Vol. V, No 1, January 2005

Reply to lawyer claiming our “egregious article” about the safety and accessibility of children's soft foam play requires a retraction.

Our November 2004 Leisure eNewsletter included an article, Soft Foam Play Areas Pose Safety Hazard, about the safety of many of the children's soft foam play areas (sometimes also called soft foam playgrounds, sculptured soft play areas or soft playscapes) appearing in enclosed malls and entertainment facilities and how many violate children's civil rights, according to the accessibility requirements of the Americans with Disability Act (ADA).

One supplier had their lawyer write us a letter describing our article as “most egregious” (that's lawyer talk for “extraordinarily ridiculous, reprehensible or bad”). He further requested that we “set the record straight” by retracting the supposedly inaccurate statements in the article and clarifying that our comments did not apply to his client. In our January 2005 Leisure eNewsletter we included an article Egregious article requires retraction? in response to the lawyer's letter as well as contact from another soft foam supplier.

Our reply letter to the lawyer was too long to include as part of that article. We have included here:

Dear Lawyer,

I am replying to your letter where you assert we made egregious statements in our eNewsletter about your client, as well as the soft foam play industry.

It is commendable that your client has a Certified Playground Safety Inspector on staff, uses surfacing that meets ASTM and CPSC guidelines and avoids components that have “sharp corners or edges, pinch points, head entrapment, protrusions, tripping hazards, suspended hazards, and all other common hazards identified by CPSC and ASTM standards for public playground.”

You state that your client's soft foam play systems “are designed with the safety of young children in mind” since, in addition to the above:

  1. There is a minimum of 36 inches between the various components as well as 36” between climbable components and perimeter walls and seating.
  2. No designated play surface is higher than 36 inches in height.

If you check the U.S. Consumer Product Safety Commission “Handbook for Public Playground Safety” (Pub. No. 325) you will find that it states:

  • 5.1.1 “The use zone should extend a minimum of 6 feet in all directions from the perimeter of equipment. . . . If the adjacent designated play surfaces on either structure exceed the height of 30 inches, the minimum distance between the structures should be 9 feet.” (p. 6)
  • 3. “Designated Play Surface – Any elevated surface for standing, walking, sitting or climbing, or a flat surface greater than 2 inches wide having an angle less than 30º from horizontal.” (p. 2)
  • 3. “Use Zone – the surface under which and around a piece of equipment onto which a child falling from or existing from the equipment would be expected to land” (p. 3)
  • 11.3 “Guardrails or protective barriers should be provided on platforms, walkways, landings and transitional surfaces in accordance with the following minimum elevations recommendations.

    “Preschool-Age Children: Since younger children have poorer coordination and balance and are more vulnerable to injury than school-age children . . . an elevated surface should have a guardrail or protective barrier to prevent fails . . . Protective barriers should always be used for platforms that are over 30 inches above the protective surfacing.” (p. 18)

I examined ASTM F1487-01e1 Standard Consumer Safety Performance Specification for Playground Equipment for Public Use, and they mirror the above standards, with the exception, that for play areas where periodic crowding is likely [such as shopping mall soft foam play areas], ASTM recommends a supplemental use zone beyond the specified use zone.

Accordingly, your client's placement of soft foam play components at only 3-foot spacing and components of heights of 36” fails to comply with both the CPSC Guidelines and ASTM standards for the design of play areas for preschool children, the predominate age group that soft foam play areas are designed for and used by.

I visited your client's Web site and observed many play components that appear to exceed the 36” you state is the maximum height of any “designated play surface” your client installs. Per the above information, the CPSC Guidelines basically define “designated play surface” as anywhere a child can stand, not necessarily only the surfaces intended for play.

You state in your letter that your client's “soft foam components are not slippery.” We have a sample of your client's product that we obtained within the past two months. We tested it, and in our opinion it is in fact slippery, especially when you stand on it in socks. All the soft foam play areas we have seen require children to take off their shoes. The photos of installations by your client on their Web site shows the vast majority of children with bare feet or only socks.

You state in your letter that neither CPSC Guidelines nor ATSM standards apply to soft foam play areas.

The CPSC Guidelines state they apply to public playground equipment, with the following definition:

1.1 Scope: “Public” playground equipment refers to equipment for use in the play areas of parks, schools, child care facilities, institutions, multiple family dwellings, restaurants, resorts and recreational developments, and other public use.”

The ASTM Performance Specifications state, “This consumer safety performance specification provides safety and performance standards for various types of public playground equipment. Its purpose is to reduce life-threatening an debilitating injuries.”

Based upon the above, it appears very obvious to us that soft foam play areas in shopping centers and entertainment centers fall within the scope of these definitions and the scope of the Guidelines and standards.

