Isabella Kern, 4, was playing in the sprinkler in a playground in Queens when she ran barefooted on to the black rubber matting. She almost immediately suffered severe burns that required a week in the hospital. Her family’s lawsuit against the city should be an obvious matter of negligence — it is obviously foreseeable for kids will run from the sprinkler area on to the matting. However, the city is now suing the parents and alleging that they were negligent.
It would seem obvious that you should not have black matting that can burn feet of children during the summer. These mats can reach 160 degree temperatures — more than enough to cause serious burns upon contact.
Rather than settle a lawsuit with the family and hang their heads in shame over their negligence with children, the city attorney has filed a suit against the victims — alleging that signs warned parents not to have children run barefooted on the mats. The parents insist that the signs were not added until after the accident.
The warning signs are obviously intended to create a basis for the city to allege assumption of the risk and/or contributory negligence. Given the fact that children are running in a sprinkler near by, I fail to see the sign as a complete defense — even if it were posted at the time of the accident. It is obviously foreseeable that children will take off their shoes and run to the mats. The decision to use this material was an act of gross negligence and the decision to sue this family is one of the most shameful acts that I have seen in years from municipal attorneys. Such counter lawsuits are often viewed as a way to force settlements. Whoever approved this lawsuit is, in my view, a legal menace who is serving neither the city nor the public in such abusive lawsuits.
There have long been complaints about New York playgrounds using the material, here. There have been other cases around the country (here) that should put park officials on notice that these mats are unacceptable for playgrounds. Past cases include:
* Emma Regjaj (23 months) with severe burns from mats at St. Catherine’s Park in Manhattan in 2008;
* Parker Wands (16 months) with second degree burns on mats at Ditmars Park in Queens in 2008;
* Kian Mehran-Lodge (14 months) with second degree burns at Van Voorhees Playground in Brooklyn in 2004; and
* Ryan Mazzola (18 months) with first and second degree burns at Midland Beach Playground in Staten Island in 2003.
Playground equipment can also reach unacceptably high temperatures. If the city is not going to replace such equipment with cooler materials, it needs to put screen over the playground area to diffuse direct sunlight on the mats and equipment.
At the present time, the city maintains such dangerous conditions that a small girl was in the hospital for five days and couldn’t walk for nine days.
Yet, the city blames Isabella’s grandmother.
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