Playground Injury Claims, Accident Liability and Compensation

According to the Centers for Disease Control, each year more than 200,000 children ages 14 and younger require medical treatment for playground injuries. About 45 percent are serious injuries, including bone dislocations and fractures, internal injuries, strangulations, and eye and head trauma. The rest are soft tissue injuries including muscle sprains, bruising, minor cuts, and swelling.

In this section, we cover:

  • Common playground accidents
  • Liability for acts of negligence causing injuries
  • Gathering evidence to prove your child's injury claim
  • Dealing with insurance companies
  • The role of attorneys

Common Causes of Playground Accidents

Lack of supervision

Many daycare centers and elementary schools have on-premises playgrounds where children are free to have fun, burn off excess energy, and socialize with other children. Sometimes, children travel to off-premises playgrounds at public parks, fast food restaurants, and other venues dedicated to children's entertainment.

When parents leave their children in the custody of teachers and daycare center employees, they do it with an understanding their children will remain safe from undue harm and injury.

Daycare center employees can become distracted while caring for children. Because these employees have multiple children to supervise, it's common for them to take their eyes off one while tending to the needs of others. Sometimes, the distraction is less noble. Employees often engage in texting, playing phone video games, or speaking on cell phones.

Some playgrounds are age-appropriate, built to accommodate children of a certain age. When someone leaves a child to play on a playground designed for older and stronger children, it's more likely the child can get hurt.

Slip, trip and falls

Playgrounds are often minefields for accidents. Children can trip and fall over elevated rubber flooring, on sand that's too thick, protruding nails and large rocks, and over trash and debris left in the way. Children can also slip and fall in sprinkler and rain water left to pool. Other falls occur when children catch their shoes in drains and potholes.

Child-on-child injuries

Some children are overly aggressive. Even at young ages, they can become territorial while on playgrounds. There are reported cases of children pushing other children off slides 10 feet off the ground. Biting and scratching are also common in some groups of children.

Dog bites

Some parents bring their dogs along to public playgrounds. The frenzied energy of children playing and laughing can cause some dogs to react inappropriately and aggressively, especially when they sense danger to their companion child. When not properly leashed, a dog can quickly overwhelm and knock a child down, while nipping or biting him in the face and torso.

Playground disrepair and poor maintenance

Municipalities and private entities must maintain playgrounds on their property. Playground equipment ages and can become fragile over time. Many playgrounds are outside and exposed to the elements. Wind, rain, ice, and the hot sun can cause plastic components to crack and splinter. Wood guardrails surrounding the playground can rot away leaving jagged edges and protruding nails.

The Law and Your Child's Injuries

The law says owners of property with playgrounds and their management staff have a legal duty of care (obligation) to make the playgrounds and adjacent areas safe for children. This means they must do everything reasonably possible to ensure the safety and wellbeing of children invited to use the playground. This includes repairing or eliminating dangerous conditions.

The duty of care extends to mall and restaurant owners, daycare centers, municipalities, parents, daycare workers and teachers, animal owners, and others.

When a playground's property owner or manager fails to do everything reasonably possible to make the playground safe and a child is hurt, the owner is said to have breached (violated) his or her duty of care. The nature of the breach is negligence. Negligence makes the responsible party liable for the injured child's damages.

Damages include your child's medical bills, and out-of-pocket expenses for medications, bandages, medical building parking lot fees, etc. Lost wages incurred while caring for your child at home are also included. Your child's pain and suffering should factor into the total, but only in the rarest cases can a parent receive compensation for his or her own pain and suffering. This only occurs when traumatic life-threatening injuries and death to children occur in a parent's presence.

You won't find a list online or a formal document setting out each event or circumstance that constitutes negligence. Instead, the courts evaluate each event leading to a child's injury separately and on its own merits.

Proving a Playground Injury Claim - Evidence

If your child is hurt in a playground accident, and you believe his or her injuries resulted from negligence, you need evidence. The stronger and more credible your evidence, the greater the likelihood of settling your child's injury claim for a substantial amount.

What follows is a list of effective evidence you can gather to support your child's claim. While the circumstances of each incident are different, the evidence required to succeed in any personal injury claim remains universal.

Photographs and videos

Photographs and videos are often invaluable. They can graphically illustrate the dangerous condition that caused your child's injury. Because the playground property owner or manager may rush to repair the dangerous condition, it's vital you move quickly to photograph and video the scene. Use your cell phone camera if you don't have a digital camera with you at the time.

