PHA May Be Liable for Playground Injury

Facts: A resident’s daughter tripped and fell in a playground owned, operated, and maintained by the local PHA. The daughter was playing with a soccer ball in the playground. At one point, the ball traveled into a nearby planter. The daughter went into the planter to retrieve the ball and, in attempting to exit the planter, tripped over one of the metal wickets in the wicket fence surrounding the planter and fell, injuring her right arm. The resident sued the PHA for negligence.

The planter’s wicket fence was erected between 2003 and 2006. The landscape architect employed by PHA testified that he drew or supervised the drawing of the blueprints for the playground where the daughter fell and additionally stated that, due to his education and experience in designing playgrounds and landscaped areas in the PHA’s developments, he was familiar with “industry and government standards for playground and landscape design,” that he either personally drew the plans or approved the drawings of the other designers, and that “the location of the planted area adjacent to the play area” and the “installation of a wicket fence around the planted area” were “standard landscape design feature[s]” that didn’t “violate any known safety standards, rule, or guidelines related to landscape or playground design.”

The resident’s expert witness on industry standards for playground design, however, asserted that the design and location of the wicket fence deviated from industry standards by violating a specific section of the state building codes.

The PHA asked the court for a judgment without a trial in its favor because of the fence’s alleged conformity to safe and accepted standards of playground and landscape design and because it had no duty to protect the daughter from, or warn her about, the wicket fence, because the fence was an open and obvious condition that wasn’t inherently dangerous. 

Ruling: A New York trial court denied the PHA’s request.

Reasoning: The court stated that it is well established that an owner is under a duty to maintain its property in a reasonably safe condition under the existing circumstances. In support of its claim that the fