Title 28 Code of Federal Regulations, Part 35 directive Title ...

Title 28 Code of Federal Regulations, Part 35 directive Title ...

STANDARD OF CARE Life of the Community Defines Legal Standard for Negligence Liability

The standard of conduct of a reasonable person may be established by legislative enactment, administrative regulation, or judicial decision.

In the absence of such legislation, regulation, or judicial decision, the trial judge or jury will apply this "reasonable person under the circumstances" concept to determine the applicable legal standard

of care in a particular case (Restatement 285). In determining whether conduct is negligent, the customs of the community,

or others under like circumstances, are factors to be taken into account, but are not controlling where a reasonable person would not follow them.

For a custom or such common practices to be relevant on the issue of negligence, they must reasonably be brought home to the actor's locality, and must be so general, or so well known, that the actor

must be charged with knowledge of them, or with negligence in remaining ignorant (Restatement 295). WAGONER v. WATERSLIDE, INC.

(Utah App. 1987) Unreasonable Risk? - Jury Issue P injured riding down D's waterslide; foot hanging over side

cut toe on unfinished edge of slide. Jury Verdict for D. Whether waterslide unreasonable risk of harm to D's patrons.

Jury issue whether exposed edge on slide unreasonable or reasonable. Standards to determine unreasonable risks

in the life of community. Unreasonable risks, those which society consider sufficiently great to demand preventive measures.

Reasonable care: repair or warning of actual condition and risk involved.

Duty only if unreasonable risk. Jury found no unreasonable risk, no duty. AFFIRMED. Ortego

v. Jefferson Davis Parish School Board La.App. 1995 CPSC Playground Safety

Standards or Guidelines? P alleged slide unreasonable violated design and safety standards Consumer Product Safety Commission

(CPSC) D: CPSC merely suggested guidelines represented ideal, rather than norm

D: should not be used to determine whether unreasonably dangerous jury found slide NOT unreasonably dangerous

McCarthy v. State N.Y. A.D. 1990 Legislated Standards vs. Agency Rules?

P fall from playground horizontal ladder alleged negligence in design and/or maintenance of ladder State claims court dismissed claim

Appeals: P's expert's testimony clearly inadequate Consumer Product Safety Commission

(CPSC) Public Playground Safety Guidelines not mandatory or meant to be the exclusive standards for playground safety

STANDARD OF CARE EVIDENCE IN PLAYGROUND SAFETY GUIDELINES ELLEDGE v. RICHLAND/LEXINGTON SCHOOL DISTRICT FIVE

S.C. App. representative, who was not trained or licensed as an engineer, eventually modified the monkey bars by removing

the bench and lowering the bars. thin side bars were not intended as a walking surface, neither handrails nor a non-slip surface

was added to the "new" monkey bars. foot slipped on a narrow bar, causing her to fall, and her right leg became trapped between the bars.

testimony and/or documentary evidence" relating to the Consumer Products Safety Commission's (CPSC) guidelines for playground safety

or the American Society for Testing and Materials' (ASTM) standards for playground equipment. CPSC guidelines and ASTM standards,

evidence was relevant to establish the appropriate standard of care. We agree. Evidence of industry standards, customs,

and practices is "often highly probative when defining a standard of care." Safety standards promulgated by government or industry organizations in particular are relevant to the standard of

care for negligence. Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of

care in determining negligence... Courts have become increasingly appreciative of the value of national safety codes and other guidelines issued by

governmental and voluntary associations to assist the trier of fact in applying the standard of due care in negligence cases.

A safety code ordinarily represents a consensus of opinion carrying the approval of a significant segment of an industry,

not introduced as substantive law but most often as illustrative evidence of safety practices or rules generally prevailing in the industry

provides support for expert testimony concerning the proper standard of care. [E]vidence of standards promulgated by industry, trade, or regulatory groups or

agencies may be relevant and admissible to aid the trier of fact in determining the standard of care in a negligence action even though the standards have not been imposed by statute or promulgated by a

regulatory body and therefore do not have the force of law. Violation of standards in such private

safety codes is evidence on the issue of negligence but not negligence per se [i.e., in and of itself; conclusive proof]...

