City of Miami v. Ameller
| Decision Date | 03 July 1985 |
| Docket Number | No. 65267,65267 |
| Citation | 10 Fla. L. Weekly 352,472 So.2d 728 |
| Parties | 10 Fla. L. Weekly 352 CITY OF MIAMI, Petitioner, v. Mauricio AMELLER, et al., Respondents. |
| Court | Florida Supreme Court |
Lucia A. Dougherty, City Atty., Gisela Cardonne, Deputy City Atty. and Julia J Roberts, Asst. City Atty., Miami, for petitioner.
Jose M. Insua and Juan M. Carrera of the Law Offices of Gaston R. Alvarez, Miami, and Jesus F. Bujan of Fleitas & Bujan, Miami, for respondents.
We have for review Ameller v. City of Miami, 447 So.2d 1014 (Fla. 3d DCA 1984), which directly and expressly conflicts with Alegre v. Shurkey, 396 So.2d 247 (Fla. 1st DCA 1981). We have jurisdiction. Art. V, § 3(b)(3), Fla.Const. The issue here is whether a complaint alleging that the city negligently placed monkey bars in its public park over a hard-packed ground surface states a cause of action.
The third amended complaint alleged that the City of Miami (city) improperly constructed and maintained the monkey bars playground equipment in its public park by failing to use one of the recommended standard cushioning materials under the monkey bars. The third amended complaint charged the city with negligence in violating its own standards, as well as playground industry standards, for the proper ground surface needed beneath such equipment. The trial court dismissed the case, finding that the third amended complaint failed to state a cause of action. The district court reversed, agreeing with Judge Ervin's dissent in Alegre. We agree with the district court that the Amellers' complaint should not have been dismissed with prejudice. *
In Alegre the defendants were private landowners who failed to provide an impact-absorbing ground surface under the monkey bars where a neighbor child fell and suffered injuries. The trial court dismissed the complaint for failure to state a cause of action. The Alegre majority affirmed because the complaint failed to allege "that the monkey bar contained latent defects, that it was negligently constructed or operated or that there was any present danger that one of tender years could not readily comprehend." 396 So.2d at 248, quoting from Hillman v. Greater Miami Hebrew Academy, 72 So.2d 668, 669 (Fla.1954). Judge Ervin dissented from the portion of Alegre applying this "no-duty doctrine" to deprive injured invitees of a jury trial where the risk of injury was patent. 396 So.2d at 251-52.
We agree with the Alegre majority that Hillman required the dismissal of a negligence action against a private landowner whose yard did not have a cushioning ground surface beneath the monkey bars. We see no reason, however, why Hillman and Alegre should protect a municipality or other public agency from liability for the negligent operation of playground equipment. Public safety and...
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