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Playgrounds Are Still Allowed to Pose Some Risk, In Theory Anyway (NY)

August 22, 2019

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<p style="text-align: justify;">Most people older than a millennial remember the "good old days" when playgrounds resembled death traps, complete with metal slides that burned your skin, monkey bars the height of a small building, and swings that seemingly reached the sky.  In a post-Stranger Things world, however, playgrounds are now constructed to comply with more stringent safety regulations, and to avoid even the slightest prospect of danger.</p>
<p style="text-align: justify;">But as one Second Department decision makes clear, all the fun-proofing in the world will not stop the lawsuits.  In<a href=""><span style="text-decoration: underline;"> </span> <em>V.W. v. Middle Country Central School Dist.</em></a><em>, </em>a school was sued by the parent of a girl who hurt herself falling off a set of monkey bars.  According to the plaintiff, the school district should be held liable because it negligently supervised the girl and negligently maintained its premises.</p>
<p style="text-align: justify;">In the trial court, the school district was awarded granted summary judgment.  However, the Second Department reversed.  On appeal, the school district actually prevailed on the negligent supervision claim.  According to the Second Department, the school district provided adequate supervision.  The Court even held that falling off monkey bars is an incident which could not be prevented with closer monitoring.  However, the Second Department reversed the decision on the negligent maintenance claim.</p>
<p style="text-align: justify;">Although the school district offered expert testimony showing the playground complied with applicable regulations, the expert also confirmed that the monkey bars had been removed by the time she inspected and she had also been unable to confirm surface conditions on the day of the accident.</p>
<p style="text-align: justify;">The Court’s decision in <em>V.W. </em>is significant because it does provide playground owners and operators some comfort that it is possible to avoid liability for risks that used to be a given.  But it also shows that they must show constant vigilance in maintaining the ground and preserving the evidence.    Here, the expert was rendered unable to inspect the monkey bars, because they had been discarded.  Hence, an issue of fact to deny summary judgment.</p>
<p style="text-align: justify;">Thanks to Mike Gauvin for his contribution to this post.  Please email <a href="">Brian Gibbons</a> with any question.</p>
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