447 So. 2d 1014 | Fla. Dist. Ct. App. | 1984
Mauricio AMELLER, a Minor, by and through Jorge Ameller and Maria De Los Angeles Ameller, His Parents, and Jorge Ameller and Maria De Los Angeles Ameller, Individually, Appellants,
v.
CITY OF MIAMI, a Municipal Corporation of the State of Florida, Appellee.
District Court of Appeal of Florida, Third District.
Gaston R. Alvarez and Roberto F. Fleitas, Jr., Miami, for appellants.
Lanza, Sevier, Womack & O'Connor and Hector J. Lombana, Coral Gables, for appellee.
Before HENDRY, NESBITT and DANIEL S. PEARSON, JJ.
PER CURIAM.
This case presents the same question as that addressed in Alegre v. Shurkey, 396 So. 2d 247 (Fla. 1st DCA 1981), namely, whether a complaint alleging that the defendant placed monkey bars in its public park over a hard-packed ground surface, states a cause of action for negligence.[1] In Alegre, a majority of the court held that no cause of action was stated; here, a majority of this court, agreeing with the dissenting opinion of Judge Ervin in Alegre, 396 So.2d at 248, holds otherwise.
Accordingly, the order dismissing the appellant's complaint is reversed and the cause remanded for further proceedings.
Reversed and remanded.
HENDRY, J., dissents.
NOTES
[1] There is no contention that there were rocks under the apparatus, and we are thus unable to distinguish Alegre as we did in Atlantic Christian Schools, Inc. v. Salinas, 422 So. 2d 362 (Fla.3d DCA 1982).