City of Miami v. Ameller Fla. 1985 Violate Agency's Own Standards? P alleged City negligent in placing

monkey bars in public park over hardpacked ground surface failed to use one of recommended standard cushioning materials under monkey bars

P charged city violated playground industry, as well as own, standards for proper cushioning ground surface under monkey bars

City has duty to maintain parks in condition reasonably safe for public use not insurer of safety of all those who use

free public parks standard is negligence, not strict liability Rosario v. New York City N.Y.A.D. 1990

Asphalt Dangerous Condition? Playground Surfacing Regulation 7/85, P, 7 yrs, fell 5-7.5ft from slide on asphalt surface

P broke arm; alleged D negligent in failing to provide cushioned surface beneath slide ISSUE: whether D breached standard of

care to protect children from injury due to falls by failing to install cushioned surface around playground equipment

No authority in jurisdiction for liability based on existence of hard, artificial surface beneath playground equipment Traditional rule: properly constructed &

maintained asphalt surface does not constitute an unsafe & dangerous condition so as to subject the owner of a playground to liability

P's experts cited D's specifications for 1.5" padding under playground equipment date, scope, & application to existing City playgrounds not disclosed

Questions as to existence of standard from which City duty might be derived and whether City complied with standard precludes dismissal

On alleged facts, if proven, rational jury could find applicable standard in effect at time of injury and City failed to comply with its own standard

reversed, new trial ordered Blankenship v. Peoria Park District Ill.App. 1995

Statutory Immunity Defines Legal Duty Over Internal Rules Park District rules & regulations required lifeguard to be present at all

times during posted swim hours to direct & safeguard swimmers Violation of a statute or ordinance designed to protect human life or property

is prima facie (on its face, in and of itself) evidence of negligence Legal duty normally not established through rules or internal guidelines

failure to comply with self-imposed regulations does not impose on municipal bodies & employees a legal duty

Issue: whether Park District immune under Tort Immunity Act Act grants general immunity from liability arising from a failure to supervise Here, complete absence of supervision,

not mere inattention or lack of supervision Court: conclude no supervision within meaning of Tort Immunity Act BRADEN v. WORKMAN

Mich.App. 1985 Custom - Certain, Uniform, & Notorious? P, age 18, broke neck head-long dive into D's manmade lake.

P: negligence no lifeguard, no backboard. Verdict for D. P's expert: lifeguard or trained person for less than 25 & backboard required,

admitted not universally implemented. D: expert's recommendations seldom used at Mich lakes. Despite Red Cross & other guidelines,

standards majority state park swimming facilities, no lifeguards or backboards. Absent expressed requirement in law or

regulation jury determines what, if any, lifesaving persons & equipment necessary. Industry custom

admissible to prove negligence if custom certain, uniform, & notorious. 1975 standards not notorious limited distribution no campgrounds. AFFIRMED.

Hames v. State of Tennessee Tenn. 1991

Industry Standard Requiring Weather Warnings? P's husband, 36, struck by lightning on state park golf course

No effort made to clear course, no warnings. Course operated under USGA rules USGA makes suggestions to warn golfers

of lightning danger USGA recommends posting notices outlining dangers & precautions to minimize danger

Expert testimony: no recognized standard existed that golf courses be equipped with lightning proof shelters, or with warning

devices Although some golf courses in state parks are equipped with shelters few had warning devices.

8 courses operated by State 3 have weather shelters, not lightning proof. Golf Pro testified had not played or

practiced where warning sirens in place such devices are used only to stop tournaments Claims Com:

no industry standard requiring storm shelters or warning devices Common knowledge tells one that

lightning is dangerous the absence of a horn is not concurrent negligence No evidence industry standard required a

policy to clear course absence of policy did not create dangerous condition on course

No signs, but common knowledge tells one that lightning is dangerous Customary conduct, while not conclusive, can gauge whether ordinary care

exercised by D & P USGA rules are applicable to tournament play; do not apply here

D's conduct did not fall below applicable standard of reasonable care thus no negligence. REVERSED & DISMISSED Maussner v. Atlantic City Country Club

New Jersey, 1997 Chosen Lightning Protection Must be Properly Utilized Signs posted re "our golf course

evacuation plan" implemented "our weather monitoring system" Act of God - unusual, extra ordinary & unexpected

not prevented by any amount of foresight Whether D's negligence coincides with an Act of God modern technology rendered lightning

storms more predictable Issue: Whether D properly implemented its own safety procedures

where D has taken steps to protect patrons against lightning duty of reasonable care to take steps correctly

Duty to post sign detailing what, if any, safety procedures utilized if none, posted so, use at own risk if evacuation plan, must be reasonable & posted

Bier v. City of New Philadelphia Death & injuries resulting from lightning

strike on rented picnic shelter with metal roof Summary judgment to City; no liability for "Act of God"

P's expert affidavit: outdoor shelters not protected by a lightning protection system are attractors to lightning strikes reasonable person aware of need for

lightning protection systems to be installed on metal-roofed outdoor bldgs used by public Proximate Cause could include defendant

negligence concurrent with Act of God not Act of God if proper care & diligence on defendant's part would have avoided act

Reasonable Minds Could Differ. Jury could reasonably find negligence in not installing lightning protection on metalroofed shelter was concurrent cause

