d 920 (Fla. 4th DCA 2017).

Affirmed..

Ciklin, Levine and Conner, JJ., concur.


author: Klingensmith, J.

text:
    PHILIP MORRIS USA, INC., and R.J. Reynolds Tobacco Company, Appellants, v. Rose POLLARI, as Personal Representative of the Estate of Paul Pollari, Appellee.
    No. 4D16-334
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Joseph H. Lang, Jr.,- of Carlton Fields Jorden Burt, P.A., Tampa, Lauren R. Goldman and Michael Rayfield of Mayer Brown LLP, New York, NY, for appellant/cross-appellee Philip Morris USA, Inc.
    William L. Durham II, Val Leppert and Philip Green of King & Spalding LLP, Atlanta, GA, for appellani/cross-appellee R.J. Reynolds Tobacco Company.
    Courtney Brewer and John S.' Mills of The Mills Firm, P.A., Tallahassee, for ap-pellee/cross-appellant.
   Klingensmith, J.

Philip Morris USA, Inc. (“PM”) and R.J. Reynolds Tobacco Co. (“RJR”) (collectively, “Defendants”) appeal the final judgment of an Engle progeny case in favor of Rose Pollari (“Plaintiff’), as personal representative of the estate of her deceased husband, Paul Pollari. Though the parties raise numerous issues on appeal and cross-appeal, we write only to address Defendants’ argument that the trial court erred by admitting into evidence several Surgeon General’s Reports on cigarettes (the “Reports”). On that issue, we agree and reverse.

Before trial, Defendants moved to exclude from evidence as inadmissible hearsay “Surgeon Generals’ reports .., that have been published in the last 20 years," including the Reports from 2010, 2012, and 2014. Plaintiff did not dispute the Reports were hearsay,- but- argued they were admissible under the exceptions for public records and adoptive- admissions. The trial court denied Defendants’ motion, clearing the way for their later admission into evidence.

At trial, Plaintiffs counsel endorsed the Surgeon General as a leading medical authority “on cigarette smoking and- health and nicotine addiction.” Wide-ranging excerpts from the 2010, 2012, and 2014 Reports were admitted as evidence and made available to the jury during deliberations. The record is clear that Plaintiff’s counsel relied on these Reports at every major stage of the trial for numerous propositions, and read various portions during opening statements, the presentation of expert witness testimony, and closing arguments.

In response to Defendants’" appeal, Plaintiff makes three arguments' to support the admissibility of the Reports:' (1) the Reports were not hearsay because they .were not offered for the truth of the matters asserted, but only to show notice; (2) the Reports qualified under the public records exception to hearsay; and (3) the Reports qualified as adoptive admissions by Defendants under an exception to hearsay. After careful.consideration, this court has determined that each of these arguments lack merit, and the Reports should not have been admitted into evidence at trial.

“A trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion,” Jones v. State, 127 So.3d 622, 624 (Fla. 4th DCA 2013), but legal questions of whether evidence “falls within the statutory definition of hearsay,” or “is admissible in evidence under an exception to the hearsay rule” are reviewed de novo. Smith v. State, 186 So.3d 1056, 1060 (Fla. 4th DCA 2016) (quoting Browne v. State, 132 So.3d 312, 316 (Fla. 4th DCA 2014)).

A. THE SURGEON GENERAL .REPORTS WERE HEARSAY

In her answer brief, Plaintiff suggests the Reports were not hearsay because they were not offered to prove the truth of the matters asserted therein. This argument lacks merit.

Under the Florida Evidence Code, “ ‘[hjearsay’ is a statement, other than the one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” § 90.801(1)(e), Fla. Stat. (2015). Hearsay statements are “inadmissible at trial except as specifically provide[d] by statute.” Reynolds v. State, 934 So.2d 1128, 1139 (Fla. 2006); see also § 90.802, Fla. Stat. (2015). Such statements can only be admitted into evidence if “offered in strict compliance with the requirements” of a statutory exception to the hearsay rule. Yisrael v. State, 993 So.2d 952, 957 (Fla. 2008). As the party introducing the Reports, Plaintiff had the burden to show that the Reports were not hearsay or were subject to a statutory exception. Id. at 956.

The Reports were hearsay because they consisted of multiple levels of out-of-court statements by several declarants who did not testify at trial, and were offered to prove their truth. § 90.801(1)(a), Fla. Stat. (2015). The trial transcript shows that at all stages of the trial, Plaintiff made various factual declarations by directly citing content from the Reports. Any assertion that they were not used at trial as proof of the truth of various statements in the Reports is belied by the record.

B. THE REPORTS WERE INADMISSIBLE AS PUBLIC RECORDS

An exception to the general rule prohibiting the admission of hearsay evidence allows for the admission of certain categories of public records and reports. Under this exception, a court can admit:

Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, ... unless the sources of information or other circumstances show their lack of trustworthiness.

§ 90.803(8), Fla. Stat. (2015); see also Lee v. Dep't of Health & Rehab. Servs., 698 So.2d 1194, 1201 (Fla. 1997) (stating that “[u]nder this provision, two types of public records and reports are admissible into evidence: (1) records setting forth ‘the activities of the office or agency' and (2) records of a public office or agency which set forth ‘matters observed pursuant to duty imposed by law as to which' matters there was a duty to report’” (quoting Charles W. Ehrhardt, Florida, Evidence § 803.8 (1996 ed.))). Again, “[i]f evidence is to be admitted under one of the exceptions to the hearsay rule, it must be offered in strict compliance with the requirements of the particular exception.” Coates v. State, 217 So.3d 1048, 1050 (Fla. 4th DCA 2017) (quoting Yisrael, 993 So.2d at 957)).

The Reports do not fall under the first category of the exception because they were not records or reports of “the activities” of the Surgeon General’s Office or other government agency. As this court has previously explained, “[t]he exception for ‘the activities of the office or agency* is generally understood to include factual reports focused on the essential functions of the office or agency.” Benjamin v. Tandem Healthcare, Inc., 93 So.3d 1076, 1082 (Fla. 4th DCA 2012). To meet this exception, proffered documents may do no more than “simply set forth the activities of the government agency.” Nationwide Mut. Fire Ins. Co. v. Darragh, 95 So.3d 897, 900 (Fla. 5th DCA 2012). The types of records or reports admissible under this category include such things as “records showing the receipts and disbursements of a governmental department or official reports of a statistical nature.” Benjamin, 93 So.3d at 1082 (listing cases where such examples qualified).

