WHAT IS THE MINIMUM STANDARD OF CARE THAT THE PLAYGROUND OWNER MUST PROVIDE?

Playgrounds are a fundamental part of any child's physical, intellectual, social, and emotional development. The public playground environment is a broad term that may be defined as an improved area designed, equipped, located, and set aside for children's play. It includes play equipment, protective surfacing, fencing, signs, internal routes, internal landforms, vegetation, and related structures. Unfortunately, more than 230,000 children are treated in U.S. emergency rooms each year from injuries associated with the playground environment, according to the National Electronic Injury Surveillance System. Therefore, playgrounds must be made a safe haven for America's children.

The preponderance of public playground accidents is caused by poor equipment layout, improper equipment, inappropriate protective surfacing, poor installation, and poor maintenance. There exist many theories as to why there are so many injuries: from the very young user who walks in front of a moving swing to an aggressive older child who slides down a slide upside down and backwards, to the playground owner who lacks the knowledge to prevent unreasonable risk of harm to the curious and probing child.

The courts have ruled that the type of visitor or status of the user determines these legal duties. The courts have divided visitors into three fixed classes: invitee, licensee, and trespasser. When a playground owner (city or school agency) invites the public into a playground environment the child (visitor) accepting the invitation is considered an invitee. That invitation is established when an agency sets aside a public area with playground equipment and refers to the area as a playground. The law requires the playground owner to provide the highest duty of care to a child (invitee) and must exercise due care to prevent unreasonable risk of harm to the child from playground equipment and other playground site hazards. The law also recognizes that children do not have the cognitive ability to recognize hazards such as improper surfacing materials or head entrapment hazards. Specifically, the duties, required by the owner to the invited child, can be divided into four areas.

AREA ONE

To provide an adequate and proper playground environment that will permit the child, based on their anthropometrics and limited cognitive ability, to develop and play safely.

Site Location of Playground Environment

The mere sight of a colorful playground can invite or attract a child. The owner has a duty to locate the playground in an area that permits safe travel to and from the playground by the user. A safe site would include a location isolated from vehicles of any kind, roads, streams, railroad tracks, cliffs and the like. The playground should also be isolated from charcoal grills and activity centers such as baseball fields. A fence/barrier surrounding the playground is also necessary to prevent vehicular intrusion as well as other participants' intrusions. Fences (ASTM F 20049) also serve to contain the user and to funnel children into and out of the playground through designated safe locations.

Age Appropriate Separation of Playground Areas

The playground must be designed to permit children to develop gradually and exercise their skills by providing a series of graduated challenges. The challenges must be appropriate for each age related ability and must be ones that the child can perceive and choose to undertake. Preschool (2-5) and school age (5-12) children differ dramatically in their physical size, physical ability, cognitive, and social skills. Thus the owner has a duty to establish separate and distinct age appropriate playground areas. To accommodate these differences, the owner must also select age appropriate equipment for these separate areas. The intended age appropriate group should be obvious from the design, scale, and layout of the playground environment.

Site Location of Equipment

The playground owner has a duty to locate playground equipment in separate areas to avoid overcrowding in any one area and to facilitate safe circulation routes within the playground environment. Swings, merry-go-rounds, and other moving equipment must be located at the perimeter of the playground environment. Exit areas of slides must flow into the least congested areas of the playground. Special attention should be given to equipment placement to eliminate any visual barriers. This provides necessary clear lines of sight to facilitate adult supervision. Owners must also separate frequently used equipment to avoid congestion and conflict. Equipment that encourages robust physical activity must also be separated from equipment that encourages passive activity.

Use Zones for Equipment

The owner's minimum duty of care is to establish a safe use zone (ASTM F 1487, CPSC) for each play equipment structure. This use area consists of an obstacle-free surfacing area that conforms to ASTM F 1292 and/or CPSC for the fall height of the playground structure. In order to prevent a serious head injury, the use zone must be free of obstacles that children could fall onto. Where overcrowding exists, a supplemental circulation area beyond the use zone is recommended. Overhead obstructions above the use zones, which are not part of the play structure, such a tree limbs, must be seven feet above the designated play surface. Utility lines above the use zone must comply with all electrical safety codes.

