Opinion
No. 83-1966.
April 3, 1984.
Appeal from the Circuit Court, Dade County, James C. Henderson, J.
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.
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. 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.
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).
Accordingly, the order dismissing the appellant's complaint is reversed and the cause remanded for further proceedings.
Reversed and remanded.
HENDRY, J., dissents.