QUESTIONS, ANSWERS and FALLACIES ON PLAYGROUND SAFETY

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ASTM stands for the American Society for Testing and Materials.
ASTM creates safety standards for many industries, including playgrounds for public use, home use, children under two, soft-contained playgrounds, playground fencing, playground & sports surfacing, trampolines, sports equipment and facilities, amusement rides, etc.
Some or all of the playground safety standards are law in some states, and for some entities who have adopted it into their bylaws.

The current version of the ASTM Public Use Playground Standard is #F1487-11, published in November 2011. The current version of the ASTM Public Use Playground Fencing Standard is #F2049-11.

Although ASTM is a voluntary, non-profit organization, the Standards themselves are considered by some to be "voluntary" yet by others to be the "standard of care" (and are adopted into law in some states!). ASTM is always looking for potential members from various sectors. Interested parties are always welcome to attend meetings. They can become a member and learn the extensive process that we go through to make a Standard. Member categories include Manufacturers ("Producers"), Owner/Operators ("Users"), Consultants and General Interest. It is a forum for all concerned parties to express their own interests and ideas so that we can all come to an agreement on each issue at hand. This is a time-consuming process where, like laws, changing them reduces injuries and saves lives.

CPSC stands for the (United States) Consumer Product Safety Commission.
CPSC created the U.S. - CPSC Safety Guidelines on Public & Home Playground Equipment. CPSC also issues a checklist on Soft Contained Play Equipment (SCPE), as well as recalls of specific products of all kinds.
The CPSC "Public Playground Safety Handbook" #325 ("Guidelines") are law in some states and for some entities who have adopted it into their bylaws.

The original version of the CPSC Guidelines #325 was first published in 1981. The next revision was published in September of 1991. The revision after that was published in September of 1994. The revision after that was published in September of 1997, but was re-released in November of 1997 with minor corrections. The next revision was released on April 21, 2008. The current revision was released in November, 2010.


QUESTION:
Do we have to follow any rules on playground fencing?

ANSWER:
In Ohio, a little boy exited a swing set that was next to a parking lot, he went into the street and was run over by a truck and killed. Supervision was not the problem. Lack of proper fencing was.

In Raleigh, NC, two 3 year olds climbed a 5-foot fence and escaped from a major child care center. They were found 35 minutes after being reported missing — and after they crossed a four-lane road. Supervision was not the problem. Lack of proper fencing was.

In Connecticut, a little boy wandered away from a playground that was near a pond. He fell into the pond and drowned. A jury awarded the parents millions since the pond was an “attractive nuisance” near the playground. Supervision was not the problem. Lack of proper fencing was.

Worldwide, vehicles are crashing into playgrounds.

The list goes on and on....

The ASTM #F2049 Playground Fencing Standard and the CPSC #325 Guidelines address playground fencing. There are MANY OTHER publications that require/recommend particular types of fencing to surround a playground as well.

The rules on fencing actually PROVIDE a way to have a playground where none existed before!

If the ASTM #F2049 Playground Fencing Standard or the CPSC #325 Guidelines are adopted into law in your state (like California for example), then by law you have to follow those sets of rules. If it's not a law in your state, then it is still prudent to comply with the Standard. The ASTM Standards and CPSC Guidelines are the Standard for the Industry, and thereby become the Standard of Care.

The ASTM #F2049 Playground Fencing Standard was first published in the year 2000. CPSC references this ASTM Standard in Section 2.1 (see chart) of the #325 CPSC Guidelines. The recommendations and requirements stated are saving children's lives by keeping them contained and supervised, keeping the vehicles from crashing into the playground, keeping children from running into bodies of water and drowning, running into a street or parking lot and getting run over, etc. A fence is not always required! Also, the playground needs to be checked for compliance to the fencing Standard whether you have an existing fence or not! If certain hazards on the list (in the Standard) are within 200 feet of the playground equipment or its Use Zone(s), then the playground has to have a specific type of fence. The fence cannot be climbable, which eliminates common opening sizes of chain link fencing (UNLESS you have smaller mesh so it is not climbable, where the parallel wires are not more than 1.25" apart, and the horizontal points are not more than 1.75"). It cannot have bolts, gate latches, etc., that are protrusions within 54 inches above grade. When applicable, certain sides of the playground have to pass the test for vehicular impact with a compliant fence or a barrier. Refer to ASTM Standard #F2049-11 for MUCH more.

QUESTION:
How long does it take for the ASTM Standards or CPSC Guidelines to take effect?

ANSWER:
It is standard in this industry to allow approximately 6 months to expect anyone to adhere to any Standards or Guidelines. Keep in mind that not everyone will be aware of rules that apply to playgrounds, sports facilities, etc. It may become a question of whether or not they "knew or should have known" of the rules or Standard of Care for the industry they may be in.

