Preventing playground injuries and litigation.

Those responsible for children's playgrounds are concerned with two major factors - safety and play value. The chief goal of playground professionals is simply to create play environments that are reasonably safe. If we achieve this goal, we reduce the likelihood of litigation and, should litigation arise, increase the likelihood of achieving a satisfactory resolution.

When a child is injured or killed in a playground accident and litigation ensues, the defendants frequently include those responsible for designing the implicated equipment, those responsible for installing the equipment, those responsible for maintaining the equipment and those responsible for supervising children at play. These four variables: design, installation, maintenance and supervision, are also the primary variables to be considered in preventing injuries on playgrounds.

Playground Equipment Design

Among the four variables commonly involved in playground injury and resulting litigation, equipment design is perhaps the easiest for purchasers/operators to resolve. The key is to purchase the best, safest equipment from the best, most safety-conscious manufacturers. Unfortunately, past and current practice in selecting/purchasing equipment is all too frequently based on tradition. "We have always purchased our equipment from X manufacturer, so why should we change now?" The simple answer to this question is that some manufacturers create better designs for both play value and safety, research their equipment more carefully, keep abreast of research on play and play environments, provide better service before and after the sale, and are more involved in constant improvement of their products than are other manufacturers.

The typical bid process for purchasing equipment may be a combination of advertising bids to a few manufacturers and selecting based on lowest bid rather than quality of design and manufacturing specifications, evidence of fiscal soundness and quality of service. An initial step in preparing bid specifications is locating and using the highest quality (toughest) design specifications available. A number of playground manufacturers print specifications in their catalogs. Such public display of specifications is one indication that the company is focusing on quality and is willing to compare item for item with the competition. The best specifications are very detailed, covering materials of manufacturer (fasteners, coatings and so forth), equipment parts (decks, posts and so forth) and play events (slides, climbers and so forth), and referencing the United States Consumer Product Safety Commission (CPSC) guidelines, the American Society for Testing and Materials (ASTM) standards and other equivalent guidelines and standards.

Manufacturers will usually grant permission to use their specifications in the bid documents and process. The purchaser can help assure objectivity in the bid process by leaving space in the bid documents next to each specification for proposed modifications by alternative bidders. The preamble to the bid document may specify that all modifications must be equivalent quality to the original specification as judged by the purchaser. Such care by the purchaser helps ensure that low dollar bids representing inferior equipment do not prevail. There is an extreme range of quality in playground equipment, not always obvious to the untrained purchaser, so beware. Large volume purchasers who are bound to strict purchasing requirements should always involve their attorneys in preparing bid specifications, purchase contracts and other legal documents.

Additional steps that help ensure safety on the playground and security in litigation include selecting manufacturers with large liability insurance policies, evidence that the company is meeting or exceeding national safety guidelines/standards, ongoing research in both manufacturing and field (playground) contexts, staff and/or consultants in both engineering (design) and child development, full-time field representatives in the geographical area where equipment is purchased and long-term warranties.

Deep Pockets a Focus

Typical liability insurance policies held by manufacturers range from $1 million to several million dollars. The lower limit appears to have been sufficient in all but a handful of major city playground accident court judgments that have ranged from $8 million to $32 million, all resulting from falls onto hard surfaces such as asphalt and concrete. It is correct that plaintiff's attorneys focus their efforts on the "deep pockets," those with large insurance policies or with extensive personal resources. Since the manufacturer is usually held responsible for injuries resulting from the implicated equipment's faulty design, it is unwise for playground operators or managers to make any modifications to equipment without the manufacturer's written approval. Modifications are normally done through interaction with the manufacturer's local representative, who personally examines the equipment to be modified and consults with the manufacturer's engineering staff for specific instructions. Since national playground equipment guidelines/standards are periodically modified, the playground budget should include funds for future renovations as well as regular maintenance needs.