In Benjamin, this court deemed admissible a Food and Drug Administration (“FDA”) advisory that was “an official report providing information of a statistical nature regarding certain medications” as public “records setting forth the activities of the office or agency” since “[i]t set[] forth the activities of the agency pursuant to the FDA’s statutory duty to take appropriate action to ensure drug safety.” Id. at 1083. This is markedly distinguishable from the instant case because the Reports at issue here contained more than just statistics insofar as they “rel[ied] on information supplied by outside [non-government] sources,” and “contained] evaluations or statements of opinion by a public official.” Lee, 698 So.2d at 1201.

In line with our decision in Benjamin, other cases have also established that the first category of the exception, known as the “activities” category, is intended to encompass only those public records of a factual nature involving the core functions of a government agency, not advocacy reports or compilations and reviews of outside research or contributions. Compare Darragh, 95 So.3d at 900 (holding that printouts of government website allowing users to estimate potential military benefits based upon users’ assumptions about the future were inadmissible under section 90.803(8), as they “d[id] not simply set forth the activities of a government agency”), with Gatlin v. State, 618 So.2d 765, 766 (Fla. 2d DCA 1993) (finding that state’s affidavit detailing costs of prosecution fell within first category of the public records exception).

The Reports also do not fall within the second category of the public records exception, as they were not “based upon a public official’s first-hand observation of an event.” Yisrael, 993 So.2d at 959. The Office of the Surgeon General of the United States reports on the health effects of smoking cigarettes on a biennial basis. Compiled with input by various members of the scientific and academic community, the Reports are collections of statements and opinions by numerous authors. Because the majority of the Reports’ contributors and editors were not public officials, the Reports at best could be said to represent a collaborative effort by both government and non-government persons. That said, no public official, including the Surgeon General, had personal knowledge of the information provided in the Reports. Likewise, most if not all the Reports’ authors did not directly observe the testing of the tobacco products referenced or the other matters covered, and instead relied on surveys of relevant literature to draw conclusions therefrom. Hence, there is no basis to conclude that any of the Reports’ non-g'overnment contributors directly observed the matters that were the subjects of the Reports, or much less had a “duty to report” such observations (as the statute requires). See § 90.803(8), Fla. Stat.; Yisrael, 993 So.2d at 959.

The Lee case is dispositive of this issue. There, a party used as evidence an investigative report prepared by a government employee containing “statements of witnesses, as well as [the employee’s] opinions and conclusions.” 698 So.2d at 1197. The Florida Supreme Court found that this report was inadmissible “under , the public record and reports exception to the hearsay rule.” Id. at 1200. After addressing the two categories of the public, records exception, the court explained that “[i]n adopting this exception, Florida specifically excluded a third type of record that is admissible under the corresponding federal rule: that is, a record setting forth factual findings resulting from an investigation made pursuant to authority granted by law.” 698 So.2d at 1201 (internal quotes and citation omitted). The court explained that, consequent to that specific exclusion, records relying “on information supplied by outside sources or that contain evaluations or statements of opinion by a public official are inadmissible,” and' determined the government investigative report was inadmissible under the “matters observed” category of Florida’s public records exception due to -its reliance on statements of non-government witnesses. Id.; see also Carter v. State, 951 So.2d 939, 943 (Fla. 4th DCA 2007) (holding that police report containing, victim affidavit was not admissible under public records exception); Reichenberg v. Davis, 846 So.2d 1233, 1234 (Fla. 5th DCA 2003) (holding that agency reports of-government investigations containing witness interviews were not admissible under public records exception because statements in reports were not based upon personal knowledge of government agent).

This case also draws, parallels with Wetherill v. University of Chicago, 518 F.Supp. 1387, 1390-91 (N.D. Ill. 1981). In Wetherill, the court deemed untrustworthy a report , about the effects of a drug published by what is now the Department of Health and Human Services and prepared by an “ad hoc task force” of government professionals and “a large group of consultants” consisting of “both doctors and nonprofessionals, several of whom were active in organized efforts to expose the allegedly harmful effects of [the drug].” Id. Like the Surgeon General’s legal authority to issue the Reports here, the creation of the ad hoc report in that case derived from the Surgeon General’s statutory authority. Id. at 1388. Nonetheless, the court held the report was inadmissible for numerous rear sons, including untrustworthiness. Id. at 1389-91. While several factors independently contributed to the report’s lack of trustworthiness, the court was “particularly troubled by the presence of interested parties on the consulting staff’ who had been “actively involved” in litigation related to the drug. Id. at 1390-91. The Reports at issue here are- similar to the report deemed inadmissible in the Wetherill case, as they were not the product of a “neutral fact-finding investigation.” Id. at 1391. For that reason, our supreme court has cautioned that “in appropriate eases, both the business- and public-records exceptions are subject to ‘trustworthiness’ exclusions (i.e., if the records—despite their otherwise admissible status—show a lack of trustworthiness, courts may deem the records inadmissible).” Yisrael, 993 So.2d at 961.

The Surgeon. General’s Reports clearly fit only under that third category found in the Federal Rules as records relying on information supplied by outside sources and gathered during an investigation. Lee, 698 So.2d at 1201. The United States Court of Appeals for the Eighth Circuit in Boerner v. Brown & Williamson Tobacco Co., 394 F.3d 594, 600 (8th Cir. 2005), reached that same conclusion when it affirmed a district court’s admission of several Surgeon General Reports on smoking as public records falling under that third category. The Eighth Circuit concluded that even though the reports included factual findings “made by independent scientists and not on the basis of independent research by the Surgeon General,” they were admissible because they were prepared by “a disinterested governmental agency” pursuant to a legal obligation “to report new and current information on smoking and health to the U.S. Congress,” Id. at 600-01 (citation omitted). However, as the Lee opinion instructs, while such records may be admissible under the rules of the federal court system, they are clearly inadmissible under the Florida Evidence Code. 698 So.2d at 1201.

