By Paul R. Kiesel

Approximately 200,000 playground equipment-related accidents per year result in children
being hospitalized.1 Each year, 350 children under five drown in swimming pools,2 and approximately 2,600 children under five are treated in hospitals for near- drowning incidents.3 The chances are strong that you will have a client who has fallen off a jungle gym in a playground or has been involved in an accident in a pool.

In a playground or pool accident case, in addition to pleading negligence causes of action, counsel should explore the possibility of maintaining a product liability cause of action. Including a product liability theory provides the advantage of a potential strict liability theory and of finding additional potential defendants.

Facts that may support product liability theories of recovery in playground and swimming pool accident cases are perhaps less obvious, yet a number of potential facts should be explored in any such case. With a playground accident, counsel should consider such things as: the nature of the ground cover, the spacing between equipment, the height of equipment and the presence, absence or adequacy of safety barriers and guardrails. In swimming pool accident cases, special attention should be paid to the existence and nature of pool fencing, gates and safety alarm devices.

Builders of swimming pools, as well as makers of playground equipment, have been found liable in strict product liability cases. See Duggan v. Hallmark Pool Mfg. Co., Inc. (1986) 398 N.W.2d 175; Gellenbeck v. Sears, Roebuck & Co. (1975) 59 Mich. App. 339, 229 NW2d 443. Contractors who install playground equipment may be liable under strict products liability. La Jolla Village Homeowners’ Assn. v. Superior Court (1989) 212 Cal.App.3d 1131. Suits against playground equipment and swimming pool builders have been successfully maintained based on implied warranty of merchantability, implied warranty of fitness for a particular purpose, defective manufacture, defective design and insufficient warnings.

However it can be challenging to identify the facts that give rise to a product liability cause of action in playground and swimming pool accident cases. There is no challenge if the accident is the result of a simple break of a chain link in a swing. However when a child is injured after falling from a jungle gym, the natural focus is often on the level of supervision and the child’s conduct, rather than on more latent aspects of the playground or swimming pool.

A.Hidden Dangers on Playgrounds

Playground designers recognize several of children’s basic needs — to explore, experience motion and extend themselves — which are satisfied on playgrounds.4 Playgrounds and playground equipment should be designed so as to provide a safe environment for children to fulfill these needs. When playgrounds and playground equipment fail to provide a safeenvironment, they fail in their essential purpose, and this failure may give rise to product liability. The following is a list of a few areas counsel should explore.

1. Ground cover
Most playground accidents involve children falling from playground equipment onto the ground beneath.5 Most playgrounds today utilize mulch, bark, sand or other organic materials as ground cover beneath playground equipment. These materials can be highly effective in preventing injuries or lessening their severity. However these materials can only be effective in preventing injuries if the ground cover is thick enough and is maintained adequately.

For these loose materials to effectively absorb shock, they must be uncompressed and sufficiently deep, given the height of the equipment under which they lay. For instance, six inches of mulch is necessary when the height of the equipment from which a child might fall is six feet tall.6 Whether the loose materials used as ground cover are sufficiently deep is a fertile area of product liability because many vendors who supply these material fail to provide sufficient information on theshock-absorbing performance of the materials.

Even if loose materials are initially installed to a sufficient depth, use and lack of proper maintenance can destroy the shock-absorbing performance of the materials. Loose materials such as sand, mulch, bark and wood chips, the most common loose ground cover materials,7 require daily attention, raking, sifting and cleaning.8 As one noted expert in the field of playground construction and maintenance has observed, less than 1% of playgrounds in America have paid or volunteer personnel to do this daily chore.9

2.Spacing of Equipment

Approximately eight percent of playground injuries involve a child impacting with a stationary object, such as a child running into a playground structure.10 In such instances, the question must be asked whether the playground equipment was placed in such a manner as to allow children to freely and naturally move around the equipment. Equipment placed too close together, or placed in such a way that the natural flow of movement between pieces of equipment is impeded may give rise to liability.

3.Safety Barriers and Guardrails

Other areas of playground design may also cause accidents include failing to zone areas of a playground for different age groups and failing to install adequate guardrails and safety barriers.
Determining whether any of these causes applies in a specific case requires counsel, in conjunction with a playground design expert, to develop a through understanding of the mechanics of the accident, as well as the patterns of use of the particular playground and the specific equipment involved.

