Soft Contained Play Equipment, The New Frontier for Playground Accidents!
TASA ID: 658
Playground injuries have been cause for litigation for decades. Park playground equipment and elementary school playground equipment share the load for these injuries along with home playground equipment. In addition, soft contained play equipment is not new to the consumer. The U. S. Consumer Product Safety Commission has defined this type of equipment: "Soft Contained Play Equipment (SCPE) is a new type of playground characterized by plastic tubes for children to crawl through, ball pools, climbing nets, slides and padded floor." U.S. Consumer Product Safety Commission. Soft Contained Play Equipment Safety Review (5/02). Executive Summary, p. 20f8.
However, the American Society for Testing & Materials (ASTM) International has defined this type equipment as follows: "3.1.29 soft contained play, equipment (SCP E), n-a play structure made up of one or more components where the user enters a fully enclosed play environment that utilizes pliable material(s) for example, plastic, netting, or fabric)." p.454. [ASTM, F 1918-10, Volume 15.11]. It should be mentioned this type of equipment is geared towards children two [2] through twelve [12] years of age. Precisely, the standard would be applicable to the 5th percentile two year old through the 95thpercentile 5 year old. [ASTM, F 1918-10, Volume 15.11, p. 453].
Since the equipment is now defined, exactly what does this equipment look like? Your typical fast food restaurants have this type of equipment in various forms. For example, Burger King, McDonald's, and Chuck E. Cheese etc. have soft contained play equipment. However, we must recognize the name is a misnomer! Many times there is nothing "soft" regarding soft play equipment. There are hard shell tubes. There are unyielding slides. There are uprights with padding; however, a solid blow to these verticals will demonstrate their lack of true attenuation properties.
One of the most serious incidents I encountered as an expert witness involved a fifty-nine [59] year old grandfather on an outing at a family entertainment center. The contained system had tunnels, platforms, a slide, and a ball pit. The grandfather entered the soft contained system and was monitoring his extended family. On the second run down the tubular purple slide, he amputated his ring finger at the second knuckle! The family outing turned into a tragedy within a very short amount of time. The entire encounter was fully captured on videotape by a family member. The videotape goes blank on the second run.
The expectation of a family going to an entertainment center to play some skee ball, play within the soft contained play equipment system, and eat some pizza ended catastrophically. Why did this occur? Within the internal tubular slide tunnel, a carriage bolt head was not fully tightened against the wall. [Carriage bolts are round-headed bolts with threads]. The father had his hands extended and let his hands slide down the inner walls. Unfortunately, his wedding band got caught between the inner wall and the raised carriage bolt head. Thus, he amputated his finger. Within the playground industry, this issue of the spacing between the sidewall and the inner portion under the carriage bolt is entitled a "hook."
My inspection revealed in one or two areas this raised phenomenon of the carriage bolt heads. The investigation did occur after the fact; however, maintenance was still not be performed appropriately. The inspection was a laborious job since to examine the inner wall required me to actually go into the system. When I attempted to do any type of work within the tube, I slid down the slide, since the slope was so severe. I had to forcibly try to separate my legs and apply pressure on the inner walls to try to prevent this from happening. I was able to get some excellent photographs. The case eventually settled. This incident demonstrates the continual need for maintenance for this type of equipment. Certainly, regular continual maintenance is paramount with all play equipment.
However, within the food industry there are some other issues as well. I am reminded of a potential case I had a number of years ago. A state trooper was on vacation with his family. He stopped at a fast food restaurant [nameless to protect the guilty!], and he decided to use the soft contained play equipment. Unfortunately, the equipment was previously soiled by urine and feces by former users of the equipment. He and his children wound up soiling their clothes. No physical damages were presented in this scenario. Obviously, we can say universal precautions were violated. However, to file a lawsuit, in my opinion, would be difficult with the fact pattern within the case. One would need to prove an infection developed as a direct result of the contamination from the soiled slide. This would be out of my realm as a recreation consultant.
The plaintiff attorney or defendant attorney securing their first case within this domain needs to do some homework first prior to jumping into the matter. Certainly, intake notes establishing a fact pattern from the client's perspective need to be accomplished. If it is a plaintiff- driven case, the facts of the injury need to be determined with the potential client, through the use of "how," " when," "why," "who," and "what" questions. Determining the actual location may require the services of a private investigator or expert witness.
Ethically, I would oppose any clandestine or undercover inspection of the facility from the standpoint of the plaintiff's expert or investigator. Since this is a business establishment, one could argue that the public has a right to be there on the premises. However, we must remember the premises are not in a true sense public property, such as a park. Therefore, the manager can rightfully request anyone to leave at any time if he/she feels someone's rights are being compromised. The best policy would be to make the necessary arrangements to set-up an inspection when all parties can be there. One does not want to be accused of being guilty of the "fruit of the poisonous tree" doctrine! If it is a defendant matter and a claim has been made, the manager should produce any maintenance logs which may prove helpful in defending the suit for the defendant's expert and his/her attorney.