Therefore, given the inapplicability of the “activities” category to these Reports, this court finds that they do not fall within either category of Florida’s public records exception to hearsay. Likewise, the Reports were also inadmissible under the “matters observed” category of the public records exception because they were compilations of studies, research and conclusions of various non-governmental authorities. Charles W. Ehrhardt, Florida Evidence § 803.8 (2017 ed.) (“When the information in the record is based on the personal knowledge of a person who is not a public official or employee, it is not admissible under 90.803(8),”).

C. THE REPORTS WERE INADMISSIBLE AS ADOPTIVE ADMISSIONS

Here, we consider Plaintiffs contention that third-party statements incorporated not by the direct use of selected quotations but by hyperlink to an entire document is sufficiently adoptive to permit an opposing party’s use of quotes from that document as admissions under section 90.803(18)(b), Florida Statutes (2015). In arguing for the admission of the Reports, Plaintiff cited portions of PM’s website that directed visitors to be “guided by” the Surgeon General’s messages, stated that PM “support[s] a single, consistent public health message on the role of smoking in the development of disease in smokers, and on smoking and addiction,” and provided a link to the Reports. Along the same lines, Plaintiff noted RJR’s website also provided links to the Reports and stated that RJR “believes that individuals should rely on conclusions of the U.S. ’ Surgeon Génefal .,. when making decisions regarding smoking.”

In light of these statements and links, the crux of Plaintiffs, argument is that Defendants effectively adopted the statements to which their- websites provided links. In essence, Plaintiff asks us to accept the proposition that linking to third-party web content, thereby acting as -a conduit to that information, evinces an endorsement or agreement with every statement and bit of information contained therein. On this record, we decline to do so. .

Section 90.803(18)(b) defines an adoptive ádmission as “[a] statement that is offered against a party ... of which the party has manifested an adoption or belief in its truth.” Alternatively stated:

[W]hen an adverse party manifests a belief in or adopts the statement of another person as his or her own, the statement is treated- as an adoptive admission under section 90.803(18)(b). An adoptive admission occurs either when there is a direct expression by the adverse party assenting to the statement of another or when the conduct of the adverse party circumstantially indicates the party’s assent to the truth of the statement.

Jones, 127 So.3d at 624 (emphases added) (internal quotes and citations omitted) (holding that age disclosed on a driver’s license constituted an admission where the party swore to the truth of the statements made in the, license application); see Twilegar v. State, 42 So.3d 177, 198 (Fla. 2010) (finding that jailhouse phone call was admissible as adoptive admission where inmate “was a knowing and active participant in the recorded conversations and ... had ample opportunity to refute or contradict any of the statements that were adverse to his interests; instead, he acquiesced in the statements”); State v. Palmore, 510 So.2d 1152, 1153 (Fla. 3d DCA 1987) (“Palmore expressly manifested his belief in the truth of the statements contained in the motion tu dismiss, thereby adopting those statements as his own.”); Saudi Arabian Airlines Corp. v. Dunn, 438 So.2d 116, 119 (Fla. 1st DCA 1983) (ruling that company’s use of employee’s previous deposition testimony to support its summary judgment motion constituted an adoptive admission); see also State v. Anderson, 210 Ariz. 327, 339, 111 P.3d 369, 381 (2005) (en banc) (“Adoption occurs when a defendant affirmatively agrees to statements made in his presence, or expounds on the statements by adding his own ‘explanations and comments.’ ” (citation omitted)).

Under section 90.803(18)(b), certain statements made or adopted by an opposing party are admissible and may be offered against that party. As discussed in greater detail below, Plaintiff relies on the theory of “adoption by use,” whereby a party’s use of or reliance on the hearsay statement of another may constitute' an “adoption” of the statement’s truth within the meaning of the rule. See, e.g., White Indus., Inc. v. Cessna Aircraft Co., 611 F.Supp. 1049, 1062-63 (W.D. Mo. 1985) (discussing the “adoption by use” theory under Federal Rule of Evidence 801(d)(2)(B)).

Unlike other hearsay exceptions, an admission does not require a guarantee of trustworthiness; because section 90.803(18)(b) concerns either a party’s own statement or a statement that may be attributed to a party, a policy of fairness permits those statements to be used against that party. Ring Power Corp. v. Condado-Perez, 219 So.3d 1028, 1030-31 (Fla. 2d DCA June 21, 2017); see Fed. R. Evid. 801(d)(2) advisory committee’s notes (“Admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in evidence is the result of the adversary system rather than satisfaction of the conditions of the hearsay rule.”). Since “a party can hardly complain that he had no opportunity to cross-examine himself at the time the admissions were made ... the fundamental reason for excluding this hearsay evidence is not present.” Metro. Dade Cty. v. Yearly, 580 So.2d 186, 188 (Fla. 3d DCA 1991); see also Globe v. State, 877 So.2d 663, 673 (Fla. 2004) (“[Statements admitted as adoptive admissions do not implicate the Confrontation Clause.”).

Numerous cases have held that statements found on websites are hearsay, and must be viewed as such when considering whether they should be admitted into evidence. See, e.g., United States v. Jackson, 208 F.3d 633, 637 (7th Cir. 2000) (“The web postings were not statements made by declarants testifying at trial, and they were being offered to prove the truth of the matter asserted. That means they were hearsay.”). Generally, a party’s website content may be considered as its own statement and thus used as evidence against it, see, e.g., Van Westrienen v. Americontinental Collection Corp., 94 F.Supp.2d 1087, 1109 (D. Or. 2000), but a finding of adoptive approval of a third party’s statement must be decided in light of the circumstances surrounding the statement’s use. Shemman v. Am. S.S. Co., 89 Mich.App. 656, 280 N.W.2d 852, 860 (1979).

