An article on CNN last week began:


As a parent, this is another story that is impossible to comprehend: A 7-year-old girl is now dead after the bouncy castle she was playing on blew away at an Easter fair in Essex, England.


It is believed the castle was swept away by a gust of wind. The girl, Summer Grant, was taken to a local hospital and died of multiple injuries several hours later. A 24-year-old woman and a 27-year-old man have been arrested on suspicion of manslaughter by gross negligence, according to the Essex police on its Facebook page.


It’s of course tragic, but it’s not “impossible to comprehend.” Back in 2012, the medical journal Pediatrics published a study, “Pediatric Inflatable Bouncer–Related Injuries in the United States, 1990–2010,” which concluded:


From 1995 to 2010, there was a statistically significant 15-fold increase in the number and rate of these injuries, with an average annual rate of 5.28 injuries per 100 000 US children (95% CI: 2.62–7.95). The increase was more rapid during recent years, with the annual injury number and rate more than doubling between 2008 and 2010. In 2010, a total of 31 children per day were treated in US EDs for an inflatable bouncer–related injury, which equals a child every 46 minutes nationally.


It’s not incomprehensible when an inflatable amusement floats away in a gust of wind. It’s preventable.


And that’s the essence of my job: figuring out–after the fact–if an accident was preventable. You can imagine how risk averse I am as a result.


However, just because I’m a trial lawyer doesn’t mean that my kids can’t have fun. It just means that I strive to be reasonable, but sometimes “reason” has to almost hit me on the head.


Take what happened to me last week: the preschool my youngest attends holds a cross-country 5k fundraiser every year and, as fate would have it, I’m tasked with setting up the track beforehand and bicycling through it during the race to make sure all the runners make it through okay.


This year, there was a “wind advisory” for the whole Philadelphia region on the day of the race. Cancel the race? Not necessarily. It could be fine where the track is (in lovely Lorimer Park).


When I got there at 6am, there were some mild winds, and a couple small branches down, but nothing unusual. My friend and I were about a third of the way through marking the course when a gust came and this fell about 30 feet in front of us:




Now what? If we’re able to clear the path, do we hold the race anyway? Gosh, it was such a pain to get up this morning, and it’ll be such a pain to sit around telling disappointed people the race is cancelled, and it’ll be such a pain to reschedule it — but absolutely none of that is relevant to the real question. The only question that matters is: is it safe?


The answer to me was obvious: it wasn’t safe. However safe we thought it was before, there’s no ignoring a dangerous condition like that. Was it likely something like that would happen somewhere on the course during the race? No. Was it likely something like that would happen at the time a person was actually running under the tree? No.


But the risk of a gust of wind and a tree falling in the middle of the race and hurting someone wasn’t some wild, unpredictable event — it was right there in front of me, plain as day.


Here’s a rule of thumb I tell people who ask, “how can I avoid getting sued?” Think about how you’d explain under oath what you chose to do. If you can’t defend it, then don’t do it. If someone was hurt, and I was being deposed years later, how would I explain away the tree that fell right in front of me?


It’s easy to complain about how expensive it is to get a bouncy castle these days. It’s easy to complain about all those darn lawsuits and how they’re taking the fun out of everything. But the truth is, it’s not that difficult to be safe. My kids will get back in bouncy castles, but only after I check the wind, the depth of the spikes used to secure the castle (look for long steel ones, not little short plastic ones) and the operators.


As for the 5K, let’s hope the rescheduled day isn’t as blustery as the original one.