If young children are in your house, “Can I go to the park?” might be the most frequently-asked summertime question. Other candidates include “Can I play with your phone?”, “What’s for dinner?”, and “I’m bored.” Well, that last phrase isn’t technically a question.

“The park” is normally a standalone playground or school playground a few blocks away. So, most caregivers readily grant these requests. Playgrounds, especially older playgrounds, often pose serious safety risks for youngsters, as outlined below.

Generally, the playground owner is legally responsible for damages in these cases. These damages usually include compensation for economic losses, such as medical bills, and noneconomic losses, such as pain and suffering.

Types of Injuries

Most people have seen horror stories about playground injuries. But they are surprised to learn how common these incidents are. Playground injuries are one of the leading causes of Emergency Room visits for children under 10.

• Head injury: Falls from a height, such as off the monkey bars, occur frequently. To a young person, falling a few feet is like an adult falling a few stories. Serious injuries are especially common if the play equipment is built over a hard surface, like grass or concrete.
• Strangulation: Clothing drawstrings often get caught in play equipment. If the brain is oxygen-deprived for more than about five minutes, the victim normally sustains a permanent brain injury.
• Burns: Metal play equipment is not the only equipment subject to extreme heat. Plastic play equipment gets just as hot. Serious burns often require treatment at specialized burn centers. Afterwards, they often leave permanent scars.

For the most part, owners can easily prevent these injuries. Burns are a good example. Cooling chemicals are cheap, nontoxic, and easy to apply. Yet many owners refuse to take even simple precautions like this one.

Establishing Liability

To determine the extent of legal responsibility, Kentucky courts use a classification system based on common law principles.

Many playground accident victims are invitees. These individuals have the owner’s permission to be at the playground, and their presence benefits the owner. Hotel and apartment complex playgrounds are good examples. The children do not pay rent, but their caregivers do.

Since the relationship is so close, the owner’s duty is extremely high. Generally, owners have a duty of reasonable care in these situations. They must ensure the premises are safe, and frequently inspect them to make sure they stay that way.

A few of these victims are licensees. The victim has permission to be on the land, but there is no benefit. When schools are in session for summer school, their playgrounds might be open to everyone, but the school does not benefit from vacation visitors.

Owners have a duty to warn about latent (hidden) defects in these situations. Let’s return to the burn injury example. If there is no warning sign about hot equipment, the playground owner might be responsible for damages.

Many other playground accident victims are trespassers. If there is no permission and no benefit, there is generally no duty. When schools are closed, their playgrounds are closed as well, even if they are not under lock and key.

The attractive nuisance doctrine is an exception to the trespasser rule. This exception applies if children were likely to play in a certain place and the risk of injury was significant.

In addition to legal duty, victim/plaintiffs must establish knowledge of the hazard. Frequently, victim/plaintiffs use the time-notice rule to establish constructive knowledge (should have known).

This principle comes from 1911’s Anjou v. Boston Elevated Railway Company. Ms Anjou slipped and fell on a banana peel which, according to witnesses, was black and gritty. The railroad company denied knowledge of the hazard.

The court noted the peel’s condition and found for Ms. Anjou. Since the peel was black and gritty, it had probably been on the floor for some time, and a worker should have picked it up. If the peel had been fresh and yellow, like it just fell, constructive knowledge would not attach.

Assumption of the Risk

This defense is very common in premises liability claims, such as falls and dog bites. Owners are not legally responsible for injuries if the victim:

• Voluntarily assumed
• A known risk.

Most children voluntarily go to playgrounds. So, this first element is usually not much of an issue.

The second element, however, is different. Insurance companies must prove the victim saw the warning sign, could read the sign, and could understand what it meant. 

Many signs are not clearly posted. Others lack pictures or other graphics. Additionally, young children have limited reading comprehension skills. The same thing applies to LEP (Limited English Proficiency) victims. 

Owners must keep playgrounds safe for everyone. For a free consultation with an experienced personal injury lawyer in Lexington, contact the Goode Law Office, PLLC. Attorneys can connect victims with doctors, even if they have no money or insurance.