Who is Liable?
Q. Our agency has for many years been installing new playground equipment and site amenities on our public school district grounds, located within our agency's jurisdiction. I have become aware of maintenance and repair deficiencies at many of the playgrounds we have installed over the past several years and it does not appear from my conversations with school district administrators that they are interested in addressing my concerns. Surfacing is not being maintained at the required and designed depths. EWF surfacing systems are not being maintained to meet the ADA/ABA accessibility requirements. Some of the play equipment components are missing or broken. I have informed all my supervisors of this situation and asked if our agency was liable for any injuries that might occur or have occurred in these playgrounds that are not being maintained to our standards.
My boss thinks the school district is responsible regardless of who bought or installed the equipment since it is on their property. I told him I thought we were responsible in some way since we paid for the equipment and installed the entire play area so the general public could use the playgrounds after school hours, weekends, and summers when school is not officially in session. Who is right?
Thanks for your input.
Sincerely, Mr. M.P.
A. Interesting question, Mr. M. P. You might be correct with both. This is a very common situation that may work very well when two governmental agencies with mutual interests and needs can find common ground and create a solution where the taxpayers are the winners.
It would be great if you could work together to solve this need, and everyone seems to be happy with the outcomes. I hate to throw a cold bucket of water on your situation, but I think you should have your supervisor and anyone else in a position of authority look over this written agreement. Oops! Did I say something I should not have said? There is no written legal agreement between the two governmental entities that outlines everyone's responsibilities and liabilities.
Is the agreement signed by those who are empowered to sign such a legal contractual relationship? I have heard of some horror stories from similar situations that were intended to only benefit the taxpayer and ended up causing the taxpayer and many elected officials a lot of problems politically once a serious injury occurred on the playground. Neither party's insurance carriers would honor the claim.
Since a detailed list of each party's responsibilities was never spelled out in writing, each claimed the other had a duty to supervise, maintain, inspect, and repair the playground. The plaintiff's attorney was having a field day. Neither entity won, regardless of the final outcome. Someone was hurt, and that might have been avoided if one or the other party had acted responsibly. Neither party wanted to see anyone get hurt, but things happen. Both parties should have done their due diligence in establishing a written agreement that both parties could live with and adhere to, that addressed all these general liability issues.
I have included a sample intergovernmental agreement that was developed to show what might be done to begin to address both party's concerns. This sample may have no legal grounds for your situation, as each state has statutes that limit what your agency may or may not do in this kind of situation. It is intended as a starting point for both parties to expand upon as necessary. I suggest you discuss this with your legal counsel and risk manager and then discuss it thoroughly with the school district staff before you bring the issue and possible solution to your governing board. I have heard of school districts that leave the playground development and replacement issues up to their PTO, which raises the money and even installs the equipment. I also have heard how some insurers have stated they will not insure the PTO or their volunteers who installed the playground in the event of an accident. Since this was a donation to the school district, and the equipment and surfacing were installed by your staff on the school's property. I can not see how the school district could not accept your donation and hold the PTO and volunteers harmless in the event of a lawsuit. There needs to be a lot of meetings between all parties involved to ensure each party understands their liability and responsibilities for the safety of your constituents.
Ken Kutska, CPRP, CPSI
-- Draft use only --
INTERGOVERNMENTAL PLAYGROUND INSPECTION
AGREEMENT is made as of the___ day of ___, 2099 by and between the __________ Park District, _______ County, ____ State, a unit of local government ( Park District ), and the____School District No.____,_______ County, {state}, a school district ( School District ).
Park District and School District are hereinafter sometimes individually referred to as a Party and jointly referred to as the Parties.
Recitals
- School District is the owner of certain real property in _______ County, {state};
- School District desires to utilize Park District's experience and services to assist School Districts in maintaining certain school property;
- Park District and School District are authorized by Article 7, Section 10 of the Illinois Constitution and the Intergovernmental Cooperation Act (5 ILCS 220/1 et seq.) to enter into an intergovernmental agreement providing for Park District's assistance in maintaining the School District property.
- That both parties desire to cooperate in providing quality recreational property and facilities to the advantage and benefit of the community and taxpayers thereof;
NOW, THEREFORE, it is hereby agreed as follows:
- Include a paragraph addressing/detailing the scope of services contemplated by the agreement (i.e., playground inspections). Generically, refer to the same as collectively Services.
