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Incident Foreseeability

By Thom Thompson, MS Ed., and Arthur Mittelstaedt Jr., EdD

Here's something you don't often see stateside--a hardscape under a piece of play equipment. This photo was shot in Yunnan Province, China, where safety surfacing has yet to catch on. Imagine the one kid at the top of this sliding structure falling to the pavement! Note the height of the slide exit.

What is the role of "foreseeability" in preventing injuries and fatalities? Foreseeability is defined as: The reasonable anticipation that harm or injury is a likely result of acts or omissions. Foreseeability, an element of proximate cause, is established by proof that an owner is a person of ordinary intelligence and prudence, should have reasonably anticipated danger to others created by a negligent act, without regard to what the owner believed would occur. The owner is responsible for consequence which is probable according to ordinary and usual experiences. (Adapted from Blacks Law Dictionary.)

Take the Nassau County, New York case: A five-year-old girl fell from an overhead device to attached swings and tore her vagina. In another case, an eight-year boy fell from an overhead device with attached swings and trapeze bar. His foot hit the swing seat, flipping him over and he seriously injured his elbow. These are just two of the dozens of cases reported by the National Electronic Injury Surveillance System (NEISS) each year [].

Could the two cited case injuries have been foreseen? Since 1991, the Consumer Product Safety Commission (CPSC) [] has required individual use zones for each piece of play equipment. This is based on injury data, including an injury category called "falls to the same piece of equipment." In addition, CPSC has required that moving equipment, like swings, be located away from and out of the use and traffic pattern areas of stationary equipment since 1991. This is based on injury data, including an injury category called "impact with moving equipment."

The American Society of Testing and Materials (ASTM) [] has mirrored the requirements of CPSC for individual use zones for equipment since 1993, citing the need to provide better playground equipment safety as the rationale. ASTM has also mirrored the requirements of CPSC for locating moving equipment away from the use and traffic patterns and safety zone areas of stationary equipment.

The Consumer Product Safety Commission (CPSC) has required individual use zones for each piece of play equipment since 1991, and that moving equipment, like swings, be located away from and out of the use and traffic pattern areas of stationary equipment.

Other best practice guides, e.g., Play for All Guidelines: Planning, Designing and Management of Outdoor Play Settings for All Children, by Robert Moore, et al., has recommended since 1987 the separation of swings from other play equipment to avoid injuries to children who walk in from of them.

Certainly, a nearly 30-year history of the collection and analysis of injury data from playgrounds by CPSC has shown certain types of injuries are predictable, do occur and can be reasonably anticipated. This makes them foreseeable, even if not personally experienced.

Such data used individually, and especially collectively, suggest recommendations that represent the standard of care in the industry for child safety with individual types of play activities. The reason data is collected on a national basis is to present the broadest picture of the cause of injuries so they can be prevented at the local level. In short, the data is for everyone's benefit so that such incidents with like conditions can be anticipated. Personal tragic experiences can be eliminated by foreseeing errors or omissions in play event arrangements.

It is the duty of manufacturers to eliminate designs known as a cause of fatalities or injuries or that could reasonably lead to incidents based on the analysis of data. The data is relevant to all playground equipment, public, commercial and private because it is based on the mechanics of the injury, not equipment type. It is not sufficient for a manufacturer to claim they have no direct experience with or knowledge of types of injury that occur on this equipment.

Most manufacturers understand the issue and that functional design of equipment should not create a hazard to the users from a known, reasonably foreseeable cause regardless of the play setting. They have to realize that foreseeability applies to their product design whether they have corporate records on specific injuries or not. The specific intent of safety recommendations from all credible industry sources is to prevent known causes of injuries. Laws state: "Owners, manufacturers and operators should reasonably anticipate the danger to an event which occurred or some similar event...which is probable according to ordinary experience."

There are important implications here for the designer and specifier of play environments. Generally, there is not a problem when the designer or specifier is working with a public entity like a school district or park department. All parties are usually aware the equipment selected must comply with the standards for public use.

There are design opportunities that create careful decision-making on the part of manufacturers and purchasers. Thom Thompson has dealt with two incidents where children were injured or died on equipment that was not suited for the play arrangement and its location. These incidents involved equipment that were manufactured under the ASTM F 1148 standard for home playground equipment. The location of the equipment was in both cases at multifamily residences--apartment complexes. In both cases the owner of the complex was unaware that the equipment was not suited for the site. Because an apartment complex is a public use facility, the equipment specified must be manufactured models that meet the ASTM F 1487 standard for public use equipment because of the anticipated use. Such equipment is different from home play equipment.

Foreseeability is defined as "reasonable anticipation that harm or injury is a likely result of acts or omissions." Playground designers and play structure manufacturers are attentive to this in the U.S. Some might even argue overattentive. Laws here require owners, manufacturers and operators to reasonably anticipate the danger to others. Here in Saigon, we foresee children slipping, falling and hurting themselves.

The authors have been called on to evaluate numerous apartment complex play facilities throughout the country. These have been facilities owned by major national apartment complex development firms. In such instances the evaluation proved the equipment selections had been based on suppliers of equipment that were manufactured under home-use standards, rather than public-use standards. Admittedly, a consideration of cost may have played a role in the decision and specification of this equipment but the outcome was tragic in some cases.

As manufacturers are not exempt from the issues of foreseeability, designers and specifiers are also not exempt. It can be argued that designers are held to a higher standard of care because it is their professional responsibility to understand what is and is not appropriate for a particular setting and user.

Designers and other architects are in an important position to assure that play site projects are equipped with the proper type of equipment. They can serve as the first line of defense for reducing children's playground injuries. However, the specifying decisions must be based on adherence to following the correct industry standard of equipment for the arrangement and location. That decision is to always select equipment that conforms to the higher standard for public use. The playground designer must foresee the probability of injury and ensure that all safety measures are employed as the definition of foreseeability implies.

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October 17, 2019, 9:13 am PDT

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