Consistent with both the Florida and Federal rules, it is not enough that an opposing party “merely repeats” the underlying hearsay; indeed, the party must make use of the hearsay in a manner that “manifesto a belief in [its] trustworthiness,” or otherwise reflects the party’s incorporation of the substance of the hearsay into a statement that the party itself either made or authorized. See Sea-Land Serv., Inc. v. Lozen Int’l, LLC, 285 F.3d 808, 821 (9th Cir. 2002) (determining that an employee’s forwarded e-mail originating from a third party was admissible since it was prefaced with language manifesting a belief in the veracity of the original email’s content); Schering Corp. v. Pfizer Inc., 189 F.3d 218, 238-39 (2d Cir. 1999) (holding that survey results were adoptive' admissions where an employee of defendant wrote a report summarizing the results of a survey of physicians and drawing conclusions about the types of messages being communicated to physicians by company representatives); Wagstaff v. Protective Apparel Corp., 760 F.2d 1074, 1078 (10th Cir. 1985) (finding that newspaper articles were admissible under rule 801(d)(2)(B) where the defendant reprinted and distributed articles that made- representations about the defendant’s financial condition because “[b]y- reprinting the newspaper articles and distributing them to persons with whom clefendants were doing business, defendants unequivocally manifested their adoption of the inflated statements made in the 'newspaper' articles”); Grundberg v. Upjohn Co., 137 F.R.D. 365, 370 (D. Utah 1991) (holding that a party adopted clinical reports by non-party physicians when it used the reports to help secure FDA approval of new drug). Thus, a website link alone cannot be construed as either an admission, tacit approval or acceptance of the content of the linked information or third-party statement. To prove that a website link to third-party sources amounts to an adoptive admission, a proponent must show that the opposing party also “manifested an adoption or belief in the truth” of the- statements in those links. § 90.803(18)(b), Fla. Stat.

Simply providing a hyperlink on a website to a document or source does not constitute an express manifestation of an adoption or belief in the statements and opinions contained within them. Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135, 148 n.12, 131 S.Ct. 2296, 180 L.Ed.2d 166 (2011) (reasoning that defendant was not subject to liability for securities fraud by providing link to fraudulent prospectus on its website since “[m]erely hosting a document on a [website] does not indicate that the hosting entity adopts the document as its own statement or exercises.control over its content”), The fact, that a party links to or posts on its website material from another source, or otherwise hosts or references third-party documents on its website does not by itself constitute .a clear demonstration of intent to adopt. See Fenner v. Suthers, 194 F.Supp.2d 1146, 1149 (D. Colo. 2002) (holding that material from websites was inadmissible because proponent failed to. explain whether the source “sponsors, endorses,, collects, or simply provides the information, on the [websites]”); Aikens v. Cty. of Ventura, No. B221992, 2011 WL 2811458, at *5 (Cal. Ct. App. June 30, 2011) (ruling that county’s posting of a study performed by federal government did not constitute an adoptive admission of the truth of the contents of the study, as “[t]he mere posting of a document on a party’s website does not manifest the party’s ‘adoption’ of the document or ‘his belief in its truth’ ”).

The act of “adoption” in this case did not occur when Defendants simply provided a link to the Reports as a means for consumers to obtain a balance of information for making informed choices about product usage. When doing so, a party does not vouch for the veracity of the linked information any more than a sender of a text or e-mail containing an attached news article, e-mail, or some other document necessarily endorses or adopts all the attachment’s contents (without otherwise manifesting an adoption or belief -in the truth thereof). Compare Janus Capital Grp., Inc., 564 U.S. at 148 n.12, 131 S.Ct. 2296, with United States v. Safavian, 435 F.Supp.2d 36, 43-44 (D.D.C. 2006) (finding that “[t]he context and content of certain e-mails demonstrate clearly that Mr. Safavian manifested an adoption or belief in the truth of the statements of other people as he forwarded their e-mails,” while “[o]ther e-mails forwarded by Mr. Safavian do not clearly demonstrate his adoption of the contents, and therefore are not admitted under Rule 801(d)(2)(B)”).

Defendants argue that the Reports could not be adoptive admissions because Defendants had not, and as a practical matter could not, independently verify or agree with all the statements contained therein. Although this is certainly true, that is not the test for admissibility under section 90,803(18)(b). The adoption of a third-party statement does not require perspnal knowledge of the statement’s veracity. Pillsbury Co. v. Cleaver-Brooks Div. of Aqua-Chem, Inc., 646 F.2d 1216, 1218 n.2 (8th Cir. 1981). All that is required to find an adoption of another’s statement is some form of agreement, or in other situations, silence under circumstances whére the statement “was so accusatory iii nature that ... silence may be inferred to have been assent to its truth.” State v. Hernandez, 875 So.2d 1271, 1274 (Fla. 3d DCA 2004).

Although the use of a specific disclaimer certainly evinces the intent that referenced third-party statements should not be perceived as adoptive admissions, the absence of one does not constitute silence sufficient to create a binding admission. Regardless, Defendants affirmatively disclaimed any acceptance or reliance on the Reports so as to preclude the application of section 90.803(18)(b). For example, PM’s disclaimer on their website states as follows:

The Altria Corporate Websites may include links to other sites, some of them operated by other Altria Group companies and some of them operated by third parties. These links are provided as a convenience to you and as an additional avenue of access to the information contained therein. We have, not necessarily reviewed all of the information on other third party sites and are not responsible for the content of any other third party sites or any products or services that may be offered through other third party sites. Third-party sites may contain information with which we do or do not agree. Inclusion of links to other sites should not be viewed as our endorsement of the content of linked sites. We are not responsible for any losses, damages or other liabilities incurred as a result of your use of any linked third party sites.

(Emphasis added). Similarly, RJR’s. disclaimer on their website states, “[t]he links on this page are provided as a convenience, but R.J. Reynolds Tobacco Company is not responsible for the content on the linked websites. The statements and views available on those sites do not necessarily represent the views of R.J. Reynolds or its management.”

Plaintiff alleges that Defendants’ adoption arises, not just from mere linking, but also from advising consumers that they should be “guided by” and “rely on” the linked Reports. Such language does not equate to an expression of intent to adopt the statements as their own, especially when considered in conjunction with the more specific disclaimers in place on their websites. These disclaimers show that Defendants unambiguously repudiated any endorsement or ratification of the content of the sources to which they linked. It cannot be said that Defendants intended to .adopt these third-party statements while simultaneously disclaiming their* intent to do so. Stating that consumers should “rely on” or be “guided by” what the Surgeon General' says about smoking and health issues is a far cry from “manifesting] an adoption or belief in [the] truth” of the specific statements in the Reports. See § 90.803(18)(b), Fla.' Stat. Nothing else found on Defendants’ websites “manifested an adoption or belief in [the] truth” of any statements in the linked Reports, and Defendants did not otherwise manifest assent thereto. Id. Here, there was no “direct expression” by Defendants assenting to the truth of. the specific, prejudicial excerpts from the Reports that Plaintiff presented to the jury. To the contrary, Defendants explicitly clarified on their websites that they did not necessarily agree with the positions contained in the documents linked.

