HOA Playground Safety
Homeowner associations are not required to provide play areas or special facilities for children. However, if provided, playgrounds must be safe. Assembly Bill 1144 was signed into law in 2006 and became effective on January 1, 2008. It put into effect Health & Safety Code § 115725 et seq, which addresses the safety of playgrounds, including those in common interest developments with playgrounds accessible to the public. Section 1.3 of the Public Playground Safety Handbook includes all HOAs, not just those with playgrounds open to the public. When choosing an appropriate surfacing for your community playground, looks can be deceiving. While the beautiful colors of the poured-in-place rubber matting may seem attractive, it is not the best fall surface. The U.S. Consumer Product Safety Commission accepts the following as a playground fall surface when installed to the correct depth:
- Wood mulch
- Double-shredded bark mulch
- Uniform wood chips
- Shredded rubber loose fill
- Fine sand
- Course sand
- Fine gravel
- Medium gravel
The first four items are recycled products, as are rubber mat products. The above eight items are in the order in which they are rated for fall attenuation. The poured-in-place matting and stationary rubber mats have been reported to have a higher incidence of broken bones.
Installation of Equipment. State regulations also require that anyone who installs playground equipment must have the equipment installed under the direct supervision of the manufacturer, or a Certified Playground Safety Inspector must inspect the equipment before use. In addition, you will also need to have a regularly scheduled safety inspection.
Certified Inspector. California playground safety regulations require a Certified Playground Safety Inspector to inspect and conduct a safety audit of all playgrounds by October 1, 2000. Then, the operators/owners must implement changes in the design, installation, inspection, maintenance, and supervision of their playgrounds that the Inspector identifies as necessary to comply with the regulations' requirements.
Training. Regulations also require that owners/operators train their personnel in the design, installation, and maintenance of their playground equipment. This means ensuring that the personnel have read and understood the requirements established by the regulations before participating in the playground's design, installation, or maintenance.
Recommendation: Associations with playgrounds, including those not open to the public, should take steps to keep them safe at all times. Playground equipment should be regularly inspected and maintained. All safety hazards should immediately be repaired per manufacturer specifications. All surfaces should be kept clean and safe. Because the applicability of playground statutes to homeowner associations is unclear, boards should consult legal counsel on how closely they should follow Public Playground Safety guidelines.
Playground Maintenance
All eight materials listed above are cheaper and easier to maintain than poured-in-place matting and stationary rubber mats, especially wood products. Sand and gravel are attractive to animals as giant litter boxes, but wood is not. When the wood degrades, it turns to mulch. It can be placed in your landscape areas rather than purchasing mulch. The sand and rubber products have special requirements which add to the overall cost of the replacement. Maintenance specifications for playgrounds include some of the following:
- Keep the area around the equipment free and clear from all objects and materials that could injure participants. Visual area checks around the play equipment for objects and materials that could cause injury should be conducted at least (3) times weekly in the summer and once (1) per week in the winter.
- Inspect the equipment for stability and exposed footings, and tighten all bolts and nuts. Inspections should be conducted monthly, and fasteners should be tightened every two (2) months or as needed.
- Inspect all equipment for rust and touch-up paint every six (6) months or as necessary.
- Wipe down all equipment with warm water and soap solution once per week or as needed.
- Ensure that all matting materials are free of dirt and debris. Clean as necessary.
- Monitor surface compaction.
Inflatable Bouncers
QUESTION: Can an HOA ban jumpers, bouncers, slides, etc., without it being in the CC&Rs or bylaws? Many HOAs allow owners with children to have parties and hire jumpers to place in the common area.
ANSWER: Yes, they can be banned. Regarding the common areas, boards have the power to regulate activities. They can do so because governing documents put common areas under HOA control, and reducing liability is a key element of a board's duties.
Injuries to Children. According to the Consumer Product Safety Commission, injuries related to bouncers are on the rise. They estimate more than 100,000 bouncer-related injuries were treated in emergency rooms from 2003 to 2013, including 12 deaths. The Child Injury Prevention Alliance noted that inflatable bouncers can lead to broken bones and concussions and estimated that hospital emergency visits are now at "more than 30 children a day, or about one child every 45 minutes."
Potential HOA Liability. If an owner holds a bounce party in his backyard and a child is injured, the association won't be dragged into the litigation. However, if the party is in the common areas, the association can be sued even though it was the owner's party. Accordingly, boards are interested in protecting the association from potential liability related to bouncers.
Adopt Rules. Associations don't necessarily need a rule banning bouncers since a list of prohibited activities could be lengthy--no bouncers, no trampolines, no archery, no weapons, no serving alcohol to minors, no dangerous activities, etc. In addition to being lengthy, such restrictions can be difficult to define. Is running across a greenbelt a hazardous activity and therefore banned? Is using a stick to hit a pinata a weapon? Even so, a short list of prohibited activities may be appropriate.
Recommendation: Associations with common areas that lend themselves to children's events should talk to legal counsel about limiting liability for such events. That could include insurance and a signed hold harmless/indemnity agreement. In addition, boards can adopt a list of the more dangerous activities they wish to restrict and incorporate it into the reservation agreement so members will know in advance what they can and cannot do. Boards need to be cautious about how they word restrictions. Otherwise, they could trigger discrimination claims against families with children.
ASSISTANCE: Associations needing legal assistance can contact us. To stay current with community association issues, subscribe to the Davis-Stirling Newsletter.