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10 Ways to Avoid Playground Lawsuits

9/24/2015

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FANS of Play has the ability to reduce playground injuries and liability. Remember, ignorance is no excuse for not following the law and the ADA is law!  Also, a playground does not have to have equipment with fall heights.  There are no Guidelines, Regulations, Accreditation, Standards or  Practices requiring this type of equipment.

 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 at the playground entrance and/or labels on the playground equipment. The CPSC recommends that your playground has a sign and/or equipment labels that state the hours of playground operation, the ages permitted, and a warning that “Adult supervision is recommended.” They also advise having elaborate language about the possibility of danger if kids wear hoodies & coats with drawstrings. In the eyes of the law, failure to provide information may be viewed as withholding information. Labels are the cheaper option; they're available online. Check your local sign shop for cheap custom-made signs. If you want to go the extra step, put up a sign and get labels.

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.

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FANS of Play Today to H.E.L..P (Health, Environment, Learning and Play) stewardship.

9/8/2015

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I, Dennis Smiddle wrote the following letter to the Partnership for a Healthier America on 11-12-2012 and to help advance our shared goals, I founded FANS of Play LLC. on September 7, 2014. This blog, FANS of Play Today, will attempt to provide and share more important H.E.L.P (Health, Environment, Learning and Play) for a healthier America.

War on Childhood Obesity. We as a nation need to declare “War on Childhood Obesity” and most experts agree that the two most effective ways of combating childhood obesity are:
​
 (1). Provide more age-appropriate physical fitness opportunities or exercise and,
 (2). Provide healthier diets.

Winning this “War on Childhood Obesity” can be accomplished for all of our nation’s children and the battlefields for this “War” should be on the playgrounds of America. We can fight this epidemic on Early Learning Facility Playgrounds, School Playgrounds, Park Playgrounds and other Community Playgrounds.  In this way, we can reach all of our children and provide opportunities to teach and build healthy habits and healthier lifestyles.

To most effectively win this “War” and have lasting positive life-style changes, we need to redesign or supplement our existing playgrounds with more beneficial opportunities such as, nature/fitness trails, gardens and outdoor classroom areas.  These are easy renovations and everyone can be involved in the building, including the children.

 Outdoor learning areas and gardens can be used to teach about the environment and provide hands-on experiences to connect children with nature.  Planting a garden helps children learn about the growth process, the environment, eating healthier, and appreciating a variety of healthy foods.  These early lessons can lead to life-long healthier lifestyles.   

Fitness trails can provide healthy exercise opportunities with age-appropriate fitness stations and with an accessible trail for walking, skipping, hopping, running or other physical activities.

These areas and play opportunities are considered “suggestive play” and they provide more physical, social, emotional, and cognitive health benefits than the traditional equipment-based or “prescriptive” playgrounds since the children are free to use their imaginations and creativity.

Positive results are expected since the playgrounds will be better designed to focus on the two most effective ways of combating obesity : (1) physical exercise and (2) healthier diets.  Playgrounds are accessible to most all children and families in schools, early learning facilities and parks. Schools will be encouraged to get children outdoors more since research indicates that physical activity improves classroom performance and more emphasis is being placed on environmental learning.

To promote these programs and ensure their success, information can be sent to schools and communities regarding the benefits which include physical, social, emotional, and cognitive benefits for children, along with cost-saving benefits in terms of health and safety, and the easy Do-it-Yourself plans or resources for creating these cost effective environments.

Contacting the Departments of Education, the Departments of Health, the National Recreation and Parks Association, NAEYC, and other child health and education advocates would help further this initiative.  Then of course, The Partnership for a Healthier America Challenge is a means to the End Childhood Obesity.

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    Author

    ​Dennis Smiddle is a retired Pennsylvania Child Care Health & Safety Inspector of 20 years. He also spent 6 years as a Certified Playground Safety Inspector, 6 years as a Pennsylvania Keystone Stars Playground Safety Trainer, and was a 15 year Recreation Therapist. Dennis is the owner and operator of FANS of Play

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