Protective Surfacing Material

Since falls represent nearly 75 percent of all playground injuries, the surfacing material under and around playground equipment can be a major factor in determining the potential injury of a fall. Head impact injuries from falls always have the potential to be life-threatening. The owner's duty is to select protective surfacing material that complies with ASTM F 1292 and or CPSC. The surfacing material must have a critical height value of at least the heights of the tallest designated play surface that will prohibit a life threatening head injury.

AREA TWO

To provide a systematic ongoing inspection program that will ensure the standard of care necessary to permit continuous safe play.

The safety of the playground environment and its suitability for safe, age appropriate use depends upon reliable inspection and maintenance programs. The owner has a duty to establish a comprehensive ongoing systematic inspection program to maintain the standard of care established when the playground environment was first audited as in compliance with national and local safety guidelines and standards (ASTM F1292, ASTM F 1487, ASTM F 2049 and CPSC). For example, the loose-filled protective surfacing within the use zone of each play structure must be inspected for sufficient depth, containment and material integrity, and must be free from extraneous materials that could cause injury, infection or disease. Further, all equipment, protective surfacing materials, use zones, ramps, routes, protective barriers, fences, guardrails, protrusions, sharp points, head entrapment, hand gripping components, platforms, moving parts, and others must be inspected for hazards or potential hazards. All hazards discovered and items not in compliance with recognized practices during systematic inspection must be repaired immediately by the owner in accordance with national standards and guidelines and manufacturer's procedures. All head entrapment hazards, entanglement hazards, strangulation hazards, and surfacing hazards must be eliminated immediately.

AREA THREE

To provide proper equipment that will meet the anthropometrics and cognitive needs of the curious and developing child.

Owners have a duty to select age appropriate equipment that will accommodate the developmental levels of preschool age group 2-5 and school age 5-12, more specifically the 5th percentile 2-year-old through the 95th percentile 12-year-old. For example, the owner, when selecting climbing equipment, must recognize that this type of equipment presents a greater degree of physical challenge than other types of equipment. Older children tend to use climbing equipment more proficiently than younger children. Younger children have more difficulty using challenging climbing equipment such as arch climbers, non-rigid climbers, and upper body components. They have not yet developed the balance, coordination, and upper body strength needed to maneuver safely. The owner also has a duty to recognize that they must offer a safe way to descend from climbing equipment for younger children, since their ability to descend climbing equipment emerges later than their ability to climb up the same equipment. Younger children also have limited coordination and balance, are more prone to falls, and need guardrails and/or protective barriers at lower platform elevations then older children. Presently, nationally recognized guidelines and standards have been established for preschool and school age equipment (ASTM F 1487 and CPSC). Play equipment selected for a specific age group must have all play activities on that piece of equipment meet the requirements for that age group.

AREA FOUR

To provide informational signage that will identify age appropriate playground environments.

Children do not have the cognitive ability to recognize the challenges and danger that different playground equipment presents. Owners must clearly post signage in a conspicuous method directing adult supervisors to equipment appropriate for their child's age related ability. Further, the owner should, in a creative and perhaps pictorial way, direct children by signage to equipment appropriate for their skills and abilities.

Conclusion

Owners of public playgrounds owe the highest duty of care to the invited child and must exercise due care to prevent unreasonable risk of harm to the curious and probing child. The owner must anticipate foreseeable uses by the child (invitee) and to take necessary precautions to protect the child from foreseeable hazards that only the owner has the legal responsibility to recognize. The playground owner should take cognizance of the legal duties in the

* site location of the playground environment

* location of age appropriate play areas

* site location of age appropriate equipment

* establishment of use zones

* selection of protective surfacing materials

* performance of inspection

* establishment of maintenance programs

* selection of equipment and

* posting of informational signage.

Keith A. Wadell, Ph.D., CPRP, CPSI is the director of recreation management at the University of Wisconsin-LaCrosse in the Department of Recreation Management and Therapeutic Recreation. He chairs the National Playground Safety Institute Executive Board (NPSI) and the NPSI Certification Examination Committee, and has served as a national examination writer for the CPRP exam. Dr. Wadell is also a risk management consultant in safety and liability litigation. His article titled "What Is the Minimum Standard of Care that the Playground Owner Must Provide?" appears on page 80.