CARDINE, Chief Justice.
Appellants were forced to move out of their homes in the Colt Track Acres Subdivision in Platte County because their water and septic systems were inadequate. They sued the Board of County Commissioners of Platte County (Board) for negligent ap[263]*263proval of the subdivision permit and negligent supervision of the subdividers. The district court entered summary judgment in favor of the Board, and the homeowners appeal, presenting the following issues: (1) whether the Board waived the defense of immunity; (2) whether the Board is entitled to immunity; (3) whether the summary judgment must be reversed because the record contains no explanation for the order entering summary judgment; and (4) whether the court erred by denying appellant’s motion for summary judgment.
We reverse and remand.
FACTS
In January 1977, Donald and Vernell Britton applied for a subdivision permit for a parcel of land located west of Wheatland, Wyoming. During the permitting process, various individuals and public entities raised concerns about the high water table and poor drainage at the subdivision site. In response to these concerns, the county sanitarian recommended to the county planner that “evapotranspirational” septic systems be required on the subdivision lots and that the water wells be cased, sealed and grouted above ground. The sanitarian provided the developers with specifications for the evapotranspiration system, and the County granted the subdivision permit. The septic systems were apparently developed according to the specifications provided by the county sanitarian.
Appellants experienced no problems with the water and septic systems until 1984, when it became evident that the systems were not working adequately. In September 1984, the Department of Environmental Quality issued a notice of violation to the Pickles, owners of one of the homes, which required them to stop using their sewage system because raw sewage was leaking from the evapotranspiration beds. The other appellants experienced similar problems, including structural problems with their homes caused by the high water table. Appellants petitioned the Board, requesting that they revoke the subdivision permits and take action to remedy the problems; but the Board declined to act. Appellants then filed a claim with the Board under W.S. 1-39-113. The Board still failed to remedy the problems, and appellants filed this action in the district court.
The Board moved for summary judgment on the grounds of governmental immunity; appellants moved for summary judgment on the issue of liability. The court entered summary judgment in favor of the Board. The court’s rationale does not appear in the record.
WAIVER OF IMMUNITY THROUGH FAILURE TO TIMELY ASSERT IT AS AN AFFIRMATIVE DEFENSE
The Board did not plead any affirmative defenses in its answer. Then, over a year after the complaint was filed, the Board raised the defense of governmental immunity in a motion to dismiss under Rule 12(b)(6), W.R.C.P., which they later converted to a motion for summary judgment. Appellants contend that the Board waived the defense of governmental immunity by failing to plead it in its answer as required by Rule 8(c), W.R.C.P.1
As a preliminary matter, we must determine whether governmental immunity is an “avoidance or affirmative defense” which may be waived under Rule 8(c) or whether the existence of governmental immunity creates a jurisdictional defect which cannot be waived and may be raised at any time. In this case, the question is complicated by the fact that two different types of governmental immunity are at issue. First, there is the question of whether the County enjoys common law “quasi-legislative” immunity from suit for its acts or omissions in [264]*264approving the subdivision. Second, there is the question of whether the County has waived its tort immunity under the Wyoming Governmental Claims Act by purchasing liability insurance which covers appellants’ claim.
Legislative immunity rests upon the premise that
“no legislator can be expected to discharge his duties with the resolution and dedication they require unless he is freed from the constant threat of legal action and potential monetary liability for each exercise of his legislative judgment.” Bruce v. Riddle, 464 F.Supp. 745, 748-49 (D.S.C.1979).
The doctrine prevents the judiciary from invading the province of the legislature. Because it raises separation of powers considerations and limits the power of courts, we conclude that it is a jurisdictional bar which cannot be waived. The Board did not waive the issue of legislative or quasi-legislative immunity.
Immunity under the Wyoming Governmental Claims Act, in contrast, is immunity from liability, not immunity from suit. W.S. 1-39-102. Its purpose is to protect public revenues, not to protect government officials from the burden of defending lawsuits. The district courts have subject matter jurisdiction to hear claims filed under the act. W.S. 1-39-117. In Texas Gulf Sulphur Company v. Robles, Wyo., 511 P.2d 963, 965 (1973), we defined an affirmative defense as “a direct or implicit admission of plaintiff’s claim and assertion of other facts which would defeat a right to recovery.” Governmental immunity from tort liability falls within this definition. W.S. 1-39-104. We conclude that for pleading purposes under Rule 8(c), W.R. C.P., immunity under the Wyoming Governmental Claims Act is an “avoidance or affirmative defense.” In the present case, it should have been pleaded by the Board in its answer.
