Law of the Jungle and Liability Playground Safety and Liability

Law of the Jungle and Liability

 According to a study released in January of this year by the Kaiser Family  Foundation, kids today are plugged in. Aside from the time they spend in class  at school and asleep in bed, children between the ages of eight and 18 spend  more than 7 and a half hours a day interacting with smart phones, computers, television, or other electronic  gadgets.  

 In such a wired culture, playgrounds may seem like a quaint anachronism. After  all, who wants to mess around with swings and slides when Call of Duty IV just  came out for the Xbox 360, or when there are Facebook status updates and  Twitter feeds to maintain?  

 But while the playground isn't perhaps the all-important backdrop it used to be  in kids' lives, the importance of active, outdoor play in childhood social  development and overall physical health remains—and a safe, modern, well-kept playground can be a terrific amenity for HOAs.  Play equipment today is very different from what most of us grew up with—it's safer, for one, with more engaging, interactive features and fewer  sharp-edged, white-hot metal slides—but as with any amenity, maintaining a playground also means accepting certain  risks and responsibilities.  

 Tetherball is So... 1950

 The state of New Jersey defines a playground as "an improved area not intended  for use as an athletic playing field or athletic court designed, equipped and  set aside for play of six or more children, which is and shall include any play  equipment, surfacing, fencing, signs, internal pathways, internal land forms,  vegetation and internal structures."  

 Play areas being a sense of community to an association. In addition to  providing a space for kids to exercise and interact with each other, they serve  as a place where parents and caregivers can meet and socialize while the kids  play. A well-designed, well-maintained play area is an amenity that boosts  value in both concrete and intangible ways.  

 And according to industry pros, it's important to realize that play equipment  has come a very long way since the dark days of asphalt and rusty swing-sets.  Every year, the playground industry introduces new and updated products to the  market that allow children to twist and turn through tunnels, climb rock walls,  make their way over shaky bridges, push buttons, pull levers, and much more.  Today's equipment is inspired more by activities like rock climbing and  skateboarding than the old standbys like tag and hopscotch.  

 According to Kevin Cook, director of sales and marketing with Playworld Systems  in Lewisburg, Pennsylvania, associations with enough acreage and funding can  even create full parks. "This includes skate parks, rock climbing areas,  climbing boulders, life trails for everyone that augments the walking  experience," he says. "You can create a play area for all ages, everyone and  their interests." And play areas can be customized to reflect just about any  theme or fantasy an association can dream up. "Let's say your association name  is 'Mallard Point,'" Cook continues. "We can create custom graphics—even a pond scene—and customize the entire structure to your theme."  

 Indeed, says Cook, what type of play area your HOA has is really only limited to  your imagination—and your budget.  

 Safety First and Foremost

 Before the first slide is slid or the first swing is swung however, there's a  lot of planning to do, much of which revolves around keeping the kids using  your play area as safe as possible. Playground-related mishaps are responsible  for hundreds of emergency room visits every year, and while it may be  impossible to eliminate every danger, any play equipment on your association's  grounds must be vetted for safety, properly insured, and in compliance with  safety codes.  

 A long list of regulations govern New Jersey's playgrounds, covering  construction, maintenance and liability issues. "Playgrounds are expanding,"  says Scott Wolfson, a spokesman for the Consumer Product Safety Commission  (CPSC). "As playsets get taller and bigger, new safety concerns need to be  addressed."  

 The CPSC is actually good place to start if your HOA is unsure of where to begin  with the initial stages of planning or upgrading your play equipment. Wolfson  says that examining playgrounds and their various components is something his  office takes very seriously, due to the potential safety risk play equipment  represents. While the CPSC doesn't do playground inspections per se, Wolfson's  office literally wrote the book when it comes to safety guidelines for  playgrounds; the CPSC's Handbook for Public Playground Safety is required  reading for anyone training to be a playground inspector, but can be obtained  by any individual or group interested in maintaining a safe space for kids to  play.  

 In order to reduce New Jersey's number of playground-related accidents,  regulations and codes are continually being proposed, implemented, and revised  by lawmakers. The state, the Department of Community Affairs (DCA), and the  CPSC have all joined together to draft specific standards of care that HOAs and  municipalities must follow when building or upgrading their playgrounds. Not  every one of the guidelines set by these agencies is actual law, but by  adhering to the guidelines, associations can avoid potential hazards and reduce  their exposure to liability.  