The internet remains “one large catalyst for rumor, innuendo, and misinformation,” lacking effective formal mechanisms of authentication. St. Clair v. Johnny’s Oyster & Shrimp, Inc., 76 F.Supp.2d 773, 774-75 (S.D. Tex. 1999). Despite advances in technology and the ability to fact-check more readily, separating fact from fiction nonetheless remains a daunting task for the average consumer of internet information. With that comes the inherent risk that inaccurate information can appear legitimate, and may inadvertently be perpetuated despite the best of intentions. Understanding that reality, holding a purveyor of web content accountable for providing its viewers access to a broad range of information would open a “Pandora’s Box” where they could be legally bound by almost any statement or content found on a linked webpage or document—including unfiltered visitor comments, third-party advertising, or additional links to other sources—all without regard to whether that content is disputed, controversial, or conflicting. This would serve no purpose other than to chill the dissemination of information by deterring website owners or operators from incorporating any third-party content for fear of tying themselves to the yoke of those sources.

Defendants’ use of hyperlinks to the Reports was neither a direct nor indirect expression of assent, and did not represent their “intended assertion of the truth of the information therein.” White Indus., Inc., 611 F.Supp. at 1062. Further, Defendants posted clear disclaimers as to any agreement therewith, made no statements of express agreement with the contents of the linked documents, and did not otherwise use selected quotes from the Reports for their own purposes. Accordingly, we find that the linked Reports on Defendants’ websites do not quality as adoptive admissions under section 90.803(18).

D. THE EXPERT’S REFERENCES TO THE REPORTS WERE IMPROPER

One of Plaintiffs experts at trial was Dr. Robert Proctor, who was one of the editors of the 2014 Report. Using other published sources for impeachment purposes, Defendants cross-examined Dr. Proctor on whether the public health community was divided about the dangers of filtered cigarettes compared to unfiltered cigarettes. On redirect examination, Plaintiff attempted to counter the impeachment by inquiring about the 2014 Report’s conclusions (the trial court had already improperly permitted the Report to be received into evidence). RJR objected to improper bolstering, asking how the Report fit “within the scope of cross-examination”; Plaintiff responded that the Report was relevant because it “deals with the subject of filters and whether filters were actually safer.” The trial court overruled the objection. Thereafter, Dr. Proctor testified about the 2014 Report’s conclusion that filtered cigarettes increased the risk of adenocarci-noma (a type of lung cancer) by causing smokers to inhale more deeply, and by ventilating in a way‘that “increases certain poisonous compounds.” On appeal, Defendants argue that Plaintiff should not have been permitted to use the 2014 Report to bolster the testimony of her expert witness. On this point, we also agree with Defendants.

It is well established that “experts cannot bolster or corroborate their opinions with the opinions of other experts who do not testify,” as -“[s]ueh testimony improperly permits one expert to become a conduit for the opinion of another expert who is not subject to cross-examination.” Schwarz v. State, 695 So.2d 452, 455 (Fla. 4th DCA 1997) (holding that any probative value of bolstered testimony is “substantially outweighed by the danger of unfair prejudice, confusion of issues, [or] misleading the jury” (quoting § 90.403, Fla. Stat.)); accord Tolbert v. State, 114 So.3d 291, 294 (Fla. 4th DCA 2013) (“Although an expert may rely on hearsay in reaching the expert’s opinion, an expert’s testimony may not merely be used as a conduit for the introduction of the otherwise inadmissible evidence.” (internal quotes and citation omitted)); see also Liberatore v. Kaufman, 835 So.2d 404, 407 (Fla. 4th DCA 2003) (listing cases prohibiting bolstering of expert testimony on direct examination). The use of articles, journals or treatises as substantive evidence has long been held improper under Florida law “because the opposing party cannot cross-examine and impeach the source of the hearsay.” Darragh, 95 So.3d at 901 (quoting Duss v. Garcia, 80 So.3d 358, 364 (Fla. 1st DCA 2012)). In the same way, allowing an expert to bolster his or her testimony is strictly forbidden because it “deprives the opposing party of the opportunity to cross-examine the non-testifying experts.” Miller v. State, 127 So.3d 580, 586 (Fla. 4th DCA 2012).

Florida’s rule prohibiting the bolstering of expert opinions with authoritative publications derives from section 90.706, Florida Statutes (2015), which allows the use of a publication on cross-examination of an expert witness if the expert, recognizes it as authoritative. State Dep’t of Corr. v. Junod, 217 So.3d 200, 208

(Fla. 1st DCA 2017). Because section 90.706 only provides for the use of such treatises or publications on cross-examination, the statute “does not allow statements in a learned treatise to be used as substantive evidence since the treatise is hearsay if it is offered as substantive evidence.” Green v. Goldberg, 630 So.2d 606, 609 (Fla. 4th DCA 1993). Such authoritative sources “cannot be used to bolster the credibility of an expert or to supplement an opinion of the expert which has already been formed.” Erwin v. Todd, 699 So.2d 275, 278 (Fla. 5th DCA 1997); see Linn v. Fossum, 946 So.2d 1032, 1039 (Fla. 2006) (“This is consistent with the general rule that it is improper on direct examination to introduce evidence to support the credibility of a witness.”). “[T]he mere mention of [a publication] provides credibility to the expert’s opinion not available to the opposing expert.” Cordoba v. Rodriguez, 939 So.2d 319, 322 (Fla. 4th DCA 2006).

Expert witnesses may properly rely upon hearsay in arriving at an opinion so long as “the hearsay is of the type reasonably relied upon by experts in the field.” Vega v. State Farm Mut. Auto., 45 So.3d 43, 45 (Fla. 5th DCA 2010) (explaining that facts or data used to support the opinion expressed “need not be admissible in evidence if they are of the type reasonably relied upon by experts in the subject”); accord Tolbert, 114 So.3d at 294. Still, experts may not bolster their testimony by testifying about the substantive content of published materials. See Linn, 946 So.2d at 1038-39 (“Usually, experts can testify that they formed their opinions in reliance on sources that contain inadmissible information without also conveying the substance of the inadmissible information.”).

