January 11, 1972.
Appeal from the Circuit Court, Dade County, David Popper, J.
Simons Schlesinger and Henry L. Kaye, Hollywood, for appellants.
Wicker, Smith, Pyszka, Blomqvist Davant, Miami, for appellee.
Before SWANN, C.J., HENDRY, J., and LILES, WOODIE A., Associate Judge.
This is an appeal by plaintiff from a final judgment entered pursuant to a directed verdict for defendant at the close of plaintiff's case.
Plaintiff's complaint alleged negligence and breach of contract. His action was brought against the defendant city for injuries sustained by his seven year old daughter while she was riding on a seesaw at the city's day camp for girls where plaintiff's daughter was enrolled as a paying guest.
On June 30, 1969, plaintiff, then aged seven, was enrolled in a camping program operated by the City of North Miami Beach. She asked the counselor, a city employee to play with her on a seesaw. The minor plaintiff was seated at one end, with another heavier child sitting behind her; both children were facing the counselor, who was on the other end of the seesaw. According to the plaintiff's testimony, the girl behind the minor plaintiff was jumping up and down, wiggling her hands and not holding on to the seesaw. After about two minutes of this activity, the other child fell down and the end of the seesaw flew up, causing the minor plaintiff to strike her chin on the bar or handle of the seesaw. She sustained permanent injuries. The incident occurred on premises owned by the city, and operated by the city as a day camp. The girl who sat behind the minor plaintiff was not enrolled in the city's day camp program. Only two witnesses testified: the minor plaintiff and her cousin who testified that plaintiff and another girl were on one end of the seesaw and the counselor was on the other. The case was tried as a negligence action.
We affirm the decision of the trial court below upon the following authorities: Hillman v. Greater Miami Hebrew Academy, Fla. 1954, 72 So.2d 668; Elmore v. Sones, Fla.App. 1962, 140 So.2d 59; see also: Warner v. Florida Jai Alai, Inc., Fla.App. 1969, 221 So.2d 777.