- That it is mutually understood that Park District does not by virtue of services rendered to the School District expressly or impliedly undertake to perform or assume any duty owed by the School District to any of the School District employees, students, visitors, or other third persons in respect to the safe/healthful maintenance and/or operation of the facilities/properties where Park District's services are performed. Any and all obligations contained in this Agreement are for the sole benefit of the contracting parties and are not intended to acknowledge, establish, or impose any duty to third parties.
- The park District makes no warranties of any kind, express, implied, or statutory, including, but not limited to, warranties for merchantability and fitness for a particular purpose, as to its findings, recommendations, specifications, or advice except that they shall be prepared in accordance with the Park Districts own practices.
- That School District is solely responsible, at its own cost and expense, for maintaining its property and facilities.
- The park District will provide the Services in the same manner as it provides generally for its own park properties. If during the course of performing the Services, the Park District observes any item needing repair or other maintenance/risk management consideration, it will promptly advise the School District. It is understood that the School District is solely responsible for making or causing to be made any and all recommended repairs or adopting any maintenance/risk management recommendation made by the Park District, the same being and remaining within the sole discretion of the School District.
- That to the extent permitted by law, the School District shall indemnify, save, defend, and hold harmless Park District, including its officers, officials, agents, volunteers, and employees, (hereinafter collectively referred to as indemnitee ) from and against any and all liabilities, obligations, claims, damages, penalties, causes of actions, costs and expenses (including reasonable attorney and paralegal fees) which the indemnitee may become obligated by reason of any accident, bodily injury, or death of persons, or loss, or damage to tangible property arising directly or indirectly in connection with, or under, or as a result of this Agreement; including claims, damages, liabilities, or losses arising out of any negligent or wrongful act or omission of the Park District.
- That School District agrees to provide and keep in force at all times during this Agreement, comprehensive general liability insurance, including contractual liability coverage, with minimum limits of not less than one million dollars ($1,000,000) per occurrence, and two million dollars ($2,000,000) annual aggregate.
All coverage provided by the School District herein shall be primary coverage as to the Park District. Any insurance or self-insurance maintained by the Park District shall be in excess of the School District's insurance and shall not contribute to it.
The Park District, officers, officials, agents, and employees are to be covered and named as additional insureds under the General Liability coverage, which shall contain no special limitation on the scope of protection afforded to the additional insureds.
Portable Climber Standards?
Q. We have portable climbers on some of our playgrounds and in classrooms. My understanding is that there are currently no standards for portable equipment, and climbers less than 36 inches in height do not have depth or fall zone standards. We were considering adding rubberized mats under these climbers and wanted to ensure they met the standards.
Ms V, Branch of the US Military
A. Thanks for your question. Since the military installations fall under the scope of ASTM F1487, your playgrounds must comply with all aspects of the standard regardless of where the equipment is located.
By definition, public playground equipment must be permanently attached to the ground or not able to be moved.
Portable equipment is obviously not in compliance with this statement. If the equipment was able to be affixed to the surface and not able to be moved, it would still need to meet all use zone requirements of the standard.
According to the ASTM F1487-05 version of the standard for public playground equipment, only equipment that is intended to be used while the user's feet are in contact with the ground or require the user to be in a sitting position is exempt from use zone requirements. Even then, professional judgment should be exercised in providing adequate space for user circulation.
Since you indicated the equipment was a climber, the critical height of the impact-attenuating surfacing system within the 72-inch use zone must meet or exceed the fall height requirements of the climber. This information should be obtained from the mat manufacturer that you are considering using before purchase. This information should include a written certification of the surfacing. The material was tested in compliance with ASTM F1292. In addition, the mat manufacturer should also provide written certification that the material is compliant with ASTM F1951 standards for determining accessibility. If you are operating school playgrounds, you may not use portable equipment.
The current ASTM Standards do not exempt portable equipment and climbers of any height. The standards require that, whatever the height of the equipment, the surface, when tested, register under 200gs of energy or 1000 Head Injury Criteria, whichever comes first, when a head form is dropped on the surface.
I suspect, from your questions, that you are operating childcare facilities, and the American Society for Testing and Materials International (ASTM) has a standard for Playground Safety for Children Under Two ASTM F2373, which should answer many of your questions.
NRPA members and CPSI Course Instructors continue to receive many questions from program participants. If you have any specific playground-related questions you would care to ask, drop a comment below. You can keep your questions anonymous, so do not hold back.
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