We also find it interesting that you state that your client does comply with CPSC and ASTM; however, when it comes to the height of components or dimensions of fall zones, you assert soft foam play areas are exempt. The purpose of the height and fall zone design standards is to prevent children's injury and death from falls. An April 2001 study by CPSC found that 79% of injuries that occurred on public play equipment involved falls. That is the reason why both CPSC and ATSM limit children's access to high surfaces and why they provide for a 6-foot fall zone. Rather than pose less risk than other types of playground equipment as you assert, soft foam play equipment poses more risk of falls by children, as:

  • it primarily offers components for children to climb on,
  • most of its play surfaces are not horizontally flat, but rather at angles, and
  • it surfaces are slippery for children in socks.

We find it interesting that you made the statement in your letter that your client

“agrees with you [referring to us in our article] that some soft foam play areas have been manufactured by companies that were not sufficiently familiar with playground safety, and some of these have resulted in children getting hurt. This was usually due to components that were built too high or installed to close together, alone with insufficient safety surfacing to meet fall height requirements.”

But then you say your client

“should not be painted with this broad brush,”

when, in fact, by your admissions, your client violates the very height and component separation distance safety standards established by both CPSC and ASTM, the widely accepted and de facto legal design standards for children's play areas in the U.S. It is also interesting that your client has a Certified Playground Safety Inspector on staff who presumably would have been trained in the interpretation and application of CPSC and ASTM and yet your client doesn't fully follow those standards.

You say in your letter that the statement in our article that CPSC and ASTM standards “have become the defacto safety standards based on court decisions” is simply wrong. We cannot agree with you, as a review of case law, as well as legal literature, continually points to these standards, and especially CPSC as being the standard of design and care. For example, in the July 2000 issue of Trial magazine, Edward Steinbrecher in his article, When Playtime Goes Wrong, states (p. 76):

“The most authoritative playground safety standards are published by the U.S. Consumer Product Safety Commission in its Handbook for Public Playground Safety. This publication is the cornerstone of litigation involving dangerous conditions of playgrounds and related equipment. . . Any manufacturer of playground equipment or any public entity operating playgrounds is expected to be familiar with these standards.”

You assert in your letter that the Americans with Disabilities Act (ADA) does not apply to soft foam play areas. Title III of ADA applies to all places of public accommodation, including commercial facilities such as shopping malls and entertainment facilities. There are specific rules for children's play areas. The ADA Final Rules for Play Areas contain the following definitions:

“Play Component. An element intended to generate specific opportunities for play, socialization, or learning. Play components may be manufactured or natural, and may be stand alone or part of a composite play structure.

“Play Area. A portion of a site containing play components designed and constructed for children.”

Soft foam play areas clearly fall within the scope of the ADA Rules for Play Areas, as they are part of public accommodations and are ‘play components' and are located in ‘play areas' as defined by the Rules. There are no exceptions to the applicability of the Rules for any type of play areas in commercial facilities.

ADA requires that there be a 60-inch minimum width accessible route to each type of ground level play component and to 50% of elevated components. The 3-foot spacing your client uses does not meet this requirement.

I commend you on your efforts to make an argument defending your client's practice of not fully following the Federal CPSC Guidelines, the ASTM standards and the Federal ADA law by asserting that they all were developed “before soft foam play areas were commonly in use” and since no specific standards apply to soft foam play areas. Unfortunately (as I'm sure you would admit privately as an attorney understanding how these guidelines, standards and law are written) they apply to all play areas and play components, whether in common use at the time they were written or adopted or not. Exceptions have to be clearly written into standards and laws to qualify as exceptions. In fact, contrary to your assertion, the ASTM standards were recently updated and revised ADA Final Rules for Play Area were only adopted in 2000. In the revised ASTM standards, the definitions and requirements applicable to play areas are unchanged. Soft foam play areas were clearly in common use during these timeframes.

It appears obvious to us why your client, as well as other soft foam play suppliers, close their eyes to the height, fall zone and ADA requirements. If they were to follow them, soft foam play areas would not be an attractive option for malls and other facilities, as they would require too much space.

No, we cannot agree with you that our article was egregious in respect to our description that soft foam play suppliers' statements that their equipment and installations are safe is “marketing hype” and “far from the truth.” Nor can we agree that we need to “set the record straight” by retracting our article, clarifying that our comments do not apply to your client and revising and sending such clarifications to our readers.

Based upon your letter, its admissions as to your client's practices and its unfounded assertions, we find that it is your client's practices which are egregious, as your client is putting their own commercial gain ahead of the safety of children, as well as denying children with disabilities their Federally legislated civil rights to play and socialize with all children.

If you have any comment on the above, I would appreciate a reply within the next two weeks.

Randy White