Law Review: Lead Paint on Playgrounds

By Kozlowski, James C. | Parks & Recreation, August 2007 | Go to article overview

Law Review: Lead Paint on Playgrounds


Kozlowski, James C., Parks & Recreation


The plaintiff must prove a preponderance of the evidence to win lead poisoning cases.

The injured plaintiff in a personal injury lawsuit bears the burden of proof to allege sufficient facts which could establish by a "preponderance" of the evidence (or better than 50-50) that the defendant's alleged negligence was indeed the "proximate cause" of the plaintiff's injury. In other words, more likely than not, the plaintiff would not have been injured or injured as badly, if it weren't for the alleged negligence of the defendant. Anything less that 50-50 under such circumstances, plaintiff's negligence claim should fail for lack of evidence.

In general, landowners owe a legal duty to their invitees (in other words, those authorized to enter and use the premises for public or business purposes) to keep the premises reasonably safe under the circumstances. A landowner may be liable for ordinary negligence where an unreasonably dangerous condition on the premises causes injury to an invitee. To impose liability for ordinary negligence, a judge or jury must find, more likely than not, the injury sustained by the invitee would not have occurred in the absence of an unreasonably dangerous defect on the premises.

Lead paint on playground equipment has been generally recognized as a potentially unreasonably dangerous condition on the premises. In 1996, the U.S. Consumer Product Safety Commission (CPSC) issued a report indicating "public playground equipment could have chipping and peeling lead paint, which is a potential lead poisoning hazard primarily for children 6 years old and younger." According to the report, an analysis of a number of playgrounds in various cities found levels of lead in the paint on older playground equipment that were "high enough to be recognized as a federal priority for lead hazard control measures."

While noting that deteriorating lead paint in older homes was the leading cause of lead poisoning in children, the report found "the effects of ingesting lead are cumulative." As a result, the CPSC report concluded that exposure to lead paint from older playground equipment could also contribute to the lead poisoning hazard.

Lead poisoning in children is associated with behavioral problems, learning disabilities, hearing problems, and stunted growth. CPSC found that in some of the paint chips from playground equipment, the levels of lead were high enough that a child ingesting a paint chip one-tenth of a square inch-about the size that could fit on the tip of a pencil eraser - each day for about 15 to 30 days could have blood lead levels at or above the 10 microgram per deciliter amount considered dangerous for children, especially those six years old and younger.

At the time of its 1996 report, the CPSC did "not consider playground equipment with lead paint that is intact and in good condition a hazard." Rather, the CPSC found paint containing lead created a hazard only once it deteriorated due to weather or normal wear and tear, creating paint chips that could be ingested by young children. As noted by the 1996 CPSC report, "[t]he 1992 Residential Lead-Based Paint Hazard Reduction Act sets 0.5 percent lead by weight as the level of lead in paint that should be targeted for lead hazard control." As a result, the CPSC recommended that "local and state jurisdictions give high priority to controlling the lead paint hazard from playground equipment with chipping and peeling paint containing lead at or above the 0.5 percent level."

The CPSC report also advised concerned parents to "look for deteriorating paint on playground equipment":

Parents concerned about this hazard can look for deteriorating paint on playground equipment. If they find deteriorating paint, they should contact the playground's owner or local officials and ask them to test the paint. Parents should also make sure that children do not put their hands in their mouths while playing on equipment with deteriorating paint and wash their hands thoroughly afterward. …

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