According to the National Recreation and Park Association (NRPA), each year more than 200,000 children younger than 14 are hurt in playground accidents. More than 50 percent of the injuries are from equipment design flaws and construction defects. Playground equipment injuries range from muscle sprains, abrasions (scrapes), minor cuts, and bruises, to bone fractures, head and neck trauma, internal injuries, and strangulation.
In this section, we cover:
- Common causes of playground equipment injuries
- Product negligence and liability
- Using evidence to prove your child’s injury claim
- Dealing with the insurance company
- The role of attorneys
The U.S. Consumer Protection Safety Commission lists the most common causes of playground equipment-related injuries. They include bone fractures from falls from broken swings, collisions into playground equipment, bruises and abrasions from sharp-edged protrusions, head and neck injuries at pinch points, burns from hot surfaces, and strangulation from rope entanglement.
Design flaw or product defect
When a design flaw or equipment construction defect results in a child’s injury, the manufacturer has breached (violated) its legal duty of care. The nature of the design flaw or construction defect is legally the manufacturer’s negligence. This is essentially product liability.
Inadequate maintenance or repair
When inadequate maintenance of playground equipment results in a child’s injury, the entity responsible was probably negligent in not maintaining the equipment. Depending on the circumstances, negligence can make the manufacturer or the maintenance entity liable for the injured child’s damages. In some cases, both can be found liable.
Negligence and Liability
Pursuing a personal injury claim caused by faulty playground equipment requires a working knowledge of negligence and liability law. Some playground injuries are due to a manufacturer’s design flaw or a product defect, while others result from poor maintenance and repair.
Manufacturers of playground equipment and the entities responsible for its maintenance both have a legal obligation to do everything reasonably possible to ensure children will remain safe from bodily injury. To guide manufacturers in their design and construction, the U.S. Consumer Product Safety Commission (CPC) developed a handbook setting out guidelines suggesting playground material composites, signage, and other facets of playground construction.
Most states use the CPC’s guidelines and incorporate them into their building codes. State playground building code requirements normally apply to outdoor playgrounds accessible by the public, including those on private property, such as churches, child daycare facilities, apartment complexes, and homeowner associations in gated communities.
Proving Your Injury Claim – Evidence
To succeed in your child’s personal injury claim, you need credible and convincing evidence. Whether you believe the equipment manufacturer’s negligence or inadequate equipment maintenance were responsible for your child’s injury, you have the burden of proof. You must prove the manufacturer’s or maintenance entity’s negligence was the direct and proximate cause of your child’s injuries. You’ll do this with evidence.
Photographs and video
Photographs and video of your child’s injury is graphic evidence. It’s also important to take multiple photos and video footage of the injury’s cause. The photos can reveal the nature of the design flaw or product defect. The more pictures and video footage you have the better. Use different angles, including close-ups, wide-angle shots, and shots showing the context of the injury’s cause. Make sure to engage the date and time stamp function before you begin.
Example: Broken swing
Susan B. brought her six-year-old daughter Charlotte to a playground in a local public park. The city installed the playground equipment approximately 10 years ago. The base of each swing was made of a plastic composite similar to fiberglass. While in the midst of swinging, the seat holding Charlotte suddenly snapped in half and shards of splintering plastic flew into the air.
Unfortunately, Charlotte was at the top of her swing when the seat broke. She fell about eight feet to the ground, fracturing her left tibia and fibula (leg bones). Susan, along with several other parents there with their own children, rushed to Charlotte’s aid.
While waiting for fire and rescue, Susan asked another parent to use her cell phone and take multiple photos and video of the splintered and broken seat. The parent also photographed the shards of plastic that fell on the ground. In addition, the parent videoed Charlotte as she lay on the ground, cradled by her mother, crying hysterically in excruciating pain.
Building codes and prima facie evidence
Building code violations are often prima facie (a Latin term meaning “at first look”) evidence of negligence. Evidence showing the playground equipment was in violation of a building code can dismiss the need to prove negligence.
The courts refer to it as per se (by itself) negligence. The mere showing of a playground code violation is sometimes all you need to convince the insurance company to settle the claim – and quickly.
Insurance companies know if the claim ends up in court, the judge or jury will certainly find out about the code violation. They may render a verdict thousands of dollars higher than what the insurance company could have settled for.
Worse, if your child’s injuries were serious, evidence of per se negligence can result in the court assessing punitive damages over and above normal damages. Punitive damages are meant to punish the offender. It’s the courts’ way of making an example of a defendant whose gross negligence resulted in serious injuries, especially to a child. Punitive damages can reach hundreds of thousands of dollars.
Example: Code violation
Susan and Frank L. dropped their three-year-old daughter Carmen off at daycare. The daycare center had on its premises a playground with swings, monkey bars, slides, and more. To save money, the daycare center had an employee build and assemble the playground equipment. The employee had no experience in this task, and during construction, failed to follow local building code requirements.
