
    Jo Ann LIPNICK, a minor, by her next friend and father, Earl Lipnick and Earl Lipnick, individually, Appellants, v. SABAL PALM APARTMENTS, INC., and Robert L. Flagler, Appellees.
    No. 62-520.
    District Court of Appeal of Florida. Third District.
    April 16, 1963.
    
      Leef & Ankus, Miami Beach, for appellants.
    Dixon Dejarnette, Bradford, Williams, McKay & Kimbrell and Robert L. Dube, Miami, for appellees.
    Before CARROLL, HORTON and HENDRY, JJ.
   HENDRY, Judge.

The appellants are a father and his minor daughter. They appeal from a summary final judgment entered for the defendant in an action brought to recover damages for injuries sustained by the 17 month old daughter who was struck by an automobile while she was near a play area designated for use by tenants with children. The question for our determination is whether, under the facts as revealed by the record, the defendant was entitled to a summary final judgment as a matter of law.

The complaint alleged that the defendant owned and controlled Sabal Palm Apartments, consisting of several buildings and a total of 504 units; that the plaintiffs were tenants occupying one of the first floor apartments situated near the play area; that while Jo Ann, the 17 month old daughter, was approximately 40 feet from the play area, with her father and mother, she was struck by an automobile being driven by another tenant who was backing onto the area. The complaint further alleged that the defendant, after having designated said play area and with full knowledge that children of tender years would use and were using the same for that purpose, failed to take reasonable steps for the care, protection and safety of said children in that the defendant failed to provide (1) supervisory personnel for the play area; (2) fences, posts or other means of preventing vehicular traffic from proceeding through the play area, or (3) markers or warning signs notifying the public that children were at play in said area.

The defendant’s answer denied negligence and charged the father with contributory negligence in failing to supervise, care for and exercise parental duties and responsibilities towards his minor child.

A final summary judgment was granted defendant upon the basis of the pleadings and the deposition of the plaintiff-father.

The deposition of the father indicates that the alleged negligence of the defendant was its failure to take any measures to control motor vehicle traffic in and about the area which defendant had designated for use by the children.

After carefully examining the pleadings, deposition and exhibits, we have concluded that the trial judge properly , found that there was no genuine issue as to any material fact, and that the defendant was entitled as a matter of law to a summary final judgment. The undisputed facts presented furnish no basis upon which the defendant can be held responsible for the injuries sustained by the minor plaintiff.

Affirmed.

CARROLL, Judge, dissents.  