The Board’s failure to plead the defense, however, is not fatal. The question of whether an omitted affirmative defense may be raised for the first time by a motion for summary judgment is addressed in 2A Moore’s Federal Practice 118.28 (1987). The author states:
“[Tjhere is a split in authority as to whether a defendant may, subsequent to filing an answer, move for summary judgment on the basis of an affirmative defense omitted from the answer. While some cases hold that an affirmative defense not raised in the answer is waived and, therefore, not available as a basis for a summary judgment motion, other holdings provide that, absent prejudice to plaintiff, an affirmative defense may be raised by a motion for summary judgment regardless of whether it was pleaded in the answer or not. The latter position is more in keeping with the general purpose of the Federal Rules to avoid decisions based on pleading technicalities rather than the merits of a case.” (Footnotes omitted.)
We agree that the latter position is preferable to a mechanistic application of the waiver rule. The controlling consideration is whether the adverse party is prejudiced by the moving party’s delay in raising the defense. Appellants have alleged no prejudice in this respect, and the record discloses none. We conclude that the trial court did not err in allowing the Board to raise the omitted defense of statutory immunity by a motion for summary judgment.
APPELLANTS’ CLAIM
The Board argues that appellants’ claim does not sound in tort. We reject this assertion. The thrust of appellants’ claim, as we understand it, is that the Board acted negligently by failing to exercise reasonable care in processing and reviewing the subdivision application.
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CARDINE, Chief Justice.
Appellants were forced to move out of their homes in the Colt Track Acres Subdivision in Platte County because their water and septic systems were inadequate. They sued the Board of County Commissioners of Platte County (Board) for negligent ap[263]*263proval of the subdivision permit and negligent supervision of the subdividers. The district court entered summary judgment in favor of the Board, and the homeowners appeal, presenting the following issues: (1) whether the Board waived the defense of immunity; (2) whether the Board is entitled to immunity; (3) whether the summary judgment must be reversed because the record contains no explanation for the order entering summary judgment; and (4) whether the court erred by denying appellant’s motion for summary judgment.
We reverse and remand.
FACTS
In January 1977, Donald and Vernell Britton applied for a subdivision permit for a parcel of land located west of Wheatland, Wyoming. During the permitting process, various individuals and public entities raised concerns about the high water table and poor drainage at the subdivision site. In response to these concerns, the county sanitarian recommended to the county planner that “evapotranspirational” septic systems be required on the subdivision lots and that the water wells be cased, sealed and grouted above ground. The sanitarian provided the developers with specifications for the evapotranspiration system, and the County granted the subdivision permit. The septic systems were apparently developed according to the specifications provided by the county sanitarian.
Appellants experienced no problems with the water and septic systems until 1984, when it became evident that the systems were not working adequately. In September 1984, the Department of Environmental Quality issued a notice of violation to the Pickles, owners of one of the homes, which required them to stop using their sewage system because raw sewage was leaking from the evapotranspiration beds. The other appellants experienced similar problems, including structural problems with their homes caused by the high water table. Appellants petitioned the Board, requesting that they revoke the subdivision permits and take action to remedy the problems; but the Board declined to act. Appellants then filed a claim with the Board under W.S. 1-39-113. The Board still failed to remedy the problems, and appellants filed this action in the district court.
The Board moved for summary judgment on the grounds of governmental immunity; appellants moved for summary judgment on the issue of liability. The court entered summary judgment in favor of the Board. The court’s rationale does not appear in the record.
WAIVER OF IMMUNITY THROUGH FAILURE TO TIMELY ASSERT IT AS AN AFFIRMATIVE DEFENSE
The Board did not plead any affirmative defenses in its answer. Then, over a year after the complaint was filed, the Board raised the defense of governmental immunity in a motion to dismiss under Rule 12(b)(6), W.R.C.P., which they later converted to a motion for summary judgment. Appellants contend that the Board waived the defense of governmental immunity by failing to plead it in its answer as required by Rule 8(c), W.R.C.P.1
As a preliminary matter, we must determine whether governmental immunity is an “avoidance or affirmative defense” which may be waived under Rule 8(c) or whether the existence of governmental immunity creates a jurisdictional defect which cannot be waived and may be raised at any time. In this case, the question is complicated by the fact that two different types of governmental immunity are at issue. First, there is the question of whether the County enjoys common law “quasi-legislative” immunity from suit for its acts or omissions in [264]*264approving the subdivision. Second, there is the question of whether the County has waived its tort immunity under the Wyoming Governmental Claims Act by purchasing liability insurance which covers appellants’ claim.
Legislative immunity rests upon the premise that
“no legislator can be expected to discharge his duties with the resolution and dedication they require unless he is freed from the constant threat of legal action and potential monetary liability for each exercise of his legislative judgment.” Bruce v. Riddle, 464 F.Supp. 745, 748-49 (D.S.C.1979).
The doctrine prevents the judiciary from invading the province of the legislature. Because it raises separation of powers considerations and limits the power of courts, we conclude that it is a jurisdictional bar which cannot be waived. The Board did not waive the issue of legislative or quasi-legislative immunity.