QUESTION:
We are BUYING NEW EQUIPMENT and they say it complies, so why should we get a design or bid evaluation performed before we purchase, and a site audit after it is installed?

ANSWER:
Our evaluations and audits are performed purely with safety, play value, and lowest cost in mind for the owner. You and the supplier can then feel comfortable to proceed with making the sale.

With a "Certificate of Compliance" from Safety Play, you can not only rest assured that your site is hazard-free, but you may also save money on your insurance premiums!

Most suppliers have done a MUCH better job in complying with the Standards and Guidelines. They SINCERELY believe their interpretations are correct, and many times they ARE. There are still many times when changes have to be made on new equipment though. Keep in mind that although an IPEMA certification is a great start, it only promises compliance to most (not "all") Sections of ASTM. It does NOT verify compliance to any of the CPSC or Federal ADA rules which you must also comply with. IPEMA shows compliance according to how the unit was set up at the time of assembly at the plant, on the individual components. You might actually have it designed or installed differently than what was tested, and therfore be out of compliance. It also does not take into consideration human error in manufacturing, packaging, shipping, installation, etc. Only a third party auditor can check for true compliance ON site. Safety Play, Inc. strongly recommends IPEMA certified products! Just be aware of all of the aspects of it, that's all.

QUESTION:
WE INSPECT OUR OWN sites, and even have our own Certified Playground Safety Inspector (CPSI) or child care inspector. Isn't that enough?

ANSWER:
Although you show an above average amount of interest by going to this extent, there are some concerns to address. First, if your inspector is using anything short of the CORRECT 13-piece tool kit, then the inspection/audit is not being performed the right way. After doing THOUSANDS of site audits, not one site has ever passed the INITIAL audit for Class 1 hazards, including those sites that have BRAND NEW equipment! Every time, there has been at least Class 1 hazard(s) (life-threatening) on the site. Some individual pieces may have passed, but the overall site never has, until modification corrections were suggested and then made, resulting in a Certificate of Compliance being issued.

With a "Certificate of Compliance" from Safety Play, you can not only rest assured that your site is hazard-free, but also save money on your insurance premiums!

Don't assume that being newly certified to inspect playgrounds brings the novice to the same level as someone with years of audit, design, expert witness, or manufacturing experience. Auditing your own sites (or even having a manufacturer's rep. perform this service) might award you a "bias self-inspection" accusation in court. Although having your own CPSI is a big plus, and is considered a necessary step, like all of the other safety options available to you such as safety labels, supervision, etc., they are not cure-alls by themselves. If you have your own CPSI then you can KEEP it at the level of safety achieved AFTER a third party has audited your site(s) since you are probably not consistently in the business of designing, auditing, and being an expert in this field. It is ideal to have someone with extensive experience performing a variety of audits in a variety of locations, is without conflict of interest or bias, has expertise in manufacturing & modification recommendations, is insured, etc. See the "QUALIFICATIONS" below.

It also makes a great deal of difference in the quality of your audits, program reviews, etc., to have someone who is an active voting member of ASTM, and contributes to the CPSC, so they can have a BETTER INTERPRETATION of the Standards and Guidelines. The goal is to be certain that you do not miss ANYTHING in your audits, otherwise it can hurt you in the courtroom, but more importantly, a child can get hurt or killed!

Ask your auditor if they are performing the required maximum 50 lbf. (pounds of force) head entrapment pull tests, checking for sign/label deficiencies (see below), entrapment, protrusions, whirl velocities, ADA compliance, playground fencing, etc. Are they using a checklist that is updated with the most current ASTM Standards and the CPSC Guidelines that lists EVERYTHING there is to check for? MOST IMPORTANTLY, do they have the CORRECT INTERPRETATION of the STANDARDS AND GUIDELINES? Promises can be made, but don't find out the truth the hard way.

YOUR BEST BET: It's best not to try to become an expert at it all, especially with your initial audits. Like using doctors, lawyers and mechanics, leave the job with an expert consultant!

IMPORTANT: SEE THE NEXT QUESTION FOR PERSONAL LIABILITY!

QUESTION:
Can we be held PERSONALLY LIABLE by auditing and inspecting sites ourselves?

ANSWER:
YES! The person performing the audit or inspection CAN be held liable. Many times government employees are covered only so far with Governmental (Sovereign) Immunity. Why? Immunity covers staff for "SIMPLE negligence" but not "GROSS negligence". There are cases where the employer was NOT being sued, but the employee WAS. This is also due to immunity applying to the employer, and that the employer had a legal limit (cap) to pay out for lawsuits which limited the amount of the award. Therefore, if the employee is personally sued, they would get legal representation from their employer and the award or settlement can be paid up to the amount of the cap, but then the employee is liable for the balance... risking liens on their wages and assets! Check with your employer. This is another reason to hire an outside auditor... TO TRANSFER THE LIABILITY! For more on this subject please reference NPSI materials ("Play It Safe", page 217, paragraph 2). Please note that it is still recommended that you have at least one CPSI on staff.

