My granddaughter was injured on playground monkey bars. She fell off the bars onto asphalt. She broke her leg. Does she have a claim?
Your granddaughter might have a claim. There are two possible theories of recovery. One claim could be for the hard surface under the monkey bars. A second theory of recovery is lack of supervision.
Negligent Supervision
I do not believe the lack of supervision claim would be successful. I am assuming this incident happened when your granddaughter was at (possibly nursery?) school. As explained in a prior post on negligent supervision, the school is acting in loco parentis. That means the school is only held to the standard of acting as a reasonable parent of their children. The school is not an absolute guarantor of student safety.
Negligent Playground Construction
The second theory of recovery is that the underlying asphalt surface was too hard for children playing on monkey bars. However, this theory would have to supported by evidence.
For example, there are certain standards that are proposed by the Consumer Product Safety Commission about surfaces for all playgrounds. However, violation of these standards do not alone prove any negligence. Swan v Brookhaven, 32 AD3d 1012, 821 NYS2d 265 (2d Dept 2006). But, an expert familiar with playground safety, might rely on those same Consumer Product Safety Commission standards, in part, to opine that the asphalt surface was too hard for children playing on monkey bars. Kosicki v Spring Garden Ass’n, Inc., 42 AD3d 909, 839 NYS2d 660 (4th Dept 2007).
The evidence in this type of case is not all that different than the proof suggested in two prior posts. One post dealt with the standard of care for doctors in a medical malpractice case. A second post discussed liability for the negligent repairs of an auto mechanic. The principle is customary safety procedures in a trade or business are admissible to prove the reasonableness of a party’s conduct. Trimarco v Klein, 56 NY2d 98, 451 NYS2d 52, 486 NE2d 502 (1982). A deviation from the standard of care customary in the industry is evidence of negligence.
Suppose an expert in playground safety would be willing to state that asphalt is a deviation from acceptable standards of care for the playground construction industry. Then you could make a case that the school was negligent.
By James Santner, Esq.
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