Playground Safety And The Cheapskate Society

Through Andy Barovick’s Twitter feed, I saw John Tierney’s recent column in the New York Times about playground equipment:

[S]ome researchers … question the value of safety-first playgrounds. Even if children do suffer fewer physical injuries — and the evidence for that is debatable — the critics say that these playgrounds may stunt emotional development, leaving children with anxieties and fears that are ultimately worse than a broken bone.“Children need to encounter risks and overcome fears on the playground,” said Ellen Sandseter, a professor of psychology at Queen Maud University in Norway. “I think monkey bars and tall slides are great. As playgrounds become more and more boring, these are some of the few features that still can give children thrilling experiences with heights and high speed.”

After observing children on playgrounds in Norway, England and Australia, Dr. Sandseter identified six categories of risky play: exploring heights, experiencing high speed, handling dangerous tools, being near dangerous elements (like water or fire), rough-and-tumble play (like wrestling), and wandering alone away from adult supervision. The most common is climbing heights.

Various tort reformers have long used playground safety to attack personal injury lawyers. Playgrounds are boring these days, the story goes, because evil trial lawyers have forced cities and schools to prioritize safety over fun. The new line these days is that these excessively safe playgrounds aren’t actually safer, because they secretly cause long-term damage so subtle it can barely be perceived.

We’ve seen that line before with the “defensive medicine” meme. Never mind the favorable link between patient-friendly malpractice laws and the availability of treatment; tort reformers claim that doctors exposed to accountability will ignore the basic dictates of economics and, instead of working to reduce their liability by reducing the damage they cause, will inexplicably spend their time and money treating diseases that don’t exist.

Same goes for playgrounds. Tort reforms now say playgrounds are too safe because school administrators, for some unexplained reason, don’t worry about serious injuries — the only thing that can prompt any significant monetary liability — but rather phantom dangers manufactured by trial lawyers.

I think my favorite line from Tierney’s article is this one:

While some psychologists — and many parents — have worried that a child who suffered a bad fall would develop a fear of heights, studies have shown the opposite pattern: A child who’s hurt in a fall before the age of 9 is less likely as a teenager to have a fear of heights.

It logically follows, then, that we could rid society of acrophobia if we passed a law requiring all children be thrown from a height of no less than six feet at least once during adolescence. Perhaps we should  require that, if the child didn’t break a bone the first time around, they be shoved off again and again until they “learned” to be fearless in the face of an unnecessary danger.

In all seriousness, there might be some benefits to more dangerous playgrounds. It’s in the nature of children to explore and to experiment with their world. Children learn more through experiences than they do through mere instruction; that’s the thinking behind adventure playgrounds. It stands to reason they would learn more from facing a danger than merely being told about a danger.

There are drawbacks to dangerous playgrounds, of course, most notably the fact that dangerous playgrounds are dangerous. Sounds simple, but it apparently needs repeating, since nowhere in Tierney’s column does he acknowledge that a return to the playgrounds of old would also include a return to higher injury rates.

There’s no disputing that a classic jungle gym will inevitably produce some amount of broken bones and, in rare but not never circumstances, paralysis or death. Consider this ordinary case from Florida:

Dennis’ injuries resulted from his involvement in one such episode of tag. While playing on the monkey bar section of the jungle gym device, rather than climbing hand-over-hand underneath the horizontal ladder-like apparatus, Dennis chased after his friend, Erick Marin, by climbing, as his friend had done, on top of the apparatus. On top, Dennis pursued Erick along the support beams in the direction of a slide positioned next to the monkey bars. Erick, however, eluded Dennis by jumping off the top of the monkey bar and grabbing hold of a handle bar attached to the slide. Dennis not giving up the chase attempted the same, however was not as fortunate as Erick. Unable to get a firm grip on the slide’s handle bar, Dennis fell to the ground whereby he suffered a fractured clavicle and punctured eardrum.

Fractured clavicle and punctured eardrum aren’t life-threatening, but they aren’t minor, either. A fall from standing on to asphalt can fracture the skull and kill a healthy 16-year-old; little wonder a fall from 10 feet up at the top of the jungle gym, hitting bars on the way down, can cause serious injuries. At a bare minimum, they will cause a significant amount of expensive medical treatment.

In case you were wondering, playground injuries lawsuits aren’t easy to win. Consider this case from New York (where John Tierney’s newspaper is based, in case you missed it) in which a playground had a deceptive surfacing of only an inch or two of sand, rather than the eight inches of sand recommended by the Consumer Product Safety Commission. The eleven year old plaintiff fell and landed on solid ground (it doesn’t take much to blow an inch or two of sand around), breaking his arm. The chid lost at summary judgment anyway, without even going before a jury, and was ordered to pay the school’s defense costs.

But back to the subject at hand: whether or not we should have the safest playgrounds, sort-of-safe playgrounds, or dangerous playgrounds. These are important issues which should be thoroughly discussed and carefully decided. The silly suggestion throughout Tierney’s column is that trial lawyers somehow decide these questions. They don’t. Trial lawyers don’t order playground equipment. A plaintiff does not get an injunction in a personal injury lawsuit ordering the defendants to never do anything negligent again. All the plaintiff gets, for better or for worse, is compensation, hopefully fair compensation.

So why the focus on trial lawyers? We’ve been trained to think by years of insurance industry propaganda that there’s nothing worse than the possibility that, somewhere in America, a child injured on the playground had their medical bills paid by the municipality or school district responsible for the playground. What if the child was horsing around? What if the child isn’t a straight-A student? What if the family gets a little more than just medical expenses in compensation and uses some of the money to buy the kid an ice cream cone? What if — God forbid — the school wasn’t negligent in their maintenance but a jury makes a mistake?

Why, that would be unfair. A waste. “Frivolous lawsuits.” Thus, municipalities and school districts expend far more time making it as hard as possible for injured children to recover than they do making sure children are playing in an acceptable level of risk. They pay defense lawyers six figures to fight cases rather than five figures to settle them, refuse to discuss settlement until the case is on the verge of trial, and file every conceivable motion and appeal, all while claiming they are acting as stewards of the taxpayers’ money. It’s strange: as taxpayers we don’t mind when defense lawyers drain hundreds of thousands of dollars from a school district, but we go crazy if plaintiff’s lawyers get even a fraction of that. Consider the Lower Merion spycam settlement.

Truth is, cities and schools can set up whatever playgrounds they want. They can install the horribly dangerous contraption you see in this video. The question is if they’re willing to pay for the injuries they cause. If, as people like Tierney claim, the benefits to society of dangerous playgrounds are so great, they why aren’t they willing to have the community live up to its responsibilities?

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