In Phillip Morris, Inc. v. Janoff, 901 So.2d 141, 143 (Fla. 3d DCA 2004), the defendants asked their expert witness on redirect examination whether various “authoritative textbooks and journals” supported the- plaintiffs theory of causation, which was contrary to that witness’s medical opinion on causation. The expert testified that those materials did not support the. plaintiffs causation theory. Id. The trial court found' that this constituted impermissible bolstering and ordered a new trial. Id.-at 142. The Third District Court of Appeal affirmed, reasoning that defense counsel’s “listing the litany of authoritative sources” that lacked support for ithe plaintiffs causation theory “was solely to bolster the defense expert’s opinion by showing that his opinion must be correct because it was supported by the lack - of articles stating otherwise.” Id. at 145; see also In re S.E., 946 So.2d 620, 622 (Fla. 2d DCA 2007) (reversing for new - trial where expert “improperly bolstered his opinion- by testifying regarding the contents of three articles published in the Journal of Neurosurgery”); 5 Star Builders, Inc., of W.P.B. v. Leone, 916 So.2d 1010, 1012 (Fla. 4th DCA 2006) (ordering new trial where third-party hearsay documents “served only to substantiate [the witness’s] testimony and bolster her own credibility”).

Here, Plaintiff impermissibly bolstered Dr. Proctor’s testimony with the 2014 Report by asking on redirect examination whether he agreed, with various .excerpts from, the Report. The expert’s reference to the Report “served only .to impermissibly bolster [his] credibility .., and diminish the, credibility of the defense expert’s opinions,” Donshik v. Sherman, 861 So.2d 53, 56 (Fla. 3d DCA 2003).

The facts of Donshik are analogous. There; the Third District remanded the case for a new trial because the plaintiff used a study published in a medical journal to bolster their experts’ opinions, even though one of those experts “was the chair of the executive committee and publication committee for this study.” 861 So.2d at 55 n.2. This is comparable to Dr. Proctor’s role , as an editor of the 2014 Report that was used to bolster his testimony. Since Dr. Proctor helped to edit the Report,. the conclusions invoked -therefrom during his redirect examination were not just those of other contributors that were consistent with his opinions at trial. As a result, Plaintiff was improperly permitted to bolster her expert’s testimony with the substance- of an inadmissible government report that directly, incorporated the expert’s own opinions and work product. As this court has previously noted, “[a]n expert bolstering his own- opinion by inadmissible evidence deprives the parties of a fair trial” and is error. Cordoba, 939 So.2d at 323.

E. THE ADMISSION AND USE OF THE REPORTS WERE NOT HARMLESS

An error in the admission of evidence requires a new trial unless “the beneficiary of the error [can]'prove that there is no reasonable possibility that the error complained of contributed to the verdict.” Special v. W. Boca Med. Ctr., 160 So.3d 1251, 1253 (Fla. 2014). As we have explained, the trial court erroneously admitted the Reports into evidence, allowing Plaintiff to unfairly buttress her factual contentions concerning the history of the tobacco industry and the safety of smoking using the imprimatur of the Surgeon General of the United States. Further, by bolstering the opinion testimony of Dr. Proctor with substantive content from the 2014 Report, Plaintiff improperly enhanced the expert’s credibility with the jury. This court has held that such improper bolstering ean .be so prejudicial as to rise to the level of fundamental error and require a new trial. Cordoba, 939 So.2d at 323.

The Reports did not constitute original research performed by the Office of the Surgeon General; rather, they summarized and compiled' a mix of information, opinion and advocacy from outside sources. As such, the Reports “represent ] a' classic example of hearsay,” being “nothing more than ... written statements of the de-clarantes]” who drafted the various contributions. Sikes v. Seaboard Coast Line R.R. Co., 429 So.2d 1216, 1220 (Fla. 1st DCA 1983) (holding that the state-issued Florida Handbook for Drivers was inadmissible hearsay). Admitting the Reports at trial effectively presented the jury with the opinions and conclusions of numerous extra-judicial experts whom Defendants could not cross-examine. See Darragh, 95 So.3d at 901.

“Because the battle of experts has become as much a part of a trial as the conflict that the litigation addresses,” Special, 160 So.3d at 1260, the cumulative harmful effect of these errors prejudiced Defendants by depriving them of a fair trial. See R.J. Reynolds v. Calloway, 201 So.3d 753, 762 (Fla. 4th DCA 2016) (“[I]n evaluating whether the errors were harmless, we may consider the cumulative effect of preserved and unpreserved error.” (internal quotes and citation omitted)). As the Donshik court held regarding an improperly admitted report, “[w]here, as here, the competing expert opinions, on both sides, were the focal point, of the trial, we cannot deem the error in the introduction of the [Reports] ... to be harmless.” 861 So.2d at 56.

Considering the extensive use of these Reports at trial, Plaintiff cannot meet her burden to show that their admission into evidence and use of the Reports by Plaintiffs counsel was harmless error. See Special, 160 So.3d at 1256. For the foregoing reasons, we reverse and remand for a new trial.

Reversed and Remanded for New Trial.

CIKLIN, J., and METZGER, ELIZABETH A., Associate Judge, concur.

      . Engle v. Liggett Grp., Inc., 945 So.2d 1246 (Fla. 2006).

