By Doyice Cotten

In 2018, two-year-old girl lost her little toe while sliding down a sliding board into a splash pad at Buzzards Bay Park in Bourne, MA. At the time she went down the slide, there was a vertical crack about a foot long in the slide. The toe caught in the crack and was sliced off.  [A splash pad  is a recreation area, often in a public park, for water play that has little or no standing water.]

The girl, who is now 4, still struggles with typical play activities because the loss affects her balance. It is really unknown at this point as to how it will affect her later in life.

The family recently filed suit on behalf of the child seeking $944,519 to cover medical bills and provide compensation for the trauma of losing the toe. Named in the suit are:

• The town of Bourne, Massachusetts;
• Weston & Sampson, the company that designed and engineered the splash pad;
• Green Acres Landscape & Construction Co. Inc., which installed the playground equipment; and
• Kompan Inc., which manufactured and sold the slide on which the girl was injured.

Police officers who responded noted that caution tape that might have been used to block the slide entrance as well as a sign that said “Do Not Use” were found on the ground. The complaint states that Bourne Police and Fire departments reported that the slide previously was shut down, but not on the day the girl used it. The park had reopened only about six weeks earlier after undergoing renovations, including installation of the splash pad.

The MacDonald family seeks a jury trial for six counts against the four defendants.  Some of the allegations include

• Bourne, the owner of the park, was willful, wanton and reckless in its conduct by not maintaining the slide or posting notification of its disrepair.
• Kompan breached its implied warranties and was negligent for not adequately testing the slide to make sure it was safe for public use.
• Green Acres Landscape Co. and Weston & Sampson also were negligent for not properly installing and purchasing a slide that was reasonably safe for its intended use.

Of course, since this is a park and open to the public, there was no waiver of liability. There is, however, the Massachusetts Recreational User Statute that protects land owners in certain circumstances.

Massachusetts General Law Section 17C. (a) Any person having an interest in land including the structures, buildings, and equipment attached to the land, including without limitation, railroad and utility corridors, easements and rights of way, wetlands, rivers, streams, ponds, lakes, and other bodies of water, who lawfully permits the public to use such land for recreational, conservation, scientific, educational, environmental, ecological, research, religious, or charitable purposes without imposing a charge or fee therefor, or who leases such land for said purposes to the commonwealth or any political subdivision thereof or to any nonprofit corporation, trust or association, shall not be liable for personal injuries or property damage sustained by such members of the public, including without limitation a minor, while on said land in the absence of wilful, wanton, or reckless conduct by such person. Such permission shall not confer upon any member of the public using said land, including without limitation a minor, the status of an invitee or licensee to whom any duty would be owed by said person.

In light of this statute, the city would probably avoid liability for negligence, but would still be liable if their action (or inaction in this case) was deemed willful, wanton, or reckless. The other three defendants would not be protected by the statute.

Risk Management Takeaway

Regular, daily inspection of property and equipment is a must for any recreational facility. Someone should have had the duty to inspect, at least do a walk-though of the park, prior to opening. If this had been done, the caution tape and the “Do Not Use” signs on the ground would have been spotted and replaced – no accident, no lawsuit.

Photo Credit: Thanks to Anthony J via Flickr.