QUESTION:
WHAT QUALIFICATIONS should an auditor have?

ANSWER:
Your auditor should;

  1. be INSURED for ERRORS and OMISSIONS, PROFESSIONAL and GENERAL Liability. Specify ERRORS and OMISSIONS, PROFESSIONAL and GENERAL LIABILITY coverages for your playground consultant!
  2. have experience in specific MODIFICATION RECOMMENDATIONS so that you can FIX the hazards found INEXPENSIVELY if you choose to do so, without creating other hazards (which is quite common to do). YOU NEED A REPORT THAT YOU CAN DO SOMETHING WITH!
  3. have at least five years of experience performing AUDITS (more detailed than inspections).
  4. NOT be your own employee or a manufacturer's representative. This is where it is crucial to get a third party auditor who will not be bias, and is without a conflict of interest, not someone who has become complacent with site problems to not see them after a while. If you have your own CPSI, then they can KEEP it at the level of safety achieved after the third party auditor is finished!
  5. be a Certified Playground Safety Inspector (CPSI) who will also make a good EXPERT WITNESS for your side. Remember, you are not just buying a report. You are also paying for someone who will be admitted as an expert witness to testify for you (without a conflict of interest or bias), will consult while being properly insured, etc.
  6. be a voting and ATTENDING member of ASTM in order to help understand the proper interpretations and rationale of the Standards and Guidelines. Many of these are easily misinterpreted. Standards and Guidelines will conflict on some issues and are contradictory. You need to know how to handle each situation.
  7. offer a "Certificate of Compliance" so that you can not only rest assured that your site is hazard-free, but also save money on your insurance premiums!

QUESTION:
WE CAN'T AFFORD the audits(s), safety programs, signs, labels, etc. How do we handle safety concerns?

ANSWER:
Children's safety, health, and lives depend on compliance to the applicable rules. When you are served with a lawsuit, you will HAVE TO come up with the money to defend it, which will be MANY TIMES the cost of the audits, labels, etc. You are much more LIABLE without the audit and a safety plan! Labels are only $1.00 each and may likely prevent a "Failure to Warn" claim in a lawsuit, and may prevent an injury or death!

SOLUTION; start with auditing selected sites so you can at least show you are doing your best to reach your end goal of having hazard-free recreational areas, which IS possible! Take care of your Class 1 Hazards and purchasing LABELS first! Then handle the Class 2 and 3's, possibly in the next budget year if you cannot handle it all at once any other way. It gets your playgrounds safer, looks good in court, and is great for public relations as well. You should start as soon as possible with a safety program. Then you can proceed with other levels of assistance, etc.

With a "Certificate of Compliance" from Safety Play, you can not only rest assured that your site is hazard-free, but may also save money on your insurance premiums!

QUESTION:
WHY HAVE SIGNS or LABELS? Kids won't (or can't) read them, parents won't pay attention, etc.

ANSWER:
Even if the above were true, proper signage or labeling has the following benefits;

QUESTION:
AREN'T COMPLIANCE TO ASTM AND CPSC THE SAME?

ANSWER:
NO. There is a lot of information found in one document that is not addressed in the other. There are many cases where one document is much more stringent than the other. Also, there are reasons why many things are left out, one being that, in the beginning, we wanted to have a Standard that addressed the MOST SERIOUS concerns instead of waiting longer to cover all aspects of every type of lesser degree of known hazards. Some issues are either not covered or not clarified in the latest revisions of either document. Note that neither one covers the latest Federal ADA rules that you must follow.

With a "Certificate of Compliance" from Safety Play, you can not only rest assured that your site is hazard-free, but you may also save money on your insurance premiums!

QUESTION:
Isn't it a MATTER OF INTERPRETATION of the ASTM Standards and CPSC Guidelines as to whether it passes or fails?

ANSWER:
Yes and No. In some cases it is very easy to have different interpretations of the same issue. If you are not deeply involved in this field it is easy to have misinterpretations. However, we are trying to get the Standards and Guidelines to be clearer so this will not happen as often. We HOPE that they are getting better with every revision. On the other hand, most measurements and performance descriptions that are stated are quite clear and not up to interpretation (for example, that barrier wall is either 38" high (above the platform) or it is not!). See "QUALIFICATIONS" for your auditor, above. Don't be misled to think that misinterpretations, bias, or a FIRST or SECOND party opinion are okay. It might result in SERIOUS INJURIES, DEATH, lawsuits, and HUGE modification expenses! Go with a THIRD party for your safety audits!

