Playground Safety & the Law

By Scott Burton, CPSI, president, Safety Play, Inc., and Arthur Mittelstaedt, Jr., EdD, LASN associated editor

In California, public playgrounds must comply with all CPSC and ASTM rules (1487, 1918, 2049, 1292, etc.) as of 1/1/08. This city park in Irvine, Calif. has no liability issues in that regard. (See pgs. 32 & 126 for CPSC and ASTM compliance in various states.)
Photo: Steve Kelly

The manufacture, design and installation of playgrounds has been governed by the guidelines (voluntary criteria) established by the U.S. Consumer Product Safety Commission (CPSC) for the past 26 years, and the voluntary standards of the American Society for Testing and Materials (ASTM) for the past 14 years. However, many states have passed legislation defining varied requirements in the manufacture, design and installation of playgrounds and their equipment, surfacing and fencing.

It is generally accepted that playgrounds can be a place where children can become injured to the point of having to go to the hospital, or worse, even die from injuries incurred while simply playing and having fun. This has necessitated a strong effort over the years by many organizations to promote criteria, guidelines, considerations, specifications and standards for playground elements to mitigate such injuries or fatalities.

It is necessary to first address the duty to comply with national norms versus complying with whatever has been enacted into law. The fact that a state has not passed certain playground safety compliance laws does not exempt one from complying with the nationally recognized Standards published by the ASTM and Guidelines published by the CPSC, as well as other recognized agencies. One cannot simply claim safety standards do not apply, since they are not “mandatory.” This contention can come back as a lawsuit against the owner/operator of the playground. However, another article will address courtroom decisions.

If your state remains without any laws applicable to playground safety, you still have the duty to follow the national norms adopted by most entities. Parks, schools, childcare centers, etc., have used the ASTM Standard #F1487 and the CPSC Guidelines #325 for “public use” playgrounds for years, as have most reputable manufacturers.
Photo: Pamela Blough, ASLA, P.M. Glough, Inc.

Grandfathered, Not

Another seemingly popular fallacy is, “Our playground is grandfathered in, and doesn’t have to comply with any safety rules.” A “grandfather clause” is not written in any of the documents that apply to playground safety. Some feel that the standards only apply to “new” equipment installed after a standard is created or revised. But just think about how to interpret “new equipment.” Does the standard apply only to equipment installed six months after the publication date of the standard? What about equipment on the same installation project that gets installed a month apart? Does the newest unit comply with the new standard and the one that is only a month exempted? That logic will never pass muster with a jury. It is widely understood that all equipment has to comply with the latest revision. That is specifically the law in California and some other states. Compliance with ADA does have a grandfather clause. If the equipment was installed before December 20, 2000, it does not have to comply to ADA. Should it? When you have the resources to do so, yes.

CPSC Guidelines do not apply to fitness trail/exercise equipment intended for adult use, provided these are not located on or adjacent to a children’s playground.

National Norms

The fact remains that without any law being applicable to playground safety, you still have the duty to follow the national norms adopted by most entities. Parks, schools, childcare centers, etc., have used the ASTM Standard #F1487 and the CPSC Guidelines #325 for “public use” playgrounds for years, as have most reputable manufacturers.

Another common excuse not to comply with these rules is to claim that one is not considered a “public use” setting. “Public use” can and does include privately-owned property! In fact, it includes all playgrounds except “home playground equipment, toys, amusement rides, sports equipment, fitness equipment intended for users over the age of 12, public use play equipment for children 6-24 months, and soft contained play equipment” (per ASTM definitions). CPSC defines “public” as “parks, schools, child care facilities, institutions, multiple-family dwellings, restaurants, resorts and recreational developments and other areas of public use.” They also make more clarifications, but this is the gist of it. Keep in mind, though, the Guidelines do not apply to “fitness trail/exercise equipment intended for adult use, provided that these are not located on or adjacent to a children’s playground.” What is that distance? It is still up to “professional judgment?” Consider whether any signage states that the intended age range of the user is more than 12 years of age.

The ASTM Standard #F1487 was first published in 1993, while the CPSC Guidelines #325 first came out in 1981 (as Volumes I and II). There have been revisions to both. The current versions are the ASTM Standard #F1487-07ae1 (which has actually been revised four times itself, so be sure you have the correct copy here), and the CPSC Guidelines #325 (1997 revision). We hope it does not take a federal law to get everyone to do their duty and comply with these rules.

