To limit liability risk, playground operators must familiarize themselves with safety guidelines, and identify and correct potential hazards.
It's been known for a long time how important it is to provide playgrounds for children. Socrates said back in 400 B.C. that children need to have the opportunity to play in order to become well-adjusted adults. Playgrounds are vital to a child's physical, emotional, social and psychological growth.
However, playgrounds can be dangerous. Depending upon which statistics you look at, anywhere from 150,000 to more than 200,000 children are admitted to hospitals each year because of playground injuries - and those are only the injuries severe enough to warrant a hospital visit.
If your facility includes a playground and you have not been sued yet, consider yourself lucky. This is no longer an area that can be treated lightly. Consider the liability implications of designing, installing and inspecting playground equipment yourself. Governmental immunity will cover an employee's legal expenses, but if he or she is personally named in a lawsuit, he or she may be held financially responsible if the jury feels there has been gross negligence.
In a recent case, a child incurred a 1inch scar on his elbow after another boy pulled him off a chin-up bar. The equipment and surfacing passed inspection, and there were no broken bones, just a scar. The child's family settled out of court for $50,000.
The leading cause of public playground injuries is a lack of supervision and improper behavior, which cause 44 percent of all injuries. If supervision is normally supplied and someone gets injured when it is not supplied, you may be liable. Playground supervisors should be well trained regarding proper use of equipment, so they can enforce proper behavioral rules. There are a number of ways this can be accomplished.
First, assess equipment and its use patterns to establish where and how supervisors should stand, guide and walk by users. It would be unreasonable to expect supervisors to be everywhere like a safety net, so set priorities. Also be cognizant of supervisor/child ratios. If there is a problem child who can't follow rules, he or she is putting the others at risk, so consider a "time out."
In order to avoid misuse, post signs that show how to use the equipment correctly. Although kids may not read them and some adults might ignore them, signs are a great aid to those who pay attention to them. They are a benefit in any lawsuit, because they help avoid a "failure to warn" accusation.
Signs should identify what age group the equipment is intended for. Keep the age groups separated by stating that one area is for ages 2 to 5 and the other is for ages 5 to 12. Keep in mind that the 2 to 5 age range may change to 18 months to 5 years old shortly. Each sign should have a graphic image to illustrate proper usage to non-readers. Warnings against popular misbehaviors are recommended as well. Even though all misbehaviors cannot possibly be covered, it shows that the owner exercised reasonable care. It is also wise to state "Supervision is required." Make certain that each type of equipment has a sign that pertains to it, not just the most popular ones. Signs must have the legal letter size and density according to ANSI standards to hold up in court. Coloring is also a consideration, so that users and adults notice them.
To make playgrounds as safe as possible, administrators should be knowledgeable about standards designed specifically for playgrounds. The American Society for Testing and Materials published a set of technical standards (F1487) for public-use playground equipment in 1993 and revised it in 1995. The Consumer Product Safety Commission published guidelines in 1981 and revised them in 1991, and again in 1994. Both ASTM and CPSC are working on the next revisions, as the introduction of new equipment styles and the refinement of accident data requires frequent adjustments. The changes are needed, but can be frustrating for owners to keep up with.
To compound the problem, the ASTM standards and CPSC guidelines conflict in some areas and both have sections that can be misinterpreted. The chances are good that a misinterpretation will be discovered after an injury occurs and a lawsuit has been served.
Once standards have been reviewed, playground hazards need to be identified. The problem is, owners may not know they have a problem until someone gets hurt. There is little dispute as to the importance of getting playground hazards identified, but the question is, who should do it?
An inspection is usually performed on a periodic basis, depending upon the level of use, maintenance, environmental factors and materials used. Free "frequency of inspection" forms are available. The internal audit is more detailed than a routine inspection and is performed only once, unless the equipment or surfacing is modified or relocated. The audit is designed to reveal hazards not found during routine inspections. Audits must be performed by a certified playground safety inspector (CPSI). It's important to find someone who will do an efficient job and have correct interpretations of the standards and guidelines.
There are many ways to eliminate liability and increase safety. For example, an excellent step is for owners to obtain their own certification in order to retain a maximum level of safety after a third party audits their site. However, it's not the only thing to do. Train staff, and repair and replace equipment - but remember, no one method is the single cure-all.