      . Defendants argue the preclusive application of the Engle findings to Plaintiff's case violated due process- principles, and that federal law impliedly preempted Plaintiff’s strict liability and negligence claims that relied on the Engle findings. As Defendants concede, precedent clearly rejects these arguments. See R.J. Reynolds Tobacco Co. v. Marotta, 214 So.3d 590, 596-605 (Fla. 2017); Philip Morris USA Inc. v. Douglas, 110 So.3d 419, 436 (Fla. 2013); Philip Morris USA Inc. v. McKeever, 207 So.3d 907, 907 (Fla. 4th DCA 2017). On cross-appeal, Plaintiff asserts the trial court should not have reduced the initially awarded amount of compensatory damages based on the jury’s allocation of comparative fault,’ as the jury found Defendants liable for intentional torts. Plaintiff acknowledges that this court’s holding in R.J. Reynolds Tobacco Co. v. Schoeff, 178 So.3d 487, 496 (Fla. 4th DCA 2015), rev. granted, No. SC15-2233, 2016 WL 3127698 (Fla. May 26, 2016), required the damages reduction since the substance of the action was "a products liability suit based on conduct grounded in negligence.” See also R.J. Reynolds Tobacco Co. v. Grossman, 211 So.3d 221, 227 (Fla. 4th DCA 2017). These issues are moot because we are remanding this matter for a new trial.

      . The Reports are part scientific, part policy statement, and part public health advocacy. For example, in addition to reporting the results of scientific study in the field,- the 2014 Report included a chapter titled "A Vision for Ending the Tobacco Epidemic,” which stated that "[t]his nation must create a society free of tobacco-relatéd death and disease.”

      . Federal Rule of Evidence 801(d)(2)(B) on adoptive admissions is identical to the Florida Evidence Code under section 90.803(18)(b).

      . This analysis, however,- does not restrict the ability to use such posts or links to prove notice, possession, or knowledge. See, e.g., United States v. Cameron, 762 F.Supp.2d 152, 162 (D. Me. 2011) (explaining that possession of child pornography on a party's computer could be an, admission of committing the crime of possession), aff’d in part, rev'd in part on other grounds, 699 F.3d 621 (1st Cir. 2012).

      . While only excerpts from the Reports were admitted at trial, we note that some of the Reports linked on Defendants' websites contained nearly a thousand pages of text. The 2014 Report, for example, was 943 pages with 87 authors listed, including numerous scientists who were neither public officials nor employed by the U.S, Government or any of its agencies.

      . Terms of Use, Altria (September 2015), http://www.altria.com/Pages/Terms-ofUse, aspx. It was undisputed that the PM website contained a similar disclaimer at all times material to this cause of action, although its wording may have varied insignificantly over time,

      . Making Decisions Regarding Tobacco Use, R.J, Reynolds Tobacco Company, http://www. rirt.com/toba'cco-use-health/public-health-information/ (last visited August 3, 20-17), As previously stated, though the current wording of this disclaimer may not be the same as it was at the time of this cause of action, any difference in the wording is not significant to our conclusion.

      . Additionally, a website owner may not be in control or aware of what changes, edits or updates are made to its linked content. Because third-party content is controlled by third parties, what may have initially been a link to "approved” content might later become something quite different from what was intended to be conveyed.


text:
    Georges RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-1808
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]

      Kevin S; McGill of GMV Law Group, LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   Per Curiam.

Appellant, Georges Richardson, timely appeals his judgment and sentence after a jury found him guilty of a lesser included offense, robbery. On appeal, Richardson argues that the trial court erred in admitting a video tape into evidence. We disagree and affirm.

Background

Richardson was arrested and charged with the armed robbery of a cell phone store; The robbery occurred on July 15, 2013. Prior to trial, Richardson filed a motion in limine, arguing that the trial court should exclude a video tape from a nearby doughnut shop showing Richardson at the doughnut shop just prior to the robbery. Richardson argued that the State would not be able to authenticate the video. Just prior to jury selection, the trial court heard the motion and deferred ruling.

During trial, the general manager of the doughnut shop testified she recognized the store in the photographs (taken from' the video), because she had worked at the shop for eight years, and she recognized the four employees that were depicted in the photographs. ■ She stated that there are eight video cameras in the shop, which store video for thirty days, then loop and begin recording over the older video footage. She stated that she had seen the video, and that it was' a fair and accurate depiction of the shop on July 15, 2013, and that it had not been altered, edited, and nothing had been superimposed.

On cross-examination, the general manager testified that she was not the one that removed the video from the system, that it was someone from loss prevention. She stated that the shop’s loss prevention employee did not let anyone else have access to the video, and did not work with anyone else. However, the general manager admitted that she did not “see with her own eyes” that the loss prevention employee did not let anyone else have access to the video. She never' watched the video after receiving it from the loss prevention employee, but just gave it to the detective.

As for the video system, the general manager stated-that there is a company that takes care of the equipment, and it was the same equipment running on July 15, 2013 that was' originally installed when the doughnut shop opened. She did not know if the camera or equipment had ever been serviced, but stated that it always worked, because if it malfunctioned, the loss prevention employee would be notified, and then would have notified her. No one has access to the camera except for one manager, but the general manager did not know how the date and times on the video are verified by the recording device. She also stated that the recording could not be altered from the device itself.

Richardson objected to the admission of the video, and argued that the State could “not establish chain of custody with [the] witness.” He also argued that the general manager could not “testify as to maintenance upkeep and installation.” The State responded that, under the prongs for determining whether a video is admissible under the silent witness theory, the State met its burden. Thé trial court overruled Richardson’s objection.

The jury found Richardson guilty of the lesser included crime of robbery, after which the trial court adjudicated him guilty and sentenced him to fifteen years in prison. Richardson gave notice of appeal.

Appellate Analysis

“The admissibility of photographic evidence falls within the trial court’s discretion; the court’s decision will not be overturned absent a showing of abuse.” Wagner v. State, 707 So.2d 827, 830 (Fla. 1st DCA 1998) (citations omitted).

Richardson’s sole argument on appeal is that the trial court erred in admitting the video over his objection. Our supreme court has explained that,

to be competent evidence, the films must be properly authenicated [sic] and shown to be a faithful representation of the subject, sound, movement, or other tangible or intangible thing which they purport to reproduce. When such a showing is made to the1 trial court, moving picture films should be admitted under the same rules as photographs.

Gulf Life Ins. Co. v. Stossel, 131 Fla. 127, 179 So. 163, 163 (1938). Since there must be proper authentication prior to the admission of a videotape, videotapes are not self-authenticating. See Cirillo v. Davis, 732 So.2d 387, 388 (Fla. 4th DCA 1999).

There are two types of authentication methods for admitting videotapes: (1) through “pictorial testimony,” and (2) through the “silent witness” theory. Wagner, 707 So.2d at. 830. The method at . issue here-is the silent witness theory.