With a "Certificate of Compliance" from Safety Play, you can not only rest assured that your site is hazard-free, but you may also save money on your insurance premiums!

QUESTION:
Why don't they HAVE ONE STANDARD or GUIDELINE and NOT REVISE THEM?

ANSWER:
There is an enormous amount of various types of equipment, designs, surfacing, etc. In the beginning at ASTM, if we waited until we thought of all the hazards and then addressed them all we would probably still not have a Standard or Guideline. It was decided that the longer we waited to get them out, more children would be hurt or killed. So, the most hazardous causes of accidents were addressed first, as well as the most common types of equipment, etc.

New designs appear yearly, which sometimes brings new concerns and it may result in new or different types of injuries. As injuries are reported, ASTM tries to create new rules to reduce or eliminate these injuries. We also try to foresee what we can, within reason, and handle it as best the subcommittee can.

QUESTION:
OUR EQUIPMENT PASSED WHEN IT WAS INSTALLED BUT THE STANDARDS or GUIDELINES CHANGED. How do we keep up?

ANSWER:
Manufacturers, installers and owners have been doing a MUCH better job with complying in recent years. We know that they SINCERELY believe that the equipment, etc. passed, and it may very well have. However, our detailed third party site audits have commonly found that at the time of the installation, at least one piece of equipment at each site had violations against the Standards and/or Guidelines that were in effect at the time of installation. The MAIN POINT here is to realize that the problems may not have been due to a changed Standard or Guideline, or even due to the manufacturer, installer, or owner either! It may have been due to wear, environment, vandalism, or any combination of these. Try to be open-minded when looking at the problems and not place the blame too quickly.

With a "Certificate of Compliance" from Safety Play, you can not only rest assured that your site is hazard-free, but you may also save money on your insurance premiums!

Your auditor should be able to advise of INEXPENSIVE MODIFICATIONS! This will save you money on repairs!

PROPER interpretations are key here. The best thing to do is to have your equipment and site audited by someone who is qualified enough so that you can be certain about this (see above "QUALIFICATIONS").

To make SURE that you are not buying problems, have these services done by a third party, un-bias person that is without a conflict of interest! The manufacturers and products that tend to have a good history of safety will receive higher recommendations from us for you to rely on for your final purchases.

QUESTION:
Our equipment and site is GRANDFATHERED IN, so we don't need to comply with ASTM, CPSC and ADA, right?

ANSWER:
There is no such thing as being "Grandfathered In" for owner/operators. Manufacturers do NOT have the duty to update or modify equipment that is already sold IF it was in compliance with the current Standards and Guidelines at the time of sale. Some ASTM Standards, CPSC Guidelines and ADA accessibility rules are "common knowledge" by now for most entities (owner/operators), and sometimes considered the "Standard Practice" (which can dictate the "Standard of Care") and you should make the effort to comply. You are not EXEMPT from complying with the current Standards and Guidelines. It may depend on whether or not you knew about these rules and when they came into effect to allot your budget to modify equipment, etc., accordingly. You must also keep up with whatever changes take place in those Standards and Guidelines. Try to remember, changes and updates are for the safety of the public, and will reduce your liability as well. Some states have adopted CPSC and/or ASTM into law, and some entities have even adopted these into their own laws or rules. For example, if the law is not in effect until next year, the owners must still try to comply now to avoid a negligence lawsuit based upon the existing "established norms (or rules) for the industry", which are sometimes considered the "Standard Practice" (which can dictate the "Standard of Care"). So don't wait until an accident occurs (and before it becomes law) to find out that you are still liable and at an extremely high risk!
Use the rules to your advantage by complying with them and using them as a Defense!

QUESTION:
Can't we just LIVE WITH THE RISKS of not complying with ASTM or CPSC?

ANSWER:
This means "living with the hazards on my playground", and NO, it's not worth it. Children should not be exposed to any hazards, especially LIFE-THREATENING HAZARDS! Go as far as you possibly can with safety and MAKE THE EFFORT! Then, if an accident occurs, you can show that you were concerned enough to hire a third party auditor, take care of the life-threatening hazards first even if it is a portion at a time due to lack of budget, etc.! It IS manageable. This looks great in court too! It means an immediate reduction of exposure to hazards for the users, and reduces your liability for the least cost when you identify and repair (or discard as a LAST resort) the Class 1 Life-Threatening Hazards, followed by Class 2's, etc.!

It IS possible to have fun, challenging, and hazard-free equipment for the kids!

Keep checking out this site for future questions and answers as they come in! Send us your questions so we can respond and possibly include them here.

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Updated on 7/7/2014