Maintaining HOA Playgrounds Playing it Safe

The sound of children playing outside is one of the many joys of the warm weather months. Playgrounds are a place where parents and guardians can relax while kids get some exercise and burn off energy before a nap. Playgrounds can also contribute to an association's property values and sense of community, but in order for a play facility to be enjoyable, however, safety must always come first.

A long list of codes and regulations govern New Jersey's playgrounds, covering construction, maintenance and liability issues that a community association must consider when building, updating and maintaining their playground.

The Law of the Jungle (Gym)

The New Jersey Department of Community Affairs (DCA) reports that over 200,000 children are seen in U.S. emergency rooms each year with injuries caused by or related to playground equipment. In order to reduce this figure, regulations and codes are continually being proposed, implemented, and revised by lawmakers who have everyone's safety in mind.

One such legislator is New Jersey's U.S. Rep. Frank Pallone, Jr., D-6, who represents an area which covers most of Middlesex County, a good portion of Monmouth County and small portions of Somerset and Union counties.

In 2001, Congressman Pallone introduced the Safe Playgrounds Act of 2001 to the House with an aim to provide $1 million grants to states that pass laws—or already have laws—in accordance with the safety guidelines outlined by the U.S. Consumer Product Safety Commission's (CPSC) 42-page "Handbook for Public Playground Safety."

"As the school year ends and summer begins, children all around the United States will be spending more time playing with friends at nearby playgrounds," Pallone said in his statement to the House. "While most kids enjoy horsing around at the playground, it can be a dangerous place if the equipment is either broken or not up to code. Playground accidents will always be a reality, but by making these grounds as safe as possible, we can cut down on those accidents that are not the fault of the child but the playground itself."

According to Donna Thompson, Ph.D., director for the National Program for Playground Safety, "If golf courses were maintained in the same manner as playgrounds, there would be a great hue and cry. Children deserve playgrounds that are consistently safe. Adults have a responsibility to provide safe playgrounds so that children can do what children do best, and that is play."

To that end, the state of New Jersey, the DCA, and the CPSC have all joined together to draft specific codes that HOAs and municipalities must follow when deciding to build or upgrade their playgrounds. Not every one of the guidelines set by these agencies is actual law, but by heeding their advice, an HOA can avoid potential hazards (and even fatalities) that might result from deferred maintenance or attempts to cut corners to save money.

The Swinging Set

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."

Clearly, the components of playgrounds have changed since many of us were young enough to use them—the days of a blacktop slab with two swing-sets and a metal slide are over. "Playgrounds are expanding," says Scott Wolfson, a spokesman for the CPSC. "As playsets get taller and bigger, new safety concerns need to be addressed."

The CPSC is a good place to start if your HOA is unsure of where to begin when they are in the initial stages of planning (or updating) a playground. The CPSC is charged with protecting the public from unreasonable risks of serious injury or death from the more than 15,000 types of consumer products under the agency's jurisdiction. 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—something that is always a priority.

"We come in when there is a potential or existing defect in a product," says Wolfson, and while his office doesn't do inspections per se, the CPSC literally wrote the book when it comes to safety guidelines for playgrounds.

The Handbook for Public Playground Safety" is required reading for those individuals training to be playground inspectors, and CPSC officers can perform playground investigations in the event of death or serious injury.

In addition to that, a division of the National Recreation and Parks Association holds a training course for playground inspectors each year in suburban Washington, D.C. and they use the CPSC handbook as their "bible." You don't have to take the course to read the textbook, however, as the Handbook for Public Playground Safety can be obtained for any individual or group interested in maintaining a safe space for kids to play.

Playground Permits

Of course, before any actual playground building occurs, permits must be obtained. The permits are usually granted on a case-by-case basis. It is the responsibility of the HOA (the building manager or the Recreation Committee, for example) to obtain this permit. A phone call to the building inspector usually does the job. After you've got the go-ahead to build, remember that playgrounds must be built according to the "Standard of Care" outlined by the CPSC. It's a good idea to get all the information available before beginning a playground project, as the standards change as more research is done.

The latest major change occurred in March of 1999, when New Jersey enacted Chapter 50, an act concerning playground safety regulations for both public and private entities. The Playground Safety Subcode established several deadlines for owners of public or private playgrounds to update both surfacing and equipment. The code gave owners of playground properties until October 2004 to upgrade surfacing and until October of 2007 for the updating and replacement of other playground elements.

Elements of Play

Surfacing is the first component of any playground that requires serious attention. There are many types of surfacing available these days, and it's important for playground designers and boards alike to be aware that certain kinds have become outdated, and are even illegal to use. Sand and grass, for example, are not handicapped-accessible, and are therefore not allowed to make up the main surface of a playground, though an area can have parts devoted to sandboxes or grassy knolls.

"As far as surfacing goes, engineered wood fiber is a popular option," says George Herberger, vice president of Ben Shaffer & Associates, Inc., a New Jersey design and supply company of playground equipment. "It's a loose-filled type of surfacing that uses either wood chips or other materials, like shredded rubber." Other types of surfacing Herberger describes include unitary rubber systems which involve rubber tiles or one monolithic rubber pad, poured into place at the site.

Herberger says that one of the newest methods is a two-layer process that uses a rubber shock pad underneath PVC tiles. All of these options are compliant with code, and their relative costs can be investigated by your HOA. The CPSC's guidelines for surfacing and other playground elements can be found on the CPSC's website (

"When it comes to surfacing, the CPSC doesn't necessarily favor one type over another," says Wolfson. "But the proper type of surfacing takes a potentially deadly situation [like a fall] and minimizes the severity of the injury."