As we have explained:
Relying on cases from other jurisdictions, as well as treatises on evidence, the first district concluded that the videotape was admissible. The court applied the “silent witness” theory, explained in John Henry Wigmore, 3 Evidence in Trials at Common Law § 790, at 219-20 (Chadbourn rev.1970) as follows:
With later advancements in the art of photography, however, and with increasing awareness of the manifold evidentiary uses of the products of the art, it has become clear that an additional theory of admissibility of photographs is entitled to recognition. Thus, even though no human is ’capable of swearing that he personally perceived what a photograph purports to portray (so that it is not possible to satisfy the requirements of the “pictorial testimony” rationale) there may nevertheless be good warrant for receiving the photograph in evidence. Given an adequate foundation assuring the accuracy of the process producing, it, the photograph should then be received as a so-called silent witness or as a witness which “speaks for itself.”

Cirillo, 732 So.2d at 388 (quoting Wagner, 707 So.2d at 830). Most importantly, the Wagner court-held that the silent witness theory can be used

when the trial judge determines it to be reliable, 'after having considered the following: •
(1) evidence- establishing the time and date-of the photographic evidence;
(2) any evidence of editing or tampering;
(3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product;'
(4) the procedure employed as it relates to the preparation, testing, operation, and security óf the equipment used to produce the photographic product, including the security of the product itself; and
(5) testimony identifying the relevant participants depicted in the photographic evidence.

Id.. Therefore, these are the factors we apply in this case.

Here, there is a date and time stamp that can be seen on the video. There was also no evidence of tampering, and to the contrary, the general manager testified that the video had not been altered, edited, or superimposed upon. She also stated that there was only one other'person with access to the video, and although she did not “see with her own eyes” that the loss prevention employee did not give anyone else access to the video, to the best of her knowledge, it was only that employee that accessed the video. Importantly, the general manager also testified that the recording could not be altered by the recording device. ■

There was not much testimony regarding the condition and capability of the equipment-in relation to accuracy and reliability, but the general manager did testify that she was never notified of any malfunction of the equipment. Finally, there was testimony that the video equipment was kept in a locked office, which- only one manager, besides the "witness, had access to enter. This establishes a level of security protecting the recording, as opposed to equipment in the open for anyone to have access.

Richardson cites to Cirillo to support his argument that the trial court erred in admitting the video. There, an employee of a private investigator taped the plaintiff, who was injured in an automobile accident. Id. at 387. The- trial court admitted the video of the plaintiff, over -the. plaintiffs objection, through the private investigator, not the employee that took the video. Id. at 388. In determining that the trial court erred by admitting the' tape, this Court explained:

People who make their living by doing surveillance have .an incentive to find something favorable to the party emr ploying them. Video cameras can be. selectively turned off and on. Tapes can be edited or altered, and advancing technology will make alterations harder to detect. We agree with the plaintiffs that the person operating the video camera ought to be exposed to cross-examination under oath. The tape was not, therefore, admissible.

Id. at 389.

However, the factors in Cirillo, which led this Court to consider it unreliable, are not present in the instant case. There, the tape was made for the purpose of trial, by someone getting paid by one of the parties. Here, it was a business a few doors down from the store that was actually robbed, so it had no incentive to fabricate.-Additionally, the evidence was comprised of surveillance that was continuous, instead of being selectively turned on and off, and the evidence was not collected in anticipation of a specific trial. Finally, although there could generally still be issues of tampering, here, there was testimony by the general manager that the video was not and could not have been tampered with prior to being delivered to law enforcement, and there was no suggestion or inference of tampering by law enforcement. Therefore,. the evidence was sufficient to negate possible alterations and to meet the authentication factors for silent witness authentication.

Thus, in reviewing these factors and the trial court’s ruling, we affirm the trial court ruling admitting the video into evidence.

Affirmed.

Taylor, May and Conner, JJ., concur.


author: Gerber, C.J. Warner, J.,

text:
    John CASSERLY, Appellant, v. The CITY OF DELRAY BEACH, Appellee.
    No. 4D16-1771
    District Court of Appeal of Florida, Fourth District.
    [September 27, 2017]

      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 plaintiffs 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 them 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 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 pérson 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 ’
• “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 plaintiffs 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) where a person is damaged or injured while inline skating upon a roadway but not “while crossing a street oñ a crosswalk.”

The plaintiffs 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- plaintiffs 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 plaintiffs 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 hów 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 mth 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. 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 “[fjailure to provide its users of the public thoroughfare with the exercise of reasonable and ordinary care to keép 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 rol-lerbladers 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 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 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.
(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 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.


text:
    Reuel J. LABSON, Appellant, v. Jenny RAMIREZ, Mercedes Ramirez, and Infinity Auto Insurance Company, Appellees.
    No. 4D16-3710
    District Court of Appeal of Florida, Fourth District.
    [October 11, 2017]
    Glenn J. Garrett of Glenn J. Garrett, P.A., Sunrise, for appellant,
    Wayne T. Hrivnak of Law Office of Davis, Giardino & Hrivnak, P.A., West Palm Beach, for appellees.
   Per Curiam.

Affirmed. See State Farm Mutual Automobile Ins. Co. v. Kilbreath, 419 So.2d 632 (Fla. 1982).

Gerber, C.J., May and Levine, JJ., concur.,


text:
    STATE of Florida, Petitioner, v. Peter AVSENEW, Respondent.
    No. 4D17-568
    District Court of Appeal of Florida, Fourth District.
    [October 11, 2017]

      Pamela Jo Bondi, Attorney General, Tallahassee, and Lisa-Marie Lerner, Assistant Attorney General, West Palm Beach, for petitioner.
    Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Chief Assistant Public Defender, Fort Lauderdale, for respondent.
   Per Curiam.

The petition for writ of prohibition is granted, and the order precluding the State from seeking the death penalty is quashed. State v. Lopez, 219 So.3d 865 (Fla. 4th DCA 2017); State v. Chapman, No. 4D17-428, 227 So.3d 626, 2017 WL 3727098 (Fla. 4th DCA Aug. 30, 2017).

Levine, Conner and Klingerismith, JJ., concur.