Federal ADA (wheelchair accessibility) playground rules must be complied with if playground equipment was installed after 12/20/00.
Photo: Boundless Playgrounds

Public Law

Some entities are presumably aware of the “public law.” In the United States, the relationship between private sector standard developers and the public sector has been strengthened with the 1995 passage of the National Technology Transfer and Advancement Act (Public Law 104-113). The law requires government agencies to use privately developed standards (such as those from ASTM, or American National Standards Institute, etc.), whenever possible. As a result, such private nonprofit standards organizations have a solid foundation.

Numerous states have adopted parts, or all of, the ASTM playground Standards and/or the CPSC playground Guidelines into law, or else some other adaptation of them into law. The following is a list of those states with a general synopsis of what they have enacted into law to protect children at play on the playground.

• Arkansas: Childcare facilities must comply with CPSC as of 9/1/97.California: Public playgrounds must comply with ALL CPSC and ASTM rules regarding playgrounds (1487, 1918, 2049, 1292, etc.) by 1/1/08. Connecticut: State voluntary standard (not mandatory) to comply with CPSC as of 1/1/97. Training is recommended.Florida: Dept. of Education adopted ASTM and CPSC into bylaws. The state offers playground courses to child care centers as part of CEUs.Illinois: Childcare facilities must comply with CPSC for surfacing and similar other requirements. For example, swings need use zones two times the equipment height and six feet use zones for all other equipment. Swing seats must be pliable. No head entrapments. Daily inspections. Michigan: Public playgrounds must comply with CPSC and ASTM as of 9/1/97. Penalties for violations regarding the manufacturer and/or installer.New Hampshire: Childcare facilities must comply with CPSC.New Jersey: The departments of education and community affairs adopted CPSC on 3/23/99. Government and private entities must comply with CPSC in its entirety by 3/23/07. Nonprofits must comply with surfacing requirements and the rest by 3/23/14. All playgrounds built six months after these two remaining effective dates must conform to all rules and regulations.New York: Public playgrounds must comply with CPSC as of 4/25/06. Exempts 1-3 member family residential properties. Penalties are $1,000 per violation ($10,000 max.).N. Carolina: Childcare facilities must comply with CPSC and ASTM. Gravel surfacing is prohibited if users are under three years of age.Oklahoma: Childcare facility standards are less rigorous than ASTM and CPSC. Example: Grass is acceptable as surfacing if equipment is less than four feet high; six inches of loose fill surfacing is acceptable. Swing use zone is two times chain length; six foot or greater use zones for all other equipment. No head entrapments or entanglements.Oregon: Childcare facilities must comply with CPSC for surfacing.Rhode Island: Public schools must comply with CPSC as of 7/1/02.S. Carolina: Childcare facilities must comply with CPSC. Dept. of Education adopted CPSC into bylaws.Tennessee: Dept. of Education adopted CPSC into bylaws. Childcare facilities use CPSC as “guidance.” Use zones must be four to six feet. Surfacing must be type and depths shown in CPSC.Texas: Public playgrounds must substantially comply with CPSC and ASTM (if public funds are used) as of 9/1/97.Utah: Childcare facilities must comply with CPSC and ASTM for surfacing. Use zones must be six feet or greater.Virginia: Childcare facilities must have written playground safety procedures, including information on supervision and maintenance.
• Washington: Dept. of Education adopted ASTM and CPSC into bylaws.

For more information, refer to www.astm.org for the Standards. The Standards that apply to public use entities are:

#F1487-07ae1—public use playground equipment

#F2049-03—playground fencing

#F1292-04—playground surfacing

#F2373-06—playgrounds for children under the age of two

#F355-01—wheelchair accessibility

#F1918-04—soft contained play equipment

#F2075-04—engineered wood fiber surfacing

#F1951-99—wheelchair accessibility over surfacing.

Also, refer to www.cpsc.gov for a copy of document #325 (Public Playground Guidelines).

Federal ADA (wheelchair accessibility) playground rules must be complied with if playground equipment installed after 12/20/00.