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Park districts can take steps to lessen their potential liability for the installation, maintenance and supervision of playground equipment. By Philip H. Gerner III Editor's Note: The following article presents one attorney's views on the overall ramifications of the Chicago Park District's lawsuit involving a tornado slide. In January, 1985, the Chicago Park District agreed to a pretrial settlement in a lawsuit brought on behalf of a child who was injured on a 12-foot winding playground or "tornado" slide at Hamlin Park in 1978. The settlement raises difficult questions concerning the use of slides and other playground equipment, the adequacy of playground surfaces, supervision of playgrounds, necessity of warning signs and the impact upon a park district's insurance coverages. Background The lawsuit was filed in 1979 on behalf of Franklin Nelson against the Chicago Park District, the owner of Hamlin Park; Miracle Equipment Company, the manufacturer of the slide, and Allstate Fence Company, the contractor which installed the slide. The suit alleged that the defendants' negligence caused Nelson, then a two-year-old boy, to fall off the top of a 12-foot tornado slide and sustain serious and permanent injuries. The suit contended that the slide lacked an adequate protective guardrail, and that the park district failed to adequately maintain and supervise its use. Since approval of the Nelson settlement, the Chicago Park District has removed most of the 200 tornado slides located on its playgrounds. The district also intends to reduce the height of any new or replacement slides to six feet or less. In addition, the manufacturer has changed its design of the tornado slide to include a protective railing. Negligence charges The tornado slide was installed on an asphalt surface in a public playground at Hamlin Park in 1975. At the time of Nelson's accident, the playground was not supervised by park district employees. Apparently, Nelson's mother had intended to slide down with him, but admitted that she was several steps below when he fell off the slide. Nelson suffered a severe skull fracture and permanent brain damage, and currently attends special education classes. The complaint alleged that the Chicago Park District was negligent in that it: • purchased a slide which was unreasonably dangerous based upon its design, height and structure (i.e., lack of adequate protective railings), • contracted for installation of the 12-foot high slide on an asphalt surface which would result in injury to children who fell, • allowed the slide, steps and handrails to become worn and slippery, • failed to restrict use of the slide to children of appropriate age (age 12 or older), • neglected to post warnings or instructions regarding use of the slide and • failed to supervise use of the slide. In a separate count of the complaint, it was further alleged that the park district committed these acts in a "willful and wanton" manner, District liability In managing their parks, playgrounds and recreational facilities, park districts are liable only for willful and wanton misconduct. Section 3-106 of the Local Government and Governmental Employee Tort Immunity Act provides:
"Neither a local public entity nor a public employee is liable for an injury where the liability is based on the existence of a condition of any public property intended or permitted to be used as a park, playground or open area for recreational purposes unless that local entity or public employee is guilty of willful and wanton negligence proximately causing such injury." In Richardson v. Franklin (235 III. App. 440, 447[1925]) the court stated that willful and wanton negligence goes beyond ordinary negligence and defined it as:
"Such gross, unreasonable negligence as to indicate a total disregard of consequences and an indifference to others or Illinois Parks and Recreation 18 July/August 1985
such as to indicate an utter disregard for the safety and lives of others." In a 1972 decision, the Fifth District Illinois Appellate Court dismissed a complaint against a park district based upon a child's injury on playground equipment (i.e., sliding board-jungle bars combination). The complaint failed to allege sufficient tacts to establish the park district's willful and wanton negligence. (Jarvis v. Herrin City Park District, 6 111. App. 3d 516, 285 N.E.2d 504 [5th Dist. 1972]). In contrast to the child's claim in Jarvis, the plaintiff's complaint in Nelson v. Chicago Park District set forth several facts in support of his allegations of willful and wanton negligence. These included failure to repair a broken handrail, allowing the slide platform and steps to become worn and slippery, and installation of a 12-foot high, winding tornado slide on an asphalt playground surface.
Accordingly, the Chicago Park District could not contend that the complaint failed to allege sufficient facts to establish willful and wanton negligence based upon Jarvis. Implicit in the plaintiffs allegations was the contention that the park district's installation of a recreational slide of such height over the asphalt surface indicated its reckless indifference and disregard for the safety of children using the playground. Ramification Based upon the Chicago Park District's settlement in the Nelson case, park districts should exercise greater care and scrutiny in the installation, maintenance and supervision of recreational equipment in their parks and playgrounds. Districts should first inspect their playground equipment to determine whether any unreasonably unsafe devices or conditions exist. Those districts seeking to purchase new recreational playground equipment should review the manufacturer's specifications. They should also require inclusion of necessary safety features, such as adequate handrails and protective guards, and written warnings concerning improper use of the equipment. Although park districts should not assume the responsibility for designing playground equipment, they may consider retaining expert consultants to review the manufacturer's design.
If possible, park districts should also obtain an indemnification and hold harmless agreement from the manufacturer and contractor. This will protect them from liability in the event of injuries resulting from defective design and/or improper installation. After installation, park districts should schedule playground equipment for periodic maintenance and repair. Districts should also supervise use of the equipment. If a park district cannot adequately supervise the use of such equipment for any reason (e.g., lack of employees, excessive labor costs), it should post warning signs indicating that no supervision exists. These signs should also specify that parents are solely responsible for the safety of their children. Although such precautions will not necessarily prevent lawsuits against a park district based upon accidents occurring on playground equipment, they should significantly reduce a park district's potential liability.
Illinois Parks and Recreation 19 July/August 1985 |
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