For example, if your child was hurt when he tripped and fell over an elevated piece of playground flooring, photograph and video the flooring at ground level and at a wide angle. Take multiple photos to capture the elevated flooring in the context of the playground itself. You want to leave no doubt of the existence and danger the elevated flooring posed. Before you begin, make sure the date and time stamp function on your digital camera or cell phone is engaged.

Witness statements

Witnesses are quite helpful, especially independent ones like Good Samaritans. Not only can they support the cause of your child's injury, but they can also affirm the pain and suffering your child experienced immediately after the injury.

For example, imagine your child had injuries when he fell from a slide on a daycare center playground. You have reason to believe the fall wouldn't have happened if there was adequate supervision. Look for other daycare center workers, parents, and anyone else who was present at the time your child fell and get their statements. Although you may find daycare center employees reticent, try anyway.

Contact other parents whose children attend the daycare center to see whether they were aware of the supervision problems, and if so, whether they complained to the owners or management. Don't be concerned about the formality of the statement. Just ask the witnesses to write down what they know, especially as it directly relates to the inadequacy of supervision. Ask them to sign and date their statements at the bottom of each page.

Police and fire rescue reports

If your child's injuries are serious enough to require paramedics, it's likely the police will also respond. Make clear exactly what caused your child's injury. Point out any unsafe conditions that caused the injuries and direct the police to any witnesses. Ask the paramedics for a copy of their Patient Incident Report (or whatever they call it). You can pick up a copy of the police report and the paramedics' incident report within four or five days after the injury for a nominal fee.

If a child bites your child, and the bite is serious enough to require stitches, the police report will contain the name and contact information of the child's parents, and if applicable, the daycare center owner's name. The police report will also contain the responding officer's opinion about who was responsible for the injury.

Medical bills and other damages

Personal injury claims are only valid when there are documented injuries and damages. Claims based on what could have happened, or out of anger at perceived wrongdoings of a playground property owner or staff, will fail. Make copies of your child's medical or dental bills, along with his medical or dental records.

Make sure you get the doctor's written diagnosis and prognosis for your child's injury. It's extremely important the diagnosis links the injury to the playground danger or negligent act exclusively, and states your child didn't contribute to their injury. Although it's rare a child is responsible for contributing to his own injuries, it doesn't hurt to have the doctor confirm it.

For example, if your child was on a playground at a park and a dog belonging to another parent bit him, it's important for the doctor's diagnosis to directly link the injury to the bite. Although the doctor will probably state in her diagnosis that the dog bite caused the injury, make sure it does. Also confirm the doctor describes your child's future required treatment and recovery time.

Dealing With the Insurance Company

Depending on the nature and severity of your child's injuries, there may come a time when you have to deal with the responsible party's insurance company. It's likely the company's claims adjuster will ask you to give a recorded statement concerning the events surrounding your child's injuries. Although you aren't legally obligated to give such a statement, not doing it may minimally delay processing your child's claim.

When giving your statement, do not editorialize, offer opinions, or pass judgment. The adjuster isn't concerned with your anger or frustration. Instead, she wants to hear the facts so she can determine the extent of her insured's liability.

If your child was hurt on a government-owned playground, you have to go through a form of tort claim. You must file government injury claims promptly, sometimes in as few as 30 days. This differs from a private claim since the statute of limitations for most states is two years or more.

If your child was hurt on a playground in a neighbor's yard, you can possibly file the injury claim through your neighbor's homeowners insurance policy. Most homeowners policies pay claims up to $1,000 or so (depending on the policy limits) without having to go through the adversarial process of proving liability.

This portion of the policy, known as Medical Payments or MedPay, is restricted to medical or dental bills and does not cover pain and suffering. If your child's damages exceed $1,000, you have to proceed under the personal liability section of the homeowners policy.

When to Hire an Attorney

If your child's injuries are relatively minor, such as sprains, bruising, small cuts, or scrapes, you can probably handle the claim yourself. However, if your child's injuries are the more serious kind, such as fractures, broken teeth, deep gashes, head trauma, or other serious injury, you need a personal injury attorney. There's just too much at stake in a serious injury claim.

Attorneys can effectively deal with government entities, opposing insurance adjusters, and playground property owners. They can file lawsuits when necessary, subpoena records, take depositions (recorded, sworn statements), and conduct other pretrial discovery (getting all the other side's documents). This gives them a much better chance of settling your claim for a much higher net amount than you could on your own.

Case Study:

Private School Playground Accident
This case example deals with a child being injured on a private school's playground. There are two theories of liability discussed: negligence on the part of the school, and product liability on the part of the equipment manufacturer.

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