 A key part of compliance is installing well-built, code-compliant equipment from  reputable manufacturers, says George Herberger, CPSI, vice president of Ben  Shaffer & Associates, Inc., a New Jersey design and supply company of playground  equipment. "You can't just go to Home Depot or a store off the highway and  purchase backyard playsets," says Herberger, a certified playground safety  inspector. "You should always deal with a credible, factory-certified  representative who's going to do everything by the letter of the law."  

 Herberger goes on to say that while it may be tempting to save money by making  equipment decisions on your own, in the long run such decisions most likely  won't be cost effective. Codes dictate specific rules for equipment, such as a  minimum space allowances between planks and other surfaces, guidelines for  anchoring other items, such as climbing ropes, and so forth. These and other  details of equipment guidelines are detailed in the CPSC's handbook, but it's  not necessarily stuff that the average HOA board member or manager would know.  

 "As designers, we have to know all of those codes and design accordingly,"  Herberger explains. "Now the American Society for Testing and Materials (ASTM)  has their own guideline for playground equipment as well, and we use both to  design our equipment."  

 Taking Responsibility

 But while it may be a play equipment specialist's job to know the minutiae of  safety rules governing his or her products, Herberger stresses that  associations bear the responsibility as well. "To reduce their liability, [boards and managers] need to make sure that the equipment they have meets the  guidelines," he says, "and an easy way to do that is to look for an IPEMA  certification, which is a third-party testing organization that certifies that  equipment meets both the CPSC and the ASTM guidelines."  

 According to the DCA's office of Communications and Policy, "it is ultimately  the responsibility of the property owner to ensure compliance with code." If  your association residents believe, though, that the equipment is faulty or  hazardous, they should notify management immediately and take steps to rectify  the problem.  

 Along with managing and maintaining their playground facilities for the safety  of the kids using them, HOAs must also take insurance and liability issues into  consideration—both for the sake of their residents and for their own bottom line. It's not  enough to just hang a sign disclaiming any responsibility for personal loss or  injury incurred on your association's play equipment—having the appropriate insurance coverage is crucial.  

 According to Brown & Brown, a community association insurance company with offices in Bethlehem,  Pennsylvania, insuring a playground isn't an issue as long as older, more  dangerous aluminum material isn't involved and there is plenty of safety-rated  ground cover. Newer playgrounds should be code-compliant and safe.  

 For his part, Wolfson also recommends working with a professional. "Have a  certified inspector come in with CPSC's handbook in hand and measure the depth  of your ground coverage, check to see if bolts are recessed into the wood, and  go over the various measurements we have for swings and other components," he  says. "They should also make sure the different areas of the playground are in  fact appropriate for the different age groups they're intended for."  

 "Boards first need to inspect their existing equipment," adds Herberger. "Then,  if they go forward and purchase something, they need to make sure it's IPEMA  certified. After that, a regular program of maintenance is important." He says  that means that every morning, before children are even allowed onto the  playground, a competent HOA staff member should check to ensure that the safety  surfacing is in place, no concrete footings have been exposed, everything is  tight on the structure, and that nothing has been broken or vandalized  overnight.  

 Do-It-Yourself?

 In order to reduce costs and encourage community involvement, some associations  turn a playground build or upgrade project into a community-wide activity,  inviting everyone to turn out and lend a hand installing new equipment or  sprucing up existing elements.  

 "We do about 100 community builds per year where an HOA will participate and we  supervise," says one playground designer based in Missouri. "This provides a  community feel, and lowers the cost of installation."  

 It can also be a lot of fun," he continues, "but again, it's ill-advised for an  association to launch a project like that without professional guidance. Some  associations won't do these builds because they don't want the liability with  the installation. If something happens and we did the build, the liability is  with us."  

 If an HOA wants to put some sweat equity into their playground, many  manufacturers and designers will be more than happy to oversee the assembly  process to insure that things are put together properly and in compliance with  safety guidelines. And regardless of whether the manufacturer or HOA residents  do the build, says the playground designer, all manufacturers do safety checks  after equipment is installed. If there is a problem, the seller can be called  in to fix the problem.  

 According to Cook, after safety and liability are covered, perhaps the most  important thing to remember about purchasing playground equipment is, "Play is  about more than running around. It's about wellness, whole body fitness,  socialization and emotional wellness, and play provides an environment for  unstructured learning. Play is for all ages and it's about fun."  

 Hannah Fons is associate editor of The New Jersey Cooperator. Additional  research by Mary Fons-Misetic.  

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