As a Plaintiff’s law firm we routinely receive calls from the parents of young a child who has fallen on a playground, received a serious head injury and is being treated for seizures. We start an investigation to see if the accident could have been prevented had someone, some company or some governmental agency had used due care. As lawyers we look to see if the negligence of the defendant was the cause of the accident. Many times the playground is owned by the city, municipality or the county government. This brings into play a statute known as the “governmental tort liability act,” which limits the amount of recovery that can be obtained against a governmental entity. This statute also limits the theories on which the Plaintiff may recover medical expenses.
As a part of our investigation, we have to go back in time and survey the circumstances including the playground itself, the activity of the child, and who owned or designed the playground. Photographs of the scene at the time of the accident are important to help determine the condition of the playground. We then look to see what the medical records show about the injury, the mechanism of the injury and how the conditions of the playground contributed to the injury.
The actions of the parents are also important. Were they partially responsible? Under the law in Tennessee, if there is negligence on part of an owner of the playground and also negligence on the part of the parent, that will reduce the amount of recovery to the child.
We know from government statistics that a child dies from a preventable injury on our nation’s playground every month. These deaths are caused as follows: 51% when a child is accidentally hanged, 21% when a child falls with an injury involving head trauma, 16% when equipment tips over or collapses. According to the US Consumer Products Safety Commission a child is rushed to an emergency room with a playground injury every 2 ½ minutes. That is more than 200,000 preschool and elementary children a year in the United States, 79% of these injuries involve falls. The severity of an injury from a fall is determined by the height from which the child fell and the surface on which the child lands.
When it comes to playground safety, don’t assume your child is protected. Playground safety laws and regulations are as varied as toddlers’ mood swings. For example, many cities will have safety codes, but counties will not; even though the city and counties playgrounds are close together. According to the National Playground Safety Institute, children and their parents should be capable of recognizing unsafe conditions with simple guidance. The question is, does the playground operator or owner provide that guidance.
Playgrounds should be regularly inspected, either by the owners or the people using it. These inspections should consider the following elements:
1. Condition of the Equipment: Are there broken or missing components? Is the paint missing or peeling? Are the swing seats made or heavy or rigid material such as wood or metal, the can seriously injure a child? Seats should be made of rubber or canvas.
2. Surfaces must be Smooth: Are the surfaces rough or ragged? Are the surfaces designed to absorb impact? Are there sharp points or cornices, edges, nails or splinters? Are there protruding nuts or bolts?
3. Trip Hazards: Are there any objects children might trip over? Are there exposed footings, anchoring devices, or environmental obstacles such as tree roots?
4. Tipping: Is any equipment not properly secured and might tip? Are the foundations of slides, monkey bars, and swings loose or moveable?
5. Adequate Fall Zones: A fall zone is a soften area around the equipment where a child could fall. Are there buried foundations in the fall zone? Does the surface material extend at least six feet from the equipment in each direction? For slides, the surface must extend the height of the slide plus four feet. For swings, the surface must extend twice the height, in front and behind the swing. Concrete is never appropriate for a fall zone.
6. Gaps or Spaces: Are there gaps or spaces in equipment in which a child could get caught or that could catch clothing? Are there open spaces in S hooks? You should not be able to slide even a dime or credit card in this space. Are there gaps and protrusions in slide areas? Could a child get caught in between ladder rungs? Rung space should be smaller than 3 ½ inches or larger than 9 inches.
7. Electrical Wires: Are there exposed electrical wires in or around the playground?
8. Dangerous Tree Limbs: Is there evidence of diseased or dying branches of trees over hanging or surrounding the play area?
9. Surface Areas Safe and Uniform: What is the surface area of the play equipment; woodchips, sand, grass, cement, pavement? Does the surface cover the area uniformly? Is the surface covering at least 12 inches deep with woodchips, mulch, sand, shredded rubber or pea gravel and safety tested rubber mats?
10. Hazards Removed: Are there any of the following found on the playground; unsecured climbing ropes, swing trapeze bars, exercise rings, or trampolines?
In looking over these hazards from a legal standpoint, I quote the following phrase, “It’s better to have a fence at the top of the cliff than to have an ambulance at the bottom.” The exercise of due care by the owners of the playground or the vigilance of parents, may prevent a tragic injury with lifetime consequences to a child.
