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April 19, 2018

In New York Playground Accident Case- Westchester Supreme Court Recognizes that a Violation of Safety Regulation is Evidence of Negligence

By Michael H. Joseph

Our White Plains playground accident lawyers won a major victory in which the defendants’ motion for summary judgement to dismiss the complaint was denied by the Supreme Court of the State of New York for Westchester county.   The case involved a child who sustained a fracture after falling from playgound equipment at a Mohegan Lake School playground. The Westchester Supreme Court found that our White PIains playground accident attorneys, established a case of negligence based on the school’s failure to comply with applicable regulations regarding the surfacing below playground equipment. In other words, even thought the fall was not the fault of the school, the child’s injuries were because the school ground did not have the required surfacing.

To establish that the school was at fault, our Westchester playground accident lawyers relied on the standard set in Handbook § 2.4.2.2, which requires that playgrounds with wood chip surfacing have a minimum depth of nine inches, and further requires frequent maintenance to ensure that surfacing levels never drop below the minimum depth. The motivation of the regulation, Handbook § 2.4.2.2 requires that playgrounds with wood chip surfacing maintain a minimum depth of nine inches, and the regulations of the Handbook are applicable to defendants’ playground.

In 2014, our client, who was in Kindergarten at the time, fell from a piece of playground equipment at her elementary school. All of school’s kindergarteners, a total of approximately 70-80 children, were in the playground, supervised by four school employees called monitors.  Plaintiff had been hanging from a bar on the piece of equipment, about to attempt to move to the next bar, when her hands slipped and fell, fracturing her wrist.  Plaintiff’s claimed that the equipment on which the child was allowed to play was not age appropriate, and that defendants failed to maintain an adequate depth of woods chips to cushion the child’s fall.

In moving for summary judgement, defendant’s offered the affidavit of a Certified Playground Safety Inspector (“Safety Inspector”), who examined the equipment at issue and the surface beneath it, and asserted that: the equipment in question was in good condition and was in compliance with all applicable standards for playground safety, and was adequate given the height of the equipment.  The Safety Officer also explained that surfacing specifications and recommendations are designed to prevent life threatening head injuries and not to prevent other injuries such as fractures.  However, Plaintiff’s father testified that he had gone to the playground and visually inspected the wood chips under the equipment, and by moving the wood chips with his hand, approximated that the depth of the wood chips was one inch. Plaintiff also offered an affidavit by an Investigator who visited the playground in question thereby determining the depth to be one inch.

The assertion by defendants’ expert that the wood chip surfacing beneath the equipment, which she found to be six inches deep, was compliant with all applicable standards for playground safety fails to establish that defendants complied with the applicable standards contained in 2.4.2.2.  However, the Westchester Supreme Court rejected the defendant’s expert’s claims because the Court found that whatever the motivation of the regulation, the Playground Safety Handbook section 2.4.2.2 requires the playground with the wood chip surfacing maintain a minimum depth of nine inches, and the regulations of the Handbook are applicable to defendants playground. Consequently, defendants have failed to establish a right to dismissal of plaintiffs’ action as a matter of law.  Therefore the Court held that the defendant could be held liable for the injuries, because  “A violation of a safety regulation may be considered as some evidence of negligence”.

 

 
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