Playground Injury Litigation Tips
There are many elements to a playground case that go unnoticed and some techniques and sources that go unused. In this highly specialized field, it is critical to work with someone who is aware of the applicable rules, as well as knowing what does not apply. Some of these rules have been adopted into law in many states.
The American Society for Testing and Materials (ASTM) publishes various playground safety Standards, and you must buy them. The Consumer Product Safety Commission (CPSC) publishes playground safety Guidelines and they are available for free. If you have a case that is a “hybrid” playground, there may be multiple standards and guidelines that may apply. It is not always cut and dried. There are many states that have adopted these standards and guidelines, in full or in part, into law.
Surfacing is a critical issue in these cases. One major misconception in proving a playground case is that if you don’t have a photo of the playground showing the adequacies (or inadequacies as the case may be) just before the moment of impact, you are sunk. Not so fast. If you have a photo relatively soon afterwards, and / or the testimony is such that it was that level, then a site inspection months later may be adequate to prove the depth of the surfacing (mulch, sand, etc.) by using photogrammetry (comparing known sizes on site and actual depths measured to the old photos or testimony).
Get a list of sample questions from your expert to use as interrogatories, in depositions, or in trial. You would be surprised at what you can discover this way! This is one of the golden opportunities you have to utilize the wealth of knowledge from your expert. Ask critical questions of the opposing expert (“are you a CPSI?”; “have you ever manufactured, installed, designed playground equipment?”, etc.), the maintenance person (“how often do you inspect?”, “what tools do you use?”, etc.), the child or parents (“did you see a warning sign or label?”, “At exactly which point on the overhead ladder were you when you fell (which rung)?). Question the other players in the lawsuit as well.
Use old catalogs, literature, and specifications to your advantage, Plaintiff OR Defense! Cases have been won and lost based on documents uncovered from days gone by…
Scott Burton is a Certified Playground Safety Inspector and is also S.A.F.E. certified. He has instructed various playground/recreation safety courses to Child Care Licensing Bureaus, Parks & Recreation Depts., etc. He has been an instructor for the CPSI courses for NPSI.
Mr. Burton has been in this industry since 1981. He has designed, manufactured and installed thousands of different types of equipment and areas. He has audited 2,764 playground sites in and out of the USA. He has accepted exactly 405 cases as an expert witness (and turned down 371 cases, mostly for lack of merit).
Mr. Burton has been honored with the 2008 "Playground Safety Advocate of the Year" award by the N.P.P.S. As PRIOR owner of Florida's largest recreation equipment manufacturing company for over 11 years, his duties included planning, design, writing specifications, purchasing, manufacturing & installation supervision, surfacing specifications, and sales networking worldwide.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.For specific technical or legal advice on the information provided and related topics, please contact the author.