As a trial attorney I am often contacted by client’s who request my opinion on whether their chid’s accident in a playground was due to negligence. They ask questions like, was there enough supervision? Did the children have enough instruction on how to use the equipment? Aren’t monkey bars dangerous generally?
Often the answer results in my firm not pursuing the case. Kids do get hurt. Sometime’s accidents happen. However, recently I was contacted by a wonderfully nice family and presented with an interesting case.
Their six year old son who was in first grade at the time, had fallen off a piece of equipment during school in the playground. He described the equipment as monkey bars. In fact, the school incident report also stated he fell from the monkey bars. He told me he was jumping off and landed hard on his elbow on the mat below. He had a fracture to his elbow that would require percutaneous pinning which is when a doctor places a pin through the skin to allow the bone to heal. The pin is removed a few weeks later when the bone has calcified.
At first I advised the family, that based on those facts it would seem very difficult if not impossible to bring a case against the school for negligence. Kids play, there are monkey bars and falling from them, absent a design or construction defect would likely not be a case. Especially in Staten Island, a very conservative county.
The client’s mom told me she was going to visit the playground to make sure and see the layout. I of course offered to accompany her to the playground. We met and her son showed us to the area where he was playing. I was shocked. THIS WASN’T MONKEY BARS… THIS WASN’T ANYTHING I HAD EVER SEEN. IN FACT THE EQUIPMENT WAS WHAT WE LATER LEARNED WAS CALLED “ROLLING TABLE”. IT IS A TABLE, SET ALMOST TWO FEET OFF THE GROUND (ATSM, The American Society for Testing & Materials rules and guidelines require exit slides and other equipment to be a maximum of 15″ off the ground. the table had rollers running all across it. All the way to the ends. In the middle above the table was handles that looked like monkey bars.
We asked her son what happened. He said that he was playing and when he stood up to jump off the table, his feet rolled from under him as he was stepping down. That caused him to lose his balance and strike his elbow on the metal edge of the table.
I immediately advised the mother that this certainly seemed dangerous for 6 year old kids to be playing on. We asked her son if he was ever shown how to use the equipment. He said no.
Upon further investigation by the family and my firm along with our playground expert, we learned several important facts:
1. The school was never given instruction by anyone who installed or put the equipment in on how to use it.
2. The manufacturer sells this table normally with a flat non rolling ends so that in case used by children they have a safe method of exiting the table without having to step on rollers 3. The apparatus was meant for handicap individuals and the table would allow them to roll their body in a seated position while holding on to the monkey bars above. At the end, their assistant, would help them roll off back to their wheelchair or assisted devices.
4. The teacher testified that she never understood a safe method of using the equipment and just thought kids would figure it out.
Needless to say, my firm was retained, we prosecuted the case and as soon as we made it clear to the City of New York that the accident was caused by negligence they offered to resolve the case for a an amount that represented the full and complete value of damages.
In addition, my law firm received the following email the very next day after the matter had settled in Court:
“Ed – Would you kindly scan me color photos of the playground equipment? I would like to refer this to our RISK unit to remove or restrict the use of this equipment so that no children are hurt in the future. Thanks in advance and all the best.”
The mom of the boy also wrote my firm an email which indicated their appreciation for our efforts and the outcome: Name’s have been changed.
Dear Mr. Steinberg,
This news means more to me than anything. The day “John” was hurt was a very emotional day for me as he needed surgery and I worried about his future. Days after October 24th I went to visit the playground and knew in my gut as a parent that this equipment was unsafe. Not only for what happened to “John” but children could also get their tiny fingers caught in between the bars and if a girl with long hair laid on the table, her hair could possibly get rolled up in the bars. Since that time I advised “John” to never go on this equipment again as the students still go outside for outdoor gym. I had spoken to the parent coordinator and requested that they give the students instruction on how to safely play on this equipment perhaps at a school assembly but to no avail.
As my youngest is entering “School” in September for kindergarten I have given him my same speech about not playing on the rolling table as I would not want him to go through what “John” went through. I still see this equipment as an accident waiting to happen. As I drove to pick up “John” from school yesterday and saw the table again, I saw a young child standing on it. I immediately thought to myself, “Please don’t let her get hurt.” As I say this I remember bringing “John” to his pediatrician as he wore the brace and she said that I should take his picture and tape it on the equipment to warn parents to not have their children go on the rolling table.
If this case can remove the unsafe equipment, I know we have truly made the world a better place. As sappy as it sounds, as a parent and educator, I am overjoyed that “John’s” case will hopefully bring about a safe environment for all kids.
I want to thank you again for being “John’s”attorney through this all. From the moment I spoke to you on the phone, I knew you were a dedicated professional that would fight for what was right. When I met you I could see that you were sincere and treated my son fairly and were appropriate to him considering his young age. You treated “John” as if he was your own, never stopping for what you believed he deserved. From the bottom of my heart, my family thanks you for your time, dedication and availability at all times.
Sincerely,
“Jane Doe”
The lesson I learned was that a lawyer must always investigate a matter as best they can as soon as they can. Furthermore, most attorney’s would have heard monkey bars and boy falling and probably passed on the case. Our investigation and cooperation from the family was critical in the successful outcome.