While at daycare, Carmen’s head got stuck in an opening made too small for children of her age and size. When she couldn’t pull her head back through the opening, Carmen began to panic and cry out. While thrashing around, she suffered deep gashes to her neck and ears. A daycare center employee unintentionally made Carmen’s injuries worse by pulling on her torso to try to dislodge her. Upset with their child’s injuries, Susan and Frank sued the daycare center.
To support their claim, Susan and Frank went to their city’s building department where they looked up the code regulating the construction of playground equipment. It was clear there were multiple violations. Susan and Frank used proof of the code violations as per se negligence. As a result, the daycare’s insurance company settled the claim immediately.
Witnesses, especially independent Good Samaritans, are often invaluable. Their lack of financial interest in the outcome of your child’s personal injury claim makes them credible and convincing. The last thing an insurance company wants to see is a parade of parents testifying, under oath, about the excruciating pain they saw your child go through.
That’s why it’s important to get witness statements as soon as possible after your child’s accident. You want the insurance company to know what your witnesses have to say. The adjuster knows whatever is in the statements is the very same evidence a judge or jury may hear if the case later goes to trial. Remember punitive damages?
Example: Restaurant playground defect
John W. took his five-year-old son Everett to a birthday party for a neighbor’s daughter. The birthday party was at a local fast food restaurant with a playground on its premises. While climbing up the side of one of the playthings, one of the wooden steps broke off. As it did, Everett fell down, hitting his head on the hard ground.
Everett was still unconscious when fire and rescue arrived minutes later. Paramedics revived him after several minutes. The back of his head contained a bump with blood, which hemorrhaged when he fell.
Fortunately, there were several other neighbors at the party with their children. After photographing the scene, John asked several parents to act as witnesses. He asked them to write down what they saw on some paper he provided from his day planner. (Sworn or notarized statements aren’t necessary. They only become an issue if someone were to later allege a signature was forged. That rarely occurs).
John asked the witnesses to clarify how Everett used the equipment properly. He wanted them to emphasize Everett didn’t do anything to contribute to his own injuries. The witnesses then signed and dated their statements.
Dealing With the Insurance Company
Unless you have legitimate damages, you don’t have a valid personal injury claim. Insurance companies are businesses that want to pay out as little money as possible. They don’t have feelings and aren’t easily intimidated. Unless you have proof in the form of medical records and bills, receipts for out-of-pocket expenses, and/or verification of lost wages (incurred while caring for your child), the insurance company will offer you nothing.
Make sure your child’s medical records clearly link his or her injury to the design flaw, defect, or disrepair of the playground equipment. Make copies of your child’s records, receipts for parking fees and gasoline, and written verification of your lost wages. Send them all to the insurance adjuster.
Do not agree to settle your child’s claim until he or she finishes treatment. Once you settle and sign a release, that’s the end of the claim. Period.
The Role of Attorneys
If you believe your child’s injuries resulted from a design flaw or defect in manufacturing, you need an attorney. A manufacturer won’t admit its playground equipment was poorly designed or defective. You need an attorney to convince them otherwise. If other children were injured because of the same design flaw or manufacturing defect, there may be one or more class actions already filed.
Class actions are massive lawsuits filed by attorneys representing multiple plaintiffs in cases against corporate manufacturers and other large businesses. You don’t have to pay any fee to “opt in” to a class action. To see if there are any class actions against the manufacturer of the equipment that caused your child’s injury, go to ClassAction.org.
If your child’s playground equipment injury claim is against a government, you have to file a tort (wrongful act) claim. Insurance claims against government bodies are different from other personal injury lawsuits. If your child’s injury occurred on public property, contact the city, town, or village that controls the playground and ask for a tort injury claim form.
It’s imperative you move quickly. Unlike non-government personal injury claims with statutes of limitations of two years or more, government injury claims may have much shorter filing deadlines. In some cases they’re as short as 30 days. If you miss the deadline, the law may bar you from filing a claim.
If you purchased playground equipment for your home and your child was hurt because of a manufacturing design flaw or defect, you may also have a claim against the retailer who sold you the playground equipment.
If your claim is against a daycare center, apartment complex, restaurant, shopping mall, or other private entity, and the injuries are minor, like superficial cuts and bruises, sprains, etc., you can probably handle the claim yourself. However, if your child’s injuries are the more serious hard injuries, such as fractures, serious burns, broken teeth, head trauma, and the like, you need an experienced personal injury attorney. Most won’t charge for an initial office visit.
If your child’s accident occurred while playing in a neighbor’s yard, ask the homeowner for the name and contact information for his homeowners insurance. If your child’s medical or dental bills amount to $1,000 or less, you won’t have to prove negligence. The policy will likely pay out up to $1,000 under the medical payments, or med-pay, section of the policy. If your claim is for more than $1,000, you’ll have to use the policy’s personal liability section..
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