Playgrounds: Exercise or Peril?

A lawsuit concluded in Las Vegas involving the Lamplight Village Homeowners Association in February 2018. A 15 year old boy in 2013 sat on a swing to send a text message. The crossbar of the swing set, had, unbeknown to him, corroded and worn badly at the connection points. After he sat down, the crossbar weighing 42 pounds fell on his head, causing serious injury. The jury was told that over recent years, this was the fourth time the HOA had experienced a swing set failure. The HOA, reportedly believing that the play set was new enough that maintenance was not yet warranted, did not have any regular maintenance or inspection of the play equipment. The particular swing set was about three years old at the date of the incident.

When the trial ended, the jury awarded $20 million to Thompson, of which $10 million was punitive damages. The HOA only has $2 million of liability insurance coverage.

Many valuable lessons can be drawn from this case, not only for playground equipment, but for any location in which members are using common area land or equipment for recreational purposes.

In tort law, carelessness, or negligence, is a common way of imposing responsibility when that negligence contributes to injury. If an association is aware of a dangerous condition and fails to act, liability might be imposed. However, if the association is not aware despite reasonable vigilance, it might not be found liable. One important exception to this is when the area in question is not periodically inspected – the lack of regular inspections could itself be argued to be negligence.

California has since at least 2006 had Health and Safety Code 115725, requiring “public” playgrounds to be initially inspected by National Playground Safety Institute certified inspectors. The same as with California swimming pool regulations, HOA playgrounds are also considered “public” within the statute.

Once a safety issue or maintenance concern is identified, associations should respond with reasonable diligence. One size of diligence does not fit all, as minor issues might require less urgency than major ones, but in the area of potential injury, one might argue that SOME action is always warranted. In the event of a significant injury potential, the equipment may need to be closed until it can be made safe.

Having some safety rules and disclosures could help to educate and limit misuse. Are there weight, size or other reasonable limits on the use of the equipment? Are there limitations as to the hours the playground is in use? Avoid age-related rules, or the association might run afoul of state and federal Fair Housing laws (which, amazingly, do not allow HOAs to institute safety standards based on the age of the participant).

Associations often focus on roofs, decks, and plumbing because problems in these areas can be expensive to fix, and that these components wear down over time. Think about a swing sets, weightlifting machines, or even diving boards – these items are challenged every day by users pulling, pushing or jumping on them. Yet, recreational equipment may not be perceived as important as balconies, roofs, plumbing, and railings. Perhaps the Thompson v. Lamplight Village trial is an important wakeup call emphasizing that all association facilities are important – and some are more potentially hazardous than others.

Written by Kelly G. Richardson

Kelly G. Richardson Esq., CCAL, is a Fellow of the College of Community Association Lawyers and a Partner of Richardson | Ober | DeNichilo LLP, a California law firm known for community association advice. Submit questions to [email protected]. Past columns at www.hoahomefront.com. All rights reserved®.