One universal truth on which we all can agree is that kids like to play. They love little more than getting together and having a bang-up good time. And in almost any cooperative, condominium or homeowners’ association, there is likely to be a gaggle of youths who need to burn off some energy. A board is left with the choice between letting this roving band of rapscallions traverse the property unchecked, wreaking havoc on carefully-manicured lawns, or providing a designated place for kids to gather and enjoy some fresh air. Should said board wisely adopt the latter strategy, there’s a name for this type of consolidated entertainment structure, what we call: a playground.
Clearly, the imperative when housing a playground on a condo or co-op premises is safety. There may also ensue shifting community dynamics or potential lawsuits should a child get hurt. Thus every precaution must be taken to prevent that from happening. So what’s new in playground safety? What materials are being adapted into the works? Are kids playing differently than they were, say, a decade ago?
The Legal Briefing
It’s important for a board to understand the various rules and regulations in regard to things like liability, negligence and safety in its region before allocating a space for children to play. “In Illinois, liability is going to be based on a negligence theory,” says James A. Slowikowski, a partner with the law firm of Dickler, Kahn, Slowikowski & Zavell, Ltd. in Arlington Heights. “A property owner, so to speak, has to have knowledge of a condition that could lead to injury. So, with that in my mind, my first piece of advice to clients with playgrounds is to conduct regular inspections, or have the property manager go by a few times per week to make sure that things are on the up-and-up, and, if you see something that looks like it may be in need of repair, get people out there right away.”
In regard to a board considering installing a playground for the first time, or overhauling its existing equipment for something entirely new, Slowikowski strongly recommends consulting an architect. “There will be those who specialize in this particular area, and will know the relevant codes and proper materials off the tops of their heads,” he says. He also advises against trying to build something for the kids in-house. “At the very least, have a project manager who knows playgrounds supervise. But if a board insists on allowing someone on the premises to construct play equipment, I would still recommend it have an architect on hand who does specs. The architect would make sure that the work gets done properly and the correct precautions are taken.”
As long as manufacturers adhere to code when constructing playground equipment, they more often than not cannot be held liable for any injury that results from the equipment, but this is not always the case. “If the product itself ends up having a defect or a latent defect, we have product liability laws that could still find the manufacturer liable,” explains Slowikoski. “Let’s say that you’re putting in a swing set, and there’s a flaw in the metal that holds the bar together; you’d have no way of knowing this beforehand, and if that product fails and leads to an injury, there’s potentially a product liability case against the manufacturer, who in turn would go back to whoever made that metal, in all likelihood. But if the product itself has a latent defect, the manufacturer wouldn’t be off the hook.”