4. Practical Concerns To Maintenance of Product Liability Theory For Playground
Accidents.

Playground equipment at public schools and parks is often quite old,11 raising two fundamental concerns and potential barriers to pursuing of product liability cause of action. First, depending upon who the defendant is, the statute of limitations for the cause of action may have run long ago. A second, and related concern, is that evidence can often be hard to come by linking a particular manufacturer to the piece of equipment. Even if evidence can be found, proving that information or warnings were inadequate can be a challenge.

5.Negligent Supervision

In any playground or swimming pool accident case, counsel should explore potential facts giving rise to a negligent supervision cause of action. One important consideration in developing a theory of negligent supervision is to recognize the need for additional supervision that may be created by poor design of a playground or defective equipment. If the playground is poorly designed in whole or in certain areas, those supervising in these areas would be required to be more attentive.
Indirect evidence of a defective playground might be found when there are an excessive number of rules that children must obey.

6.Comparative Fault

Recognition of this interplay between defective playground design and the promulgation of rules can also help defend against claims of comparative fault on the child for failing to observe such rules. For instance, rules prohibiting children from running because equipment is placed too closely together is a recipe for disaster.

B.SWIMMING POOL ACCIDENTS

In California drowning is the leading cause of accidental death in and around the home for children under five years old.12 Nearly half of all child drowning victims were last seen in the house before the pool accident occurred, and most were being supervised by one or both parents.13 State and local swimming pool safety laws have been enacted in response to this danger. These laws put builders on notice of available safety measures which need to considered when building swimming pools. Under current safety laws and with the safety measures available, if a young child was able to access a pool area without being physically let in by an adult, counsel should explore the possibility of a product liability cause of action or a cause of action for negligence per se for violation of statute.

State and local safety laws that apply to swimming pools located on single family residence properties are generally uniform in their requirements that swimming pools be enclosed by fences with self-latching and self-closing gates.14 They are also generally uniform in their height, maximum ground clearance and maximum gap requirements.

While single family residence swimming pool safety laws do provide a useful tool in maintaininga product liability action, counsel should be aware of the inadequacies and conflicts in these laws. Because the state laws, for the most part, allow local laws to preempt state law, there is significant
variation in swimming pool safety laws, and the local ordinances must be considered.
Ninety-eight percent of swimming pool accidents occur in pools owned by the victim’s family
or friends.15 Fewer than two percent of pool accident victims either did not live or belong on the property where the pool was located. The state and some local swimming pool safety laws are contradictory and vague in their provisions, preventing access by young children to swimming pools at their homes or the homes of their family and friends. Some local laws appear more geared toward protecting against accidents by trespassers.

1.Required Fences and Enclosures

Health and Safety Code, section 115922(a) requires that “[t]he pool shall be isolated from access to a home by an enclosure that meets the requirements of Section 115923.” Section 115923 describes the physical characteristics an enclosure must have, but does not expressly specify wherethe enclosure may be located in reference to the residence or the rest of the property. However, the language that ”the pool must be isolated from access to a home by an enclosure” appears to require
that the enclosure be distinct from the walls of the residence, thereby carving out and preventing access to the swimming pool from any other portion of a residential property.

While section 115922(a) appears to require an enclosure separating the pool area from a residence, section 115922(c) and (d) contradict this requirement by dictating that exit alarms and self-latching and self-closing doors must be installed on doors providing direct access to a pool, implying that the walls of the house may form part of the enclosure.
Los Angeles City Ordinance section 96.6109, instead of being internally contradictory, is
vague. Section 96.6109 requires that every swimming pool “shall be enclosed by a fence...” Use ofthe term “fence,” and the failure to incorporate the term “wall,” implies that the walls of a residence may not form part of the enclosure required by this section. Further, the safety considerations intended to be satisfied by this ordinance require that the provision be read as requiring that the fence enclosing a pool must separate it from all other parts of a residential property. To the extent the City provision can be read as requiring a fence distinct from the walls of the residence, the City ordinance must prevail over the state statute. See Health & Safety Code Section 115925(c).

