AS ILLUSTRATED BY THE CASES DESCRIBED HEREIN, a review of reported court decisions involving landowner liability for recreational injuries in general, and public playgrounds in particular, indicates liability is the exception, rather than the rule. Generally, the legal duty of care owed by landowners to invitees (i.e., those expressly or impliedly encouraged to enter the premises) is to inspect and repair or remove known or discoverable hazards within a reasonable time. When repair or removal is impossible or impractical, landowners are required to provide an adequate warning of hazards on the premises, unless the general scope of the risk would be open and obvious through the reasonable use of one's senses.
Negligence liability for an alleged defect on the premises also presupposes the existence of an unreasonable danger on the land under the control of the defendant. Within the context of landowner liability for ordinary negligence, an unreasonable danger is one in which the risk of injury is over and above the level of acceptable risk in society. Further, an unreasonable danger is one which is known or discoverable by the defendant landowner, but which would not be known or apparent to the injured plaintiff. Conversely, a danger would not be considered unreasonable and form a basis for negligence liability when the general scope of the risk is equally known or apparent to both the defendant and the plaintiff in a particular situation, e.g., the risk of injury associated with falling from an otherwise reasonably safe piece of playground equipment.
While the landowner must act reasonably in maintaining the premises for recreational use, those using the premises must also act reasonably in looking out for their own personal safety. In this regard, the reasonable child standard is defi ned by children of similar age, education and experience. Generally, the risk of injury associated with falling from heights is considered to be an open, obvious, and assumed risk for anyone old enough to be at large. Accordingly, within the context of public playgrounds, in the absence of any unusual hidden hazard, the risk of injury associated with falling from a reasonably safe piece of playground equipment is typically considered an open, obvious, and assumed risk for recreational users of any age. Under such circumstances, there would be no legal basis for imposing negligence liability on the landowner.
The cases described herein illustrate the reasoning applied by many courts in determining whether landowner liability for a playground injury is precluded under general legal principles governing negligence liability, including limited immunity under a state recreational use statute.
In the case of Kane v. Landscape Structures, Inc., 309 Ga. App. 14; 709 S.E.2d 876; 2011 Ga. App. LEXIS 321 (4/5/2011), plaintiff Stephen Kane, age 9, was seriously injured when he fell while attempting to climb playground equipment in Mountain Park, a Gwinnett County (Georgia) park. The playground at Mountain Park contained play equipment for children of all ages, including the "Infant Maze" for toddlers, and swings, slides, and other structures for older children. Kane had visited the playground many times. The "Infant Maze" consisted of a series of 31-inch vertical panels containing "cutouts of various shapes and sizes for the entertainment of toddlers [with] handholds to help toddlers maintain their balance as they play." In addition, connected to the panels, the Infant Maze contained four posts supporting a seven-foot-high slanted roof.
On the day of his injury, Kane noticed several older children were climbing up and jumping from this roof structure within the Infant Maze. The older children sitting atop the roof structure encouraged Kane to join them. To do so, Kane had to stand on his left foot atop one of the one-inch-wide panels and swing his right foot upward toward the roof. Simultaneously, Kane had to reach his right hand toward the older children on top of the roof so they could pull him up. …