The prospective purchaser should confirm that proposed manufacturers or vendors are meeting or exceeding the current United States Consumer Product Safety Commission guidelines for public playground equipment and the American Society for Testing and Materials standard for playground equipment for public use. Most playground manufacturers now indicate such compliance in their catalogs, but the extent of compliance varies widely from manufacturer to manufacturer. Prospective purchasers should have a safety officer or other designated safety specialist confirm compliance by personally comparing equipment in use or proposed equipment against the guidelines and standards. Unfortunately, most of the equipment designed during the early 1900s, with minor modifications, can still be purchased. One meaningful test of safety awareness and concern of the manufacturer is to review the equipment described at the back of catalogs. Is it identical or similar to the equipment you played on as a child several decades ago? Is it radically different from the high-tech, modern equipment depicted at the front of the catalog? Does it appear to meet the national safety guidelines/standards?

Playground operators and managers should use the CPSC safety guidelines and the ASTM safety standards because they represent many years of research and deliberation by the nation's leading specialists in playground safety. They are the most carefully constructed and best documented guidelines/standards available for use in the United States. A number of common specialists worked on both documents and there is reasonable consistency between the two documents. Collectively, the two documents cover both the consumer's needs (CPSC) and the manufacturer's needs (ASTM). The numerous other guidelines/standards available nationwide are less authoritative, and, in numerous instances, conflict with the specifications of CPSC/ASTM. In playground injury litigation, the CPSC guidelines are the dominant criteria for determining negligence in equipment design. The ASTM standards will carry equivalent weight.

Some of the leading playground equipment manufacturers are now conducting extensive research on their products in a factory context. A few are establishing field research sites to test their equipment. The in-house research addresses such factors as quality, durability and safety of materials and the field research addresses the above variables plus issues of play value or developmental/age appropriateness using children as research subjects and contrasting play environments as research sites. This dual approach to research is consistent with patterns already established for many other consumer products. Extent of involvement in such research is yet another criterion for assessing the potential value of a manufacturer's playground products.

Installing Playground

Equipment

Most manufacturers now provide detailed guidelines or specifications for installing equipment, preparing resilient surfaces, accommodating children with disabilities and meeting the needs of different age groups. Installing equipment according to these specifications and securing written confirmation reduces the purchaser's potential liability. The purchaser should require personal inspection by a safety officer or other designated safety specialist to ensure that factory installation specifications are consistent with CPSC guidelines and ASTM standards. Following installation, additional checks should confirm that the above requirements have been met

In both design and installation, you must take into account the playground's layout or zoning. Equipment must be designated to provide appropriately located and properly sized fall zones for resilient surfacing. Designers and engineers determine whether play events are properly spaced on composite units (superstructures or combinations of decks and play events) and specify how equipment is to be installed at a particular site. Consequently, the manufacturer's representative sends preliminary site plans developed by the potential purchaser to the manufacturer's designers and engineers for analysis and layout. The usually results in a computerized site plan showing exact sizes and spacing of equipment in relation to fall zones, other equipment and natural features. This service is usually free and is essential to ensuring compliance with manufacturer's installation specifications and conformance with CPSC guidelines and ASTM standards. Further, these computerized site plans can be faxed back and forth between purchaser and manufacturer to facilitate modification and final approval of the plans.

Maintaining the Playground

Responsibility for playground equipment design usually is assumed by the manufacturer and installation by those contracted to install the equipment. Maintenance, however, is in most all incidences the responsibility of the city, school, agency or other entity managing the playground's day-to-day operation. Three national surveys of playgrounds, public schools, community parks and preschools reveal that playground maintenance is neglected throughout the United States. A survey of Boston playgrounds found that 100 percent had unsafe surfaces. Surfacing under and around playground equipment is particularly important in preventing playground injuries. Between 60 and 70 percent of all playground injuries and 90 percent of serious playground injuries result from falling onto hard surfaces. Few organizations responsible for playgrounds have well-developed maintenance programs and most of the existing equipment is antiquated in design, hazardous and generally inappropriate for the developmental play needs of children.