In undertaking an audit, the first step is to identify the age group using the playground. Ideally, separate the children (and equipment) into user age groups of 2- to 5-year-olds and 5- to 12year-olds. These two age groups play differently and have different anthropometric sizes that the equipment should accommodate. However, this may not always be possible to do because of budget or space constraints, which is why there is some equipment designed for 2to 12-year-olds.
The center of gravity on 5- to 12-yearolds is higher than on 2- to 5-year-olds, so guardrails and barriers are different. The younger ones are not yet developed enough to handle certain pieces of equipment such as sliding (fire) poles, high spiral slides, narrower steps and flexible climbers that do not allow their feet to be on the same level before ascending. The play value and challenges should be there for each group. Once the age group for which the equipment was designed is identified, proceed with inspecting for the correct measurements.
The next step is to identify the tools that will be needed to do an inspection. Like a doctor, an auditor not only needs the right tools, but the know-how to use them properly and draw the right conclusions. Most auditors purchase inspection kits that include both torso and head probes, as well as protrusion gauges. An angle finder, feeler gauge, shovel and tape measure should also be purchased. Auditors can do a good job with these tools, but a thorough job takes even more tools. These include:
• Abrupt and continuous curve slide rule tools, along with a sidewall curve gauge for checking lateral discharge on spiral and curved slides.
• Gauges for the 50 lbf. (pounds of force) test, which takes into account compression of skin to allow a child to squeeze through an opening and become entrapped. Get the right gauges or hire someone who knows how to do this tricky test.
• An articulated probe that detects pinch points in some areas that are not detectable with standard rods.
• Tools that test for partially bound openings, such as sifters, a micrometer and a 30-inch radius gauge.
Once the correct tools have been obtained, common hazards such as entrapments, entanglements, protrusions and gaps should be identified.
Advanced hazard identification takes time, mixed with experience auditing different types of equipment. This may require visiting sites other than your own, which may cause you to change your interpretations of the standards and guidelines and fail some equipment you passed before. Following are several tips for identifying advanced hazards. These are only a fraction of the items commonly missed on audits and inspections:
• Pits are common at the ends of slides. Don't adjust the slide until the surfacing is leveled for a correct point of measurement. It may be that a tile pad needs to be installed.
• Swing trajectories should be greater than 7 feet away from branches and power lines.
• Signs should have proper letter height, and show age groups and graphics.
• Slides should have a platform at the top of the slide that is as wide as the slide and at least 22 inches deep. If it doesn't, users lack the area required for a stable transition from standing to sitting, and can fall off.
• The torso probe should not fit in or around a barrier, such as a wall.
Once identified, hazards must be properly classified. Contact the manufacturer to share findings and cooperate on fixing the hazards. An owner who is not familiar with the rationale behind ASTM or CPSC standards might identify a hazard as a Class 3 hazard (least hazardous) and get to it later, when it should be a Class 1 (life-threatening) hazard, needing immediate attention. Ask, What is the chance of this happening? when classifying hazards.
Once hazards have been identified, who is responsible for fixing them? Lack of maintenance, which is responsible for 36 percent of reported injuries, includes such things as opened "S" hooks, or unkempt surfacing leading to exposed footings and lost impact absorption. The hazards may or may not have been present at the time of installation, and could be the fault of the manufacturer, installer, owner, or stem from accidental or natural causes.
The point is, be open-minded when assessing hazards and do not place blame too quickly. Manufacturers are doing a much better job of complying, but when new equipment is installed, are they aware of the standards and guidelines? If so, do they promise compliance? How do you know if they, and their installer, comply? To be on the safe side, a third-party consultant should review the plans and perform a site audit on your behalf. The only other way to truly find out is by getting sued, which is not the time to discover mistakes.
When fixing hazards, listen to the consultant's advice before making any final decisions. Options include fixing the hazard, discarding the piece (or whole unit), replacing the part or deferring the problem until later. Deferring the problem because of a lack of money or manpower is not an option if it is a Class 1 hazard. If for some reason the problem has to be deferred, either close down the site or remove the equipment until the problem is corrected. Deferring Class 2 and 3 problems will depend upon their severity and complexity. For example, if a site has 8 inches of mulch and 9 inches is required, it's probably a Class 3 hazard and can wait if it has to, but the longer the wait, the more chance of injuries and lawsuits.