Immunity under the Wyoming Governmental Claims Act, in contrast, is immunity from liability, not immunity from suit. W.S. 1-39-102. Its purpose is to protect public revenues, not to protect government officials from the burden of defending lawsuits. The district courts have subject matter jurisdiction to hear claims filed under the act. W.S. 1-39-117. In Texas Gulf Sulphur Company v. Robles, Wyo., 511 P.2d 963, 965 (1973), we defined an affirmative defense as “a direct or implicit admission of plaintiff’s claim and assertion of other facts which would defeat a right to recovery.” Governmental immunity from tort liability falls within this definition. W.S. 1-39-104. We conclude that for pleading purposes under Rule 8(c), W.R. C.P., immunity under the Wyoming Governmental Claims Act is an “avoidance or affirmative defense.” In the present case, it should have been pleaded by the Board in its answer.
The Board’s failure to plead the defense, however, is not fatal. The question of whether an omitted affirmative defense may be raised for the first time by a motion for summary judgment is addressed in 2A Moore’s Federal Practice 118.28 (1987). The author states:
“[Tjhere is a split in authority as to whether a defendant may, subsequent to filing an answer, move for summary judgment on the basis of an affirmative defense omitted from the answer. While some cases hold that an affirmative defense not raised in the answer is waived and, therefore, not available as a basis for a summary judgment motion, other holdings provide that, absent prejudice to plaintiff, an affirmative defense may be raised by a motion for summary judgment regardless of whether it was pleaded in the answer or not. The latter position is more in keeping with the general purpose of the Federal Rules to avoid decisions based on pleading technicalities rather than the merits of a case.” (Footnotes omitted.)
We agree that the latter position is preferable to a mechanistic application of the waiver rule. The controlling consideration is whether the adverse party is prejudiced by the moving party’s delay in raising the defense. Appellants have alleged no prejudice in this respect, and the record discloses none. We conclude that the trial court did not err in allowing the Board to raise the omitted defense of statutory immunity by a motion for summary judgment.
APPELLANTS’ CLAIM
The Board argues that appellants’ claim does not sound in tort. We reject this assertion. The thrust of appellants’ claim, as we understand it, is that the Board acted negligently by failing to exercise reasonable care in processing and reviewing the subdivision application. As evidence of the Board’s negligence, appellants claim that the Board failed to comply with W.S. 18-5-306(a)(iv), which states that the Board shall require written certification of a licensed Wyoming engineer that the proposed sewage disposal system is adequate and safe.
The elements of the tort of negligence are a duty and a violation of that duty proximately causing injury. Beard v. Brown, Wyo., 616 P.2d 726 (1980). The existence of a duty is a question to be [265]*265decided as a matter of law. Caterpillar Tractor Company v. Donahue, Wyo., 674 P.2d 1276 (1983). The court must decide whether, upon the facts in evidence,
“ ‘such a relation exists between the parties that the community will impose a legal obligation upon one for the benefit of the other—or, more simply, whether the interest of the plaintiff which has suffered invasion was entitled to legal protection at the hands of the defendant. This is entirely a question of law, to be determined by reference to the body of statutes, rules, principles and precedents which make up the law; and it must be determined only by the court.’ ” Id. at 1280, quoting Prosser, Law of Torts § 37, p. 206 (4th ed. 1971).
Although there is no scientific formula for determining whether a duty to exercise care exists in a particular case, the following factors are relevant:
“(1) the foreseeability of harm to the plaintiff, (2) the closeness of the connection between the defendant’s conduct and the injury suffered, (3) the degree of certainty that the plaintiff suffered injury, (4) the moral blame attached to the defendant’s conduct, (5) the policy of preventing future harm, (6) the extent of the burden upon the defendant, (7) the consequences to the community and the court system, and (8) the availability, cost and prevalence of insurance for the risk involved. Tarasoff v. Regents of University of California, 17 Cal.3d 425, 131 Cal.Rptr. 14, 551 P.2d 334, 342, 83 A.L.R.3d 1166 (1976).” Gates v. Richardson, Wyo., 719 P.2d 193, 196 (1986).
As we explained in Gates, the first two factors are rather vague and not often useful; in any event, they present no obstacle to the imposition of a duty in this case. It was clearly foreseeable that appellants could suffer injury if the Board allowed the subdivider to install an inadequate septic system, and the Board’s acts or omissions in the subdivision review process were sufficiently close to the injury suffered by appellants. The Board has not suggested that plaintiffs suffered no injury. With respect to moral blame, the Board’s purported failure to adequately process the subdivision application evokes something less than moral outrage. On the other hand, it is likely that future harm could be prevented by the imposition of a duty of care in this instance. The burden on the defendant is slight—a duty to act reasonably is surely not onerous and is commonly applied to a wide range of activities. The consequences to the community and the court system are difficult to predict; suffice it to say that we do not envision a great number of plaintiffs racing to the courts to file similar claims following the publication of this opinion. The availability, cost and prevalence of insurance are valid concerns, but in this case they are not compelling. As we explained below, the possibility of recovery in this case depends upon the existence of insurance.