The U. S. Consumer Product Safety Commission developed a checklist for soft contained play equipment. Some of the areas to check are: safety netting, flooring inside the system, and cleanliness inside the system. [Retrieved 3/21/2013, from www.cpsc.gov/PageFiles.100367/scpe.PDF , "Soft Contained Play Equipment Safety Checklist, 8/09/2012]. I would strongly suggest checking frayed padding on the upright pipes, protruding fasteners, signage for age restrictions, signage pertaining to height restrictions, signage pertaining to emergency evacuation routes, and locked non-use areas for maintenance. The access door to those areas on the outside of the soft contained play equipment should always be padlocked when children are playing. The only time it should be unlocked would be off-hours when maintenance is being performed and no children are on site.
The question can be raised as to what would be the best time to inspect a soft contained play equipment system at an entertainment center or fast food establishment. I would suggest mornings would be the best. If the fast food restaurant serves breakfast, and school is in session, it might be best to inspect the facility from 9:00 a. m. to anywhere up until noon. Arrangements would need to be made with the appropriate attorneys to make this convenient for all concerned. If the entertainment center does not serve breakfast, any time in the morning may be appropriate for an inspection. The area would need to be secured to prevent patrons from entering the play area.
Certainly, falls from public playground apparatus tend to be the leading cause of injury year after year. In any given year, approximately seventy percent of injuries on playgrounds can be attributed to falls. However, with soft contained play equipment systems, this fact is somewhat mitigated due to the enclosed nature of the equipment. Children can fall; however the landing areas should be within use zones. Also, the enclosures with netting will not permit climbing on the outside of the structure due to the way the mesh is manufactured.
One case does come to mind in which a child was actually using the mesh netting to climb on the outside of the equipment. She fell onto carpeting which was not appropriate for attenuation purposes and suffered an injury. Concrete was under the carpeting, and the mil thickness was not an appropriate surface for falls. Therefore, in addition to staying in step with the ASTM standard for soft contained play equipment, one needs to follow the standard for attenuation. The ASTM standard which addresses this issue is F 1292. The appropriate designated year will follow the specification number. This standard is very technical in determining how the protective surface within these play centers will absorb shock from falls.
We must bear in mind that all indoor playground equipment is not categorized as "soft contained play equipment." There can be regular outdoor equipment that has been placed indoors and does not conform to the definition of "soft contained play equipment." I did have a case involving such a scenario. Basically, a four-year-old girl was running inside a glassed enclosure and tripped and fell into a park bench placed on the perimeter. She suffered a severe laceration to the bony part of her nose. The elements of supervision and the age-appropriateness of the equipment for this child were issues in the matter. It was interesting when I was inspecting the site, a paralegal representing the defendant side was present. I had to request that she find employee[s] to have a youngster who was playing alone removed from the play area.. It was alleged in the case the mother was not supervising her child. It was ironic that one of their own workers permitted a child to play in the room totally unsupervised!
I have some final thoughts to share regarding this equipment. Playground equipment should never be used as a substitute for babysitting! All too often parents either send their children to or drop them off at a park. Soft contained play equipment has the allure for parents of being an easy caregiver with no supervision required on their part. Recently, a local news telecast from Florida reported a child was missing and wasn't seen overnight after the parent dropped him off at a park. With the threat of child molestation, gun violence, and escalating crime, parents need to be accountable for their children. In one of the cases I described above, the other factor prior to the fall from the mesh webbing was that the parent left a teenager in charge of supervision while the mother went to a super store to do some shopping. The youngster climbed on the outside of the netting, ultimately falling and injuring herself. Here one needs to question the competency of a teenager being left in charge. One also needs to question the role of the proprietor of the restaurant. What role does the management play in instructing, supervising and curtailing unsafe behaviors?
Within the fast food industry, it has been shown that soft contained play equipment systems do generate revenue for the restaurant. This is a given. The old line, "Show me the money," which Rod Tidwell blurts out over the telephone to his agent, Jerry Maguire, applies here. Soft contained play equipment is the hook to get patrons into the restaurant. Sales will go up when this equipment is present. However, I noted recently that a spaceship-themed play area at a fast food restaurant was not replaced. Will the trend be that restaurants choose not to replace their play areas in light of the looming threat of litigation? Food for thought ... pardon the pun!
References:
American Society for Testing and Materials International, [January 2011]. F 1918-10, Standard safety performance specification for soft contained play equipment. West Conshohocken, PA.: ASTM.
American Society for Testing and Materials International, [January 2010]. F 1292-09, Standard specification for impact attenuation of surfacing materials within the use zone of playground equipment. West Conshohocken, PA.: ASTM.
[Retrieved 3/21/2013, from www.cpsc.gov/PageFiles.100367/scpe.PDF , "Soft Contained Play Equipment Safety Checklist, 8/09/2012].
U.S. Consumer Product Safety Commission. Soft Contained Play Equipment Safety Review (5/02). Executive Summary, p. 2 of 8.
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