In contrast to the state and City provisions, the Los Angeles County Ordinances on point are clear on this issue. However, these ordinances also offer the least protection. Section 11.50.010 requires swimming pool enclosures to “surround such body of water, lot or premises.” Section 11.50.040 expressly allows residence walls to form part of the enclosure. Therefore, if the lot on which a swimming pool is located has a fence or wall around the lot perimeter, this fence or wall would appear to satisfy the county ordinance. While this ordinance prevents access by the two percent of swimming pool accident victims who do not belong on a property, it clearly does not provide adequate protection against accidents involving children who do belong on the premises.

2.What is A Gate?

Closely related to issue of what may be an enclosure and what it may enclose, is the issue of whether a residence door providing direct access to a swimming pool may be a “gate” to such an enclosure. On this issue the Los Angeles County ordinances on point appear to allow residence doors to be “gates.” The Los Angeles City ordinance’s silence on the issue implies residence doors cannot be gates. While the state Health & Safety Code section on point is susceptible to multiple interpretations.

Each of the three provisions requires that a gate opening to a swimming pool be self-latching and self-closing. The Los Angeles County scheme expressly allows doors to be gates. See Los
Angeles County Ordinance Section 11.50.100. Health & Safety Code section 115922(c) and (d)
allows residence doors to provide direct access to a swimming pool, provided the doors are
equipped with exit alarms and a self-closing self-latching device with a release mechanism placed no lower than 54 inches from the ground.

The Los Angeles City ordinance does not specify whether a residence door can be a gate, nor does it offer any language that implies the same. Rather, the failure to describe a permissible fence as including a wall or other structure, as the County ordinance does, argues for the conclusion that in Los Angeles city, a rear door to a residence may not provide direct access to a swimming pool.

The lesson that should be learned from these contradictory and conflicting provisions is to
closely look at the facts of the case in light of the applicable local ordinances. An enclosure or gate that may be permitted in one city may not be permitted in another. Further, some jurisdictions may require additional safety measures than those discussed.

CONCLUSION

The discussion of factual theories in this paper that may support a product liability cause of action is intended to provide a sampling of some of the theories that may be available. Counsel should analyze the facts of a playground or swimming pool accident case very closely for the applicability of a product liability cause of action.

1 United States Consumer Product Safety Commission, Special Study: Injuries and Deaths
Associated With Children’s Playground Equipment, April 2001. Page 1
2 United States Consumer Product Safety Commission, An Evaluation of Swimming Pool
Alarms, May 2000. Page 1
3 Id.
4 Hogan, Paul, The Nuts And Bolts Of Playground Construction: A Trilogy Of Play Volume 3:
How, (1982) Page 242.
5United States Consumer Product Safety Commission, Handbook For Public Playground
Safety, Pub. No. 325. Pages 11 and 13.
6Id. at Page 5, Table 1.
7United States Consumer Product Safety Commission, Special Study: Injuries And Deaths
Associated With Children’s Playground Equipment, April 2001. Page 14
8Hogan, Paul, The Nuts And Bolts Of Playground Construction: A Trilogy Of Play Volume 3:
How, (1982) Page 242
9Id.
10United States Consumer Product Safety Commission, Special Study: Injuries And Deaths
Associated With Children’s Playground Equipment, April 2001. At Page 12.
11 Fifty-six percent of public playground equipment for which an age for the equipment is
known are between five and ten years old. Twenty-four percent of such equipment is 20 years old
or older. Special Study: Injuries And Deaths Associated With Children’s Playground Equipment,
infra, at Page 10.
12 United States Consumer Product Safety Commission, Safety Barrier Guidelines For Home
Pools, Pub No. 362, Page 1.
13 Id.
14 California Health & Safety Code Sections 115921, 115922 and 115923, Los Angeles County
Ordinance Section 11.50.010 and Los Angeles City Ordinance Section 91.6109. These county and
city ordinance are cited as samples, similar ordinances are in effect in most cities and counties.
15 United States Consumer Product Safety Commission, Safety Barrier Guidelines For Home
Pools, Page 1, Pub. No. 362.