In addition to the factors addressed above, courts look to the following additional factors when the defendant is a governmental entity: (1) the scope of the public entity’s powers; (2) the role imposed on the public agency by law; (3) budget limitations; and (4) whether the enactment imposing the duty is designed to protect against the risk of a particular injury. 4 C. Sands and M. Libonati, Local Government Law § 27.13 at p. 27-93 (1982). In the present case, the subdivision review process was clearly within the scope of the Board’s statutory power and authority. W.S. 18-5-301 provides: “The regulation and control of the subdivision of land in the unincorporated areas in each county is vested in the board of county commissioners of the county in which the land is located.” The role imposed upon the Board is one which requires it to obtain specific information from subdivision applicants and, on the basis of this information, either approve or disapprove subdivision applications. W.S. 18-5-306 and 18-5-308. The Board has identified no budget limitations which would diminish its ability to properly process and review subdivision applications. Finally, it seems clear that the purpose behind the subdivision statutes is to protect against problems like those which occurred in this case.
[266]*266We conclude that the Board owed appellants a duty to exercise reasonable care in processing and reviewing the subdivision application. We should emphasize that the Board's policy determinations are not at issue here; we merely hold that the Board may be liable for failing to exercise reasonable care in performing basic tasks, such as the gathering of information. Some of those tasks are contained in statutes, as in this case. If the relevant statute is violated, that fact may be evidence of a failure to exercise reasonable care. If reasonable care was not exercised, thereby causing injury, the tort of negligence is involved. Appellants’ claim, therefore, sounds in tort.
QUASI-LEGISLATIVE IMMUNITY
The Board contends that it is immune from suit under the common law rule which provides that a governmental body is not liable for acts or omissions in the exercise of legislative or quasi-legislative functions. When this court abrogated governmental immunity in Oroz v. Board of County Commissioners of Carbon County, Wyo., 575 P.2d 1155 (1978), we recognized the continued vitality of legislative immunity:
“This decision * * * is not to be interpreted as imposing liability upon a governmental body for acts or omissions in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions * * Id. at 1158.
The subsequent enactment of the Wyoming Governmental Claims Act did not affect this well-established common law doctrine. If the Board was acting in a legislative or quasi-legislative capacity when it approved the subdivision permit, it is immune from suit.
The rule of immunity for legislative or quasi-legislative action rests upon the principle that courts should not inhibit the legislative process by providing a forum for second guessing legislative policy decisions. The doctrine is available to local officials when they act in a legislative capacity. 2 S. Speiser, C. Krause, and A. Gans, American Law of Torts (1985). The Board asserts that its approval of the Colt Track Acres Subdivision was a quasi-legislative zoning decision. We disagree. While the enactment of a zoning ordinance or regulation is a legislative act, the conduct challenged in this case did not involve the adoption of legislation in any sense. Moreover, the alleged breach of duty did not occur in the determination of fundamental governmental policy. See Restatement, Second, Torts § 895(c) (1979). The duty to require an engineer’s certification was purely an imperative administrative duty imposed by the legislature. The doctrine of quasi-legislative immunity does not apply.
GOVERNMENTAL CLAIMS ACT IMMUNITY
The Wyoming Governmental Claims Act provides that a governmental entity and its public employees while acting within the scope of their duties are immune from liability for any tort except as provided in the act. W.S. 1-39-104. The act lists specific governmental activities to which immunity does not apply. W.S. 1-39-105 through 1-39-112. Although the governmental activities challenged in this case do not fall within any of these exceptions, the act further provides:
“If a governmental entity has insurance coverage either exceeding the limits of liability as stated in this section or covering liability which is not authorized by this act, the governmental entity’s liability is extended to the coverage.” W.S. 1—39—118(b)(i).
Relying on this provision, appellants contend that the Board waived its immunity by purchasing insurance which covers its liability in the present case.
Four insurance policies appear in the record. The district court apparently concluded that none of the policies provided coverage for appellants’ claims. While this conclusion might be correct, the record, in its present state, is insufficient to support summary judgment on this basis. In our view, the insurance coverage question was not adequately addressed in the district court. ' In addition, the Board neither briefed nor argued the issue on appeal. [267]*267Instead, it urged us to affirm the district court solely on the ground of quasi-legislative immunity. We remand the case to the district court for a reasoned resolution of the insurance coverage issue and any other proceedings which may be necessary.
REVERSED AND REMANDED.
THOMAS, J., filed a specially concurring opinion.
O’BRIEN, District Judge, filed an opinion concurring in part and dissenting in part.