When a child is injured outside the care of their parents, the person, business, or organization may very well be liable for the damages experienced by the child and his or her parents. A common scenario in accidents involving children is the injury on the playground. It is expected that children young enough to enjoy playgrounds will be allowed to exercise and play if being cared for any period of time. Playgrounds, while safer than they once were, can pose unreasonable danger to the safety of a child if there is inadequate adult supervision or if the playground itself is unsafely designed or installed or age-inappropriate.
Individuals and organizations entrusted with a child owe a duty of care to the child to protect the child’s safety and well-being. Everyone understands that children simply do not have the reasoning capacity and good judgment to look after themselves. More care is required of those watching over pre-schoolers than is required of those watching over high schoolers. Additionally, more care is expected when activities presented to the children are more dangerous. If a daycare, preschool, or school (public or private) fails to provide adequate supervision and a child falls off of the monkey bars, swings, jungle gym, or slide, it is quite likely that the organization will be liable in negligence.
Children are not held to the same level of care as adults. Adults, who through their own actions, injure themselves, most often will be held to account for their own fault, if they pursue a lawsuit in negligence. In contributory negligence states, like North Carolina, their negligence creates a complete bar to their claim, and their negligence will cause them to receive nothing. For example, if an adult were playing, in a careless manner, on a jungle gym at a preschool playground with a group of children that ought to have been supervised, the adult’s carelessness would form a complete bar to recovery. In other states that follow comparative negligence, like South Carolina, the plaintiff’s recovery is decreased in proportion to their level of fault, unless the plaintiff’s fault is 50% or greater, in which case any recovery is barred. If a plaintiff is 20% negligent, their recovery is reduced to 80% of what it would have otherwise been. In the adult on the jungle gym scenario, so long as the preschool is more negligent that the adult in causing the adult’s injury (however unlikely that scenario might be), the adult would be able to recover.
Children on the other hand are conclusively presumed to be incapable of negligence if they are are under seven. From seven to thirteen, there is a rebuttable presumption that they are incapable of negligence. Above fourteen, they are presumed to be capable of negligence. The importance of this doctrine to the child injury case cannot be overstated, especially in contributory negligence cases. Accidents involving children in the playground setting will almost always involve some act by the child that would be considered negligence if committed by an adult, which would bar any recovery in states like North Carolina and reduce the recovery in states like South Carolina.
Even given this lower standard, there are complications. In the case of playgrounds, children may very well injure themselves in a way that increased or reasonable care could not have prevented. For example, a fall from the monkey bars, if the monkey bars were age-appropriate, reasonably designed and installed, may not be preventable, even by the closest supervision. On the other hand, if the same monkey bars were on a playground shared by different age children at different times, and children under seven and too young for this particular monkey bar setup were not supervised appropriately, there likely would be actionable negligence since children under seven are not expected to know better than to climb to unsafe heights.
Another common scenario, where there may or may not be negligence, is interactions among children on the playground. It is completely reasonable that children be allowed to play together on the playground, but, as you might imagine, the amount of supervision reasonably required varies depending on the age, number, and nature of the children and the environment they are in. The younger the children, the more supervision that should be required. The more potential danger that an environment provides, the more supervision that should be required. If a child is known to have violent tendencies or other dangerous behavior, increased supervision should be expected. However, just as there are interactions between children and playgrounds that increased supervision could not prevent, there are interactions between children on the playground that increased supervision may not be able to reasonably prevent. If a child unpredictably injures another child, it may be that no reasonable level of increased supervision could have prevented the injury.
That being said, although child injury cases involving the playground can be highly fact-dependent and raise complicated legal issues, children are understandably treated favorably by the law of negligence.