Installing new equipment, parts or surfacing is the most expensive solution. Consider whether the new item will correct the problem or present a different hazard. Will the new piece fit the same as the one it replaced? New equipment could have more drawbacks than just initial cost. It's not always guaranteed that a new piece of equipment will be safer than the old piece it's replacing. Also, don't make the assumption that new equipment will automatically comply with CPSC and ASTM guidelines. Most manufacturers and installers sincerely put forth their best efforts to comply, but just to be sure, have a third party check it out.
Fixing one hazard can create another. For example, if an entrapment gap is discovered between two platforms and one of them is lowered, another entrapment can be created between it and a third platform. You could also cause the stepping distance to be greater than 12 inches (for 2- to 5-year-olds) or greater than 18 inches (for 5- to 12-year-olds), as well as going past the distance allowed between platforms and a horizontal ladder rung. Whoever performs the retrofitting, whether it's temporary or permanent, must clear any change with an experienced and certified safety auditor.
Once hazards have been classified and repairs and replacements determined, it's time to establish a timeline budget. Secure funding for parts and labor, and consider sharing costs with other departments, such as risk management or maintenance. Some costs will fall under capital improvements or repairs.
It's important to realize that an effort must be made to fix all hazards. If you do the best you possibly can, that's exactly what is reasonably expected of you. No one expects hazards to be discovered today and fixed by tomorrow. It's quite possible that the next class of hazards won't be able to be repaired until the next budget year. Don't forget to incorporate audits and inspections separately into the budget.
If any of the hazards are determined to have existed at the time of delivery or installation, contact the manufacturer or installer to see if he or she can correct the problem. The key point is to make sure you have the correct interpretation beforehand. Frequently the standards and guidelines have changed, but there are many times when the site was out of compliance the day the equipment was installed. Remember to always use the current ASTM standards (1995) and CPSC guidelines (1994) when auditing, designing and correcting hazards.
Playground surfaces must also meet ASTM and CPSC guidelines. Falls account for 75 percent of all playground injuries. ASTM and CPSC have a loose-fill surfacing chart that shows tested depths (9 and 12 inches) for specified heights. There is also a little-known chart that includes a 6-inch tested depth. Many entities assume that 9 inches is the minimum and buy and maintain 12 inches of surfacing. If 6 inches is actually the minimum surfacing depth, then they're spending twice as much as they should.
The most critical thing to understand is how to determine the fall height for equipment. This is easy to botch and could cost a lot of money in surfacing, as well as not provide the level of impact absorbency required. Have the correct fall height assessed and then either check with the chart or have it field tested. For example, if there is a 4-foothigh platform with a spiral (coil) climber that extends 3 feet higher than the platform, then the fall height is 7 feet instead of 4 feet. One solution may be to cut the foot rungs down, or replace the climber with one that has footholds level with the platform to keep from buying surfacing for that extra 3 feet.
Loose-fill surfacing is the least expensive material to use, but requires maintenance and needs to be refilled because it gets kicked and blown away, becomes compacted and may not have been the proper depth in the beginning. Level the surfacing first, or run a string line level and then measure it for a true reading. Tile pads may need to be installed under each swing, but be sure they're large enough to prevent trip hazards while swinging.
If a playground has loose-fill and must meet ADA requirements, paths of tiles or poured-in-place surfacing can work, as opposed to replacing all the surfacing. A few companies provide a product that looks like loose-fill surfacing, but is marketed as wheelchair-friendly.
If you're an owner concerned about being held personally liable in a lawsuit, you are not alone. Be extremely careful if you create your own playground designs, specifications or perform audits. If an audit or signage is not affordable, it's understandable, but realize how much more a legal defense could cost.
Keep an open mind when a hazard is discovered, because it may turn out that the finger you point just might turn your way. It's possible to have a playground that is fun, challenging and will pass inspections and audits. If you do the best that you and a jury would think is reasonable, then you're off to a great start.