A common historical pattern of care began decades ago when cities and schools outfitted their playgrounds with an array of heavy-duty, extremely durable climbers, seesaws, slides, swings and merry-go-rounds, placed randomly or in rows around open fields, all designed for a single activity-exercise or motor play. Over time the ground underneath was packed rock-solid by children's feet and the equipment began to deteriorate. To compensate for pits filled with water and mud in heavy traffic areas under equipment, asphalt paving became the surface material of choice throughout the country. These two patterns - hard surfacing and deteriorating equipment, coupled with lax or non-existent maintenance - set the stage for a growing array of child injuries, ranging from about 118,000 in 1974 to about 250,000 in 1992. Some groups opted to remove their playground equipment rather than to replace outmoded equipment, install resilient surfacing and develop maintenance programs. Such short-sightedness reveals almost unbelievable ignorance and lack of concern for the child's need and right to play and assumes that without equipment, children will not play in parks or will not be injured and that cities or other public entities will escape liability.

The first step in preventing playground injuries and litigation is to develop a comprehensive playground safety program. Early in this program the sponsoring agency should thoroughly evaluate all existing playgrounds and equipment. This should be done by a reputable playground safety specialist working with the playground sponsor and should result in a detailed written report of findings and recommendations. Recommendations to remove and/or repair equipment, surfacing or other hazardous elements should be pursued immediately. Removal or repair of elements that pose a risk for fatality or serious injury should be assigned first priority. Develop a master plan to guide renovation of existing play areas or development of new ones. Carefully document and preserve all actions resulting from these steps or those to follow.

Make immediate written reports of all injuries requiring medical attention. These should be comprehensive, noting names, addresses and phone numbers of all involved parties including witnesses, date and time of incident, precise description of the incident, police and medical personnel reports, and description and photographs of the accident site, including implicated equipment, surfacing and other physical elements. In the event of injury litigation, this material, including inspection checklists, will be secured and used by the opposing attorneys. If records are poorly kept or show patterns of negligence, they will be used against the defendant. The wise playground sponsor will keep regular, detailed, complete, accurate inspection, repair and accident records and these will be filed for ready access in the future.

Supervising the Playground

Playground sponsors should respond promptly to complaints about equipment design or playground maintenance by users. In the course of litigation parents frequently indicate that they contacted the owners many times about playground hazards (particularly surfacing problems), but their complaints resulted in no action.

Methods of playground supervision vary widely. Backyard playgrounds are supervised primarily by parents. Public and private elementary schools and child care center playgrounds typically are supervised by teachers and/or teacher aides. Most public park playgrounds in the United States have no formal supervision, that is, supervision is left to the parents.

Many parks and recreation departments, particularly in cities, hire full-time or part-time supervisors or play leaders, most frequently during summer months. In playground injury litigation, supervision is invariably an issue. The most common issue is, "What constitutes reasonable supervision?" Only a handful of state departments of education, responsible for monitoring public schools, have any regulations at all regarding playgrounds. Some states have legal immunity to tort liability covering playground injuries. This often leads to a false sense of security on the part of school officials, because creative attorneys are learning alternative techniques for securing judgments in public school litigation and judges are re-examining immunity laws.

Most states regulate the size of classes in public schools, prescribing maximum class sizes of roughly 20 to 25 primary level children under the supervision of one teacher. Given the fact that most school-related injuries occur on the playground, it is unreasonable to exceed this ratio for playground supervision.

Consequently, the common practice of assigning several classes of children to one playground supervisor reflects poor judgment by school officials. States also regulate the child/teacher ratios in child care centers. The younger the child, the smaller the ratio. For example, the maximum ratio for infants is usually three or four infants to one adult and ranges to about ten to 15 children to one adult for ages four to five. The child care center should not exceed these recommended child to adult ratios on the playground. Public schools and child care centers often use adjacent public park playgrounds and teachers must exercise extra caution, as public parks are open to the public during school hours, and children must play among strangers. Since public park playgrounds usually operate without formal supervision, the issue of reasonable supervision focuses on whether the teacher or parent who accompanies children has exercised reasonable care.

