Article: 10 Ways to Avoid Playground Lawsuits

Kids don't lose in court. It's a maxim in the legal world, and it puts schools and daycares on a weak footing if a child gets hurt on the playground. And kids definitely do get hurt – each year, 205,000 playground injuries nation-wide result in trips to the emergency room. But you don't need to be injured to file a lawsuit against a playground owner: special needs students can file claims if your play area doesn't grant them access under the Americans with Disabilities Act (ADA). By taking a few basic steps, you can avoid litigation related to playground use.

1. Read the official playground safety guidelines, and follow them. The U.S. Consumer Product Safety Commission's (CPSC) Handbook for Public Playground Safety is a short, easy-to-read publication (click here). “Public playground” includes private commercial playgrounds in schools and daycares. Fifteen states have adopted the CPSC guidelines as law in whole or in part, so if your playground is located there, hop to it! (Click here for a list of the states.) In other states, you don't have to follow these guidelines, but doing so will help to show that you have operated your play area using “reasonable care,” a common standard in negligence lawsuits.

2. Get a playground inspection by a Certified Playground Safety Inspector (CPSI). CPSIs are trained by the National Parks and Recreation Association and must pass an exam about playground guidelines and standards issued by the CPSC and the American Society for Testing Materials (ASTM). An inspection by a CPSI will teach you things that you never knew about your playground, and prevent problems before they occur. Consider requesting an exhaustive playground audit, usually used by schools seeking certification from the National Association for the Education of Young Children (NAEYC). Either way, have your playground inspected at least once a year. CPSI work is completely confidential, and the information is not shared with any government agencies or other businesses. To find a CPSI near you, click here.

3. Put down adequate protective surfacing. The #1 cause of injuries on public playgrounds is falling from play equipment. So if you don't have adequate surfacing under the equipment, you could find yourself in hot water. Woodchips, wood carpet, rubber mulch, rubber tiles ... whatever surface you use, make sure your playground is appropriately covered. Grass and dirt don't count. Woodchips and wood carpet generally require 9” of depth; artificial surfacing may require less. How much do you need? Check the CPSC guidelines (click here).

4. Make your playground compliant with the Americans with Disabilities Act (ADA). Activist organizations are filing lawsuits to force school districts to comply with the ADA. Avoid them by creating gaps in any playground borders that prevent wheelchair access to the playground. Add a transfer platform to large play structures, if possible. Switch your playground surfacing from woodchips to engineered wood fiber (a.k.a. wood carpet or wood rug). It's ground more finely than woodchips, so it's wheelchair-accessible and ADA compliant. (Click here to read one federal court's recent ruling that woodchips violate the ADA.)

5. Document everything. Create a file of playground-related materials, including equipment plans, warranties, and receipts; records of purchases (woodchips, etc.); a playground inspection report by a CPSI (see #2 above); and a comprehensive playground plan, including a statement of purpose (the National Playground Safety Institute will even help you with the plan). If your playground changes in any way, make sure that you document the changes. Designate, in writing, a member of your staff as the playground coordinator. Keep all of this information in a single file that's easy to find.

6. Buy quality equipment. “You get what you pay for” is a rule that definitely applies to commercial playground equipment, so don't skimp on price at the expense of quality. The manufacturer should be a member of the International Playground Equipment Manufacturers Association (IPEMA, click here). Don't use residential equipment on your commercial playground, even if it's made by a company that also produces commercial products (i.e., Little Tikes).

7. Avoid wooden playground equipment. The lumber that is used in playground equipment and home decks and porches is pressure-treated with chemicals to prevent aging. Every few years, the CPSC decides that one of these chemicals poses a cancer risk, and the industry switches to a substitute. First, it was chromated copper arsenate (CCA), then it was ACQ (alkaline copper quaternary). Five years from now, it'll probably be another chemical. Wooden equipment also has maintenance issues: sanding down some types of pressure-treated wood poses a health risk. Avoid this whole song and dance – and possible legal action from concerned parents – by buying plastic or metal playground equipment. (Click here for CPSC information on pressure treated wood.)

8. Supervise the kids. Accidents are less likely to happen – and lawyers are less likely to beat you in court – if you can show that the kids on your playground are adequately supervised. Create a written schedule of which teachers will be on the playground, and keep copies in a file. Some schools have removed the benches from their playgrounds because some teachers may sit down and socialize instead of watching the kids.

9. Provide signage. The CPSC recommends that your playground has a sign that states the hours of playground operation, the ages permitted, and a warning that “Adult supervision is recommended.” After all, in the eyes of the law, failure to provide information may be viewed as withholding information. (Check your local sign shop for cheap custom-made signs.) Also, each play structure should have a label clearly showing the manufacturer's name and the recommended ages for that structure.

10. Secure the premises after-hours. When you think about playground safety, you probably just think of the kids who attend your school or daycare. But as a property owner, you can be held liable for injuries to anyone who enters your property after-hours, even just for kicks. Lock the playground gates outside business hours. Put up signage stating that the playground is only for daytime use. If you have the resources, install a higher fence around the play area. The more effort that outsiders must make to get into your playground, the less likely you'll be held liable for any injuries they suffer while they're there.
    

LINKS
For more information on playgrounds and playground safety, the following organizations offer useful advice and guidelines:

      • U.S. Consumer Product Safety Commission (CPSC)
      • International Play Equipment Manufacturers Association (IPEMA)
      • National Playground Safety Institute (NPSI)
      • American Society for Testing and Materials
      • National Program for Playground Safety
      • Centers for Disease Control and Prevention -- factsheet on playground injuries
      • National Safety Council
      • ADA Accessibility Guidelines for Buildings and Facilities (ADAAG)
      • Maryland-National Capital Park and Planning Commission (M-NCPPC)

André Henderson is the Communications Director of Maryland Materials, a national seller and installer of playground equipment and parts. He is also a Certified Playground Safety Inspector (CPSI) and a licensed attorney in the District of Columbia. His blog, Recess Judicata, covers playground litigation and recreation issues.

Note: The information provided in this article is not to be considered legal advice. For legal advice, please consult a licensed attorney in your jurisdiction. Maryland Materials will not be held liable for any actions taken in reliance upon this article.