There are many options when it comes to the actual equipment, as well, and this is where your HOA can get creative, though safety is still paramount. "You can't go to Home Depot or a highway store and purchase backyard playsets," says Herberger. "You should always deal with a credible representative—factory-certified representatives are going to do everything by the letter of the law."

Herberger also says 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 six-foot allowance on all sides and the anchoring of the top and bottom of certain items, such as climbing ropes. Allowing ample space between bars on tiered equipment is important too, so that a body or head can't get stuck and cause serious injury, or worse. These and other details of equipment guidelines are detailed in the CPSC's handbook.

The safer your playground, the less chance of injury and maintenance later on. It is an association's responsibility to make sure the playground is correctly and safely built, and according to Jennifer Monaghan in the DCA's office of Communications and Policy, playgrounds are actually not subject to state inspections. "It is ultimately the responsibility of the property owner to ensure compliance with code," says Monaghan. "Even though the equipment you purchase isn't likely to be randomly inspected, if an injury occurs because of lack of compliance, your HOA can have major legal problems to face," she says.

And, if you encounter faulty or hazardous equipment, advises Monaghan, contact the CPSC immediately, as well as the management of your building. The out-of-pocket cost for building a playground or updating an existing one is hard to pinpoint, due to the many factors involved that differ from building to building.

You need to ask yourself some basic questions: How many children does the playground need to accommodate? What is the average age of the children who will be utilizing the equipment? How much money is available in the budget for installation and ongoing maintenance? And remember, there may be factors you can't foresee, such as vandalism or defective merchandise.

"Maintenance costs vary widely," adds Herberger. "You might need a 50 cent screw or a $3,000 slide." Some costs can be anticipated, however. "Engineered wood fiber surfacing needs to be replaced about every two to three years," he says, and adds that rubber surfacing systems last longer but do cost more initially. Herberger, who is himself a nationally certified playground inspector, says that it's tough to guess how much the cost of a playground will be over the long run. For those with doubts about the financial responsibility of a playground, he speculates that "Your playground might not cost you anything for 10 years."

The Insurance Angle

Along with how to manage and maintain their playground facilities, HOAs must also take insurance and liability issues into consideration—both for the sake of their residents and for their own bottom line. While the majority of associations take pains to post notices disclaiming any responsibility for personal loss or injury incurred on the association's play equipment, it's not enough to just hang a sign—all associations need the appropriate coverage, and must exercise common sense when laying out the rules and regulations for athletic or sports facilities of any kind.

According to Helen Mader, a board member of the Fair Oaks Community Association in San Mateo, California, for around $1,200 a year, her board purchased general commercial liability insurance to cover the association's playground, and added an "athletics participants exclusion," to the policy as well. Mader says the exclusion means that the association cannot hold any type of organized, competitive athletic event—such as a three-legged race or basketball tournament—but that a simple pick-up game of basketball among residents or a game of tag amongst the neighborhood children doesn't fall under the exclusion clause.

Other associations and community groups have their own rules and exclusions to keep them on the right side of the liability equation, but whatever the fine points, it's vital to get the word out to residents about rules and expectations. While a conspicuously-placed sign doesn't absolve an HOA of responsibility, it does let playground users know that they're assuming a certain amount of risk by using the equipment.

According to the New Jersey League of Municipalities (NJLM), an organization of community leaders and administrators from across the state, "The question of whether signage is effective at reducing accidents on playgrounds has been debated for many years. Since supervision is not provided in many public play areas, signs can be used to educate users. Good signage is a form of supervision and as such may help reduce injuries—as well as claims of negligence in playground liability cases. Another purpose is to get feedback from users on things that concern them, are broken or in need of attention."

The NJLM offers the following tips to reduce risk and educate playground users:

• Signs should be placed in conspicuous areas, near entryways and equipment.

• At a minimum, playgrounds should have signs that state the age group for which it was designed. Other language should include:

- Rules for use (no food or drink; no bare feet etc.).

- Hours of operation.

- Area to be used only with adult supervision.

- Safety warnings (do not use equipment when wet; no running, pushing, or shoving, etc.).

- Ask users to report any unsafe equipment or conditions; provide a phone number.

• Signs should be yellow background (universal color for caution signs) with black text.

• Signs should be size appropriate for location (at least 11x17).

• All signs should be checked frequently and repaired or replaced as needed so they remain legible.

While a posted notice of rules and responsibilities and/or waivers signed by association members are a good start, they can only protect an association as long as that association upholds their responsibility to keep all equipment and surfaces in play areas in good repair—no amount of signs and disclaimers can prevent liability exposure (and potential litigation) if an HOA is negligent in maintaining their play facilities. For guidelines and advice on how much insurance is needed and how to avoid costly legal problems, it's best to consult your HOA's attorney, along with the CPSC.

According to Robin Flynn of Brown & Brown, a community association insurance company with offices in Bethlehem, Pennsylvania—"For a playground, there aren't as many questions as there would be with, say, a swimming pool, but some specific recommendations would be to replace older, more dangerous aluminum material with wood or plastic and make sure there's plenty of safety-rated ground cover—those are just some of the newer innovations that increase safety and decrease risk."

If your HOA does everything by the letter it's accurate to assume that costs can be kept to a minimum and everyone can enjoy a safe and pleasant playground.

Mary Fons is a freelance writer and a frequent contributor to The New Jersey Cooperator.

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