If duty & breach, Defendants may show that injuries would still have occurred in spite of any preventive measures taken If so, negligence not proximate cause of

injury. Lightning interceding superseding cause, relieving D of liability for negligence. REVERSED & REMANDED

Sallis v. Bossier City slide over steel shaft in basepath

Whether unreasonable risk of harm known to City shaft did not have protective rubber covering hidden from view just below dirt

Base anchors one method used to secure bases side stakes bent, replaced by stakes of heavier guage metal

3 sets of stakes for dimensions of baseball & softball rubber caps on unused base anchors to keep dirt our & prevent injuries

City rented field to softball assn. but retained responsibility for field maintenence

Fields dragged, but P&R dept did not check whether protective caps displaced, or anchor shafts exposed by prior games or field maintenance

Unprotected steel shaft in basepath constitutes unreasonable risk of harm wear & tear on field common No evidence of similar multiple peg use

(3) in other recreational programs, or info re safety of this type of installation Players & Assn unaware

of multiple set of anchors installed City knew, or should have known, unprotected base anchors posed unreasonable risk of harm

failed to implement procedure to insure covering of unused shafts P&R maintenance employees: occasionally struck or ran over base

anchors while mowing & grading fields Coaches & officials not informed of additional base anchors

Nor were unused base anchors checked To determine if weather, field maintenance, or games uncovered unused stakes or dilodged

protective coverings Asn & Asn director had no knowledge of dangerous condition City had never told Asn of base anchors

in base path Injury not caused by Asn playing on muddy field but sliding into unprotected base anchors outside scope of danger playing on

muddy field Shipley v. Recreation & Park Commission of East

Baton Rouge Safer Alternative Exists in Real World? Legal Standard for Negligence Liability Louisiana Appellate Court, 1990

Issue: whether anchored base used in softball game was unreasonably dangerous Plaintiff's Expert: all anchored bases

dangerous should use unsecured throw down base, or base similar to home plate, i.e., flat to ground

Expert admitted recommended bases would require change in rules to accommodate base movement, players

sliding past base Court: while such bases may make softball safer would NOT be considered

in determining whether this base unreasonably dangerous Court: would only examine this base within rules of actual game NOT imaginary game

which does not exist Court: this base conformed to industry standards ASA required bases

firmly affixed to ground, not thicker than 5 inches Court: this anchored base had same dimensions

of strapped down base recommended by plaintiff's expert Court: evidence of "safer alternatives" at time of accident

NOT sufficient to establish anchored base was unreasonably dangerous Some alternatives NOT available at time of accident

KOPROWSKI v. MANATEE COUNTY Fla.App. 1988

Common Practice Ignored, Injury Foreseeable P struck by large rescue-type surfboard (10'long, 30-50 lbs.)

P walking past guard stand; guard left board leaning against stand on windy day airborne board struck P's leg.

Guard conceded possibility that wind could have blown board 25' from where he placed it.

Common practice to prop rescue boards against stand, but if negligently placed could flip over. Boards had been observed being blown 6'.

Negligence: NOT necessary that one be able to foresee the exact nature of the harm done

it is only necessary to foresee that some injury is likely to result Guard stated, when windy, boards locked

up or laid flat Guard conceded boards windblown when not properly secured, previous instances.

Later Case Studies DUTY TO FOLLOW ESTABLISHED PROCEDURES TO WARN BEACHGOERS OF LIGHTNING

STORMS Seelbinder v. County of Volusia, (Fla.App. 05/31/2002), forty-seven-year-old plaintiff Marlene Seelbinder (Seelbinder) was seriously

injured when she was struck by lightning as she stood on a public beach once a landowner assumes a duty to provide warnings of weather conditions to

those authorized to use the premises, a legal duty may arise to implement such measures in a non-negligent fashion. The County has undertaken to give

beachgoers warnings of the risk of lightning that relies on human observation and weather station monitoring. Once an identified storm risk is deemed

sufficient to warrant warnings, the procedure prioritizes those persons in the water. There was no evidence offered that the

County's employees failed to exercise reasonable care in executing the procedure, merely that the procedure failed to protect Seelbinder.

ENTRAPMENT DANGER IN PLAYGROUND REPORTED BUT NOT CORRECTED Clark v. Fair Oaks Recreation and Park

District, 106 Cal.App.4th 336, 130 Cal.Rptr.2d 633 (Cal.App. Dist.3 02/14/2003), plaintiff Burgin Clark, aged 10, broke his leg in an accident on playground equipment owned by defendant

October 12, 1998, District Park Supervisor Rodney Melton, a certified playground inspector, performed a safety audit of Village Park's equipment.

orally and in writing, that he had found many violations of the 1991 CPSC guidelines that could cause lifethreatening or permanently disabling accidents ("priority one" hazards),

including the risk of entrapment from the improper spacing between the rungs of the arch climber.

