What does “$20M in playground injuries” really mean?

Paige’s Note:  One of the problems in discussions of playground safety and risk is the poor quality of playground injury statistics.  The word “injury” can cover many things, from minor cuts and scrapes to broken limbs.  This makes the number *appear* high, an easy shrill headline for media outlets who have little interest in actually understanding the statistics.  There is a similar problem with liability and insurance discussions.  What does the headline “City shells out $20M over kids’ playground injuries” actually mean?  Should we be alarmed?  Is is high or low, good or bad?  Fortunately, we have Susan Solomon to explain!

Good News: A Report on a Report: Susan G. Solomon

Is the glass half empty or half full?  I was struck by that eternal question when I read the ClaimStat Alert report that the New York City Comptroller Office issued in March. The subtitle, “Protecting Kids on NYC Playgrounds,” does not immediately explain that this is a compilation of personal injury claims brought against the city during the period 2005 to 2014. It covers all of NYC’s almost 1000 playgrounds.The New York Post immediately made a half empty assessment in its coverage of the release of the report. Their headline screamed “City shells out $20M over kids’ playground injuries.”

I suggest that there can be a totally different conclusion from the same data, effectively the half full approach.  I believe that this is a remarkable document, one that dispels many concerns about liability held by those who commission or design playgrounds. It also shows the shallowness of arguments that urge tort reform as a prerequisite for flourishing of innovative playground design.

Before we look at the information in the report it is critical to note that it comes from the city comptroller. It seems obvious that that office would know where injuries occur and how much is paid for settlement or a   judgment.  For those of us who have long sought this evidence from parks departments  (and have often felt that we were being stonewalled), this report makes clear that some of us were looking in the wrong place. We now have a new focus of where to locate data (hiding in plain sight?), something I intend to pursue from other major (and even smaller) American cities although New York appears to be the first to collect and disseminate this information so systematically.

It is heartening that the claims were spread throughout the city. No playground had more than 7 claims in the almost decade long period under review. Fifteen playgrounds had between 4 and 7 claims.  The rest had only 1 or 2 actions.   We might anticipate, for instance, that two newer and “risky” parks might have quickly popped up on the claims list.  We might expect Tear Drop Park with its high slide and craggy boulders to be cited; or we might think the slippery rocks at WaterLab in Brooklyn Bridge Park’s Pier 6 would have resulted in quite a few suits.  Neither of these venues is even on the list.  Their respective surrounding parks, Battery Park and Brooklyn Bridge respectively, have a single claim each.

A closer look reveals there were 577 claims for the entire nine years span.  Compare that to possible number of users: If only 20 kids came to each playground each day that would be over 7 million kid visits per year!!  The report does make a significant point in indicating there has been a 7 percent drop in NYC residents under 18 years old (2005 to 2013) at the same time that the annual number of claims has gone from a low point of 45 (2005) to a higher figure of 69 in 2014.  This is a 50% increase and  statistically there are more claims and less children. But given the number of users, this is a tiny per capita shift.  On one hand, we can say that the number of claims has “skyrocketed” but, on the other hand, we have to recognize that the real number is still extremely small.

The number $20 million seems like- and certainly is- a large amount of cash.  It, too, needs a context.  In one year alone (2012), the city paid out $485.9 million for all of the  “personal injury and property damage tort settlement and judgments” against it.  When it comes to the specifics in the playground ClaimStat information, it appears that the city (which is self-insured, like many large municipalities) settled almost all (530) of the claims.  Some of these were holdovers from the 1990s and some that were not settled between 2005 and 2014 will show up in later reviews.  For the settled cases, the overall average settlement was $38,952, a number that was skewed by a single settlement of $3.5 million; that settlement pertained to a 1999 claim by a 19 year old who was swinging and hit her head on a fence. The fall zone would have been sufficient for a younger child but did not account for young adults. Without that settlement, the average payout would have been about $30,000.  That is not a small sum but it is also not an insurance busting one.  Individual practitioners can take comfort that their own insurance would have covered similar claims and that tort “caps” or other reforms would not be necessary for them to be fully covered.

Overwhelmingly, most of the playground injuries resulted from gaps in maintenance, not from the design or implementation of equipment. Almost 40% of all claims were for “missing/defective matting” surfaces under equipment; “cracked or broken surfaces”; and “improper maintenance”.  The ClaimStat Alert report does not detail specific injuries but it seems likely that most were broken arms and legs when we look how the Comptroller arrived at several recommendations.  Taking their lead from the American Academy of Orthopedic Surgeons, the Comptroller’s Office suggests that “we can reduce the likelihood of injuries and reduce liability to the taxpayer” if we use “softer surfaces- such as mulch, shredded tires, or sand.”  These recommendations appear to validate Prof. David Ball’s extensive research that points to rubber safety surfacing as the likely culprit in broken limbs of the upper body.

The NYC ClaimStat document gives us hope that municipalities are not suffering from excessive litigation or from onerous financial burdens.  Let’s hope that other cities will come forth and present their own data.  Evidence so far has been spotty.  For example, Reporter Steve Lopez of the Los Angeles Times (February 1, 2014) recently asked his city for a listing of all claims against the city since 2007.  He found that “a few of the cases involve potholes or crumbling playgrounds” but the dominant claims were for injuries from broken pavements (and don’t we think no one walks in LA?).   If we begin to see similar investigations of other large cities- or better yet, if cities reveal their data forthrightly- then we will know for sure if the positive implications of the New York ClaimStat report are typical and instructive for other large urban areas.

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