Regardless of the playground setting, if supervisors or play leaders are employed and/or utilized, they must be properly trained for the role. Training should include techniques of interacting with children (supporting and encouraging play, helping to resolve disputes and so forth), identifying and preventing dangerous play activity (throwing gravel, pushing others off heights, walking on top of guardrails, protective barriers and horizontal ladders and so forth), playground safety (identifying and correcting safety problems, reporting to administrators and so forth), dealing with injuries (first aid, attending to injured children, reporting injuries and so forth).

Training for All

Training should be conducted on a regular basis and should include everyone who supervises children on the playground. New play leaders should be trained before beginning their work with children. In a general sense, reasonable supervision means that the play leader has been trained and is supervising a reasonable number of children. More particularly it means that the play leader is present. One must not assume that reasonable supervision exists when the play leader is too far away to maintain visual and auditory contact with the children. Nor can it be assumed that the play leader can possibly maintain sufficient proximity to children to catch them should they fall off the play equipment. No matter how well trained or how alert the play leader, supervision cannot compensate for poor equipment design, installation or maintenance. A hazardous environment will likely result in a disproportionate number of injuries.

You must take into account the developmental and age ranges of children when designing and using the playground. The CPSC safety guidelines give specifications for ages two to five and ages five to 12. Separate play areas are needed for preschoolers and school-age children. Infants and toddlers also need a special area and equipment designed and zoned for their developmental needs.

Many playground injuries result from small children with poorly developed motor and cognitive skills playing on equipment designed for older and more mature children. A case in point in the very large number of broken bones resulting from small children playing on excessively tall horizontal ladders and falling onto hard surface material. Warning signs should be placed at the entry to playgrounds indicating the age range for which the particular playground area was designed, noting that children should be supervised by adults at all times and warning about any known and unusual features of the playground that might warrant special attention (for example, resilient surfacing freezing solid in cold weather, bare metal becoming hot in direct sunlight, special devices to be used for wheelchairs only). Signs do not eliminate liability for playground injuries, but they are evidence of care, and they support the overall safety program.

Given the large number of children who drown or suffer brain damage each year in private and public pools, many in close proximity or integrated with public playgrounds, we must exercise special caution in these areas. Toddlers are at great risk - they are very active, are attracted to water, can pass through narrow spaces under and through fences, can climb low fences or fences with hand/footholds and do not have the mental abilities to predict consequences of their actions.

Although many cities have no pool safety codes or very limited and ineffective codes or ordinances, a growing number are adopting regulations equivalent to national guidelines and standards (National Swimming Pool Institute Standards; U.S. Consumer Product Safety Commission Guidelines; American Public Health Association Regulations; BOCA National Building Code; National Recreation and Park Association Guidelines). In general, the most relevant safety criteria include providing safety barriers (fences five to six feet high and difficult to climb, no open spaces greater than four inches and self-closing, self-latching gates), warning signs, emergency equipment and exacting maintenance to ensure that all the above elements remain in good repair.

Have It Both Ways

The process for improving playgrounds must be a reasonable one. It is unacceptable merely to remove or simplify children's play equipment or to promote the uniformed view that safe playgrounds must be sterile. The most exciting, developmentally challenging play environments can also be safer play environments. We can have it both ways. Initial steps should include developing a prioritized master plan to guide development, and adopting minimum criteria (the sorriest that a playground should be) to assess and monitor safety. The CPSC guidelines and the ASTM standards serve the safety criteria need. As designers and developmentalists combine research energy, linking laboratory studies of equipment with field studies of children, striking contrasts between old and new play environments will become obvious. Injuries on playgrounds are not just an inevitable consequence of growing up and play is not merely a frivolous, unimportant, childish pastime.