District argued that the 1991 guidelines did not shift the focus from head entrapment to entrapment per se; rather, both sets of guidelines, correctly understood, spoke only to head

entrapment. [t]o establish that the injury-causing risk created by the dangerous condition was reasonably foreseeable, the plaintiff need

show only that the general character of the event or harm was foreseeable, not that the precise nature of the accident was so.

appeals court concurred with the trial courts finding that the arch climber presented a life-threatening hazard of entrapment; thus, an accident in which entrapment caused serious injury was reasonably foreseeable.

1991 guidelines' definition of the word entrapment includes any condition that impedes withdrawal of a body or bodily part that has penetrated an opening.

Melton and Hinson testified in videotaped depositions that, in the case of an arch ladder, the risk of injury would most likely be to a leg.

appeals court, found substantial evidence supported the trial court's finding that the injury which occurred was a reasonably foreseeable risk produced by the

dangerous condition of the arch climber. FEAR DRIVES NON-WOOD BASEBALL BAT CONTROVERSY

2006 Bill has been reintroduced for 2008 in the New Jersey State Assembly (Bill No. 3388) to enact "Steven's Law" prohibiting the use of non-wood bats in certain organized games in which minors

are participants Sanchez v. Hillerich & Bradsby Co., 104 Cal. App. 4th 703; 128 Cal. Rptr. 2d 529 (12/19/2002),

alleging that the design and use of this particular bat significantly increased the inherent risk in the sport of baseball that a pitcher would be hit by a line drive.

appeals court found Sanchez had presented sufficient evidence to establish that use of this particular bat significantly increased the inherent risk that a pitcher would be hit by a line drive and that the

unique design properties of this bat were the cause of his injuries. undisputed that the bat in question, the Air Attack 2, was designed to cause the ball

to come off the bat at a higher launch speed than with wooden bats and older metal bats. 1998 correspondence from the NCAA

indicated that the Baseball Rules Committee was unanimously convinced that bat performance was indeed a safety risk to pitchers and infielders

April 5, 2002, CPSC determined "available incident data" was "not adequate to show increasing injuries to pitchers over the period of time that bat performance increased."

CPSC found data from other sources, including the NCAA and Little League, was not "clear or detailed enough to determine that an increase in injuries has

occurred with an increase in bat performance." CPSC concluded that "available incident data are not sufficient to indicate that nonwood bats may pose an unreasonable risk of injury.

United States Baseball v. City of New York, 509 F. Supp. 2d 285 (S.D.N.Y. 2007),

whether the New York City Council acted constitutionally by excluding the use of metal bats by high school age students use in competitive baseball games.

alleged that the City had no empirical evidence to show that the "Bat Ordinance" regulation would meet the stated safety objective, i.e., to protect high school age students from the risk of injury.

court would find the Bat Ordinance constitutional as long as there was "a rational relationship between the disparity of treatment and some legitimate

government purpose." court would uphold the legislative classification to ban metal bats "if there is any reasonably conceivable state of facts

that could provide a rational basis for the classification." appropriate role of the courts was not to "judge the wisdom, fairness, or logic of

legislative choices. court found general agreement that "many existing metal and composite bats do produce more hits than wood bats."

city council could rationally determine that more hits with metal and composite bats could "result in an increased risk of injury to infielders from hard-struck balls."

found "a conceivable rational relationship exists between the Bat Ordinance and the legitimate purpose of public safety," "the link between a perceived danger and

the Bat Ordinance" as "a classic legislative judgment that the City Council could constitutionally make. AGE APPROPRIATE PLAYGROUND

SAFETY GUIDELINES Ossip v. Village Bd. of Hastings-On-Hudson, (N.Y. Sup. Ct., 2006)

under her mothers supervision when she fell from a set of monkey rings in a playground operated and maintained by defendant Village

Village argued that the safety consultant had limited his opinion to criteria which applied to playgrounds that are suitable for children 2 to 5 years of age.

Village argued that Ossips playground consultant had erroneously failed to address the standards provided by CPSC Guidelines for playgrounds suitable for 5 to 12 years old.

CPSC Handbook for Public Playground Safety differentiates between preschoolage children (two through 5 years) and school-age children (5 through 12 years).

Muriel was five years old at the time of this accident, one month short of her sixth birthday and just several weeks short of the start of kindergarten,

the court found the monkey rings met the appropriate standard for children 5 to 12 years old: no evidence of any negligence or an

unreasonably dangerous condition on the playground at the time of Muriels injury, the state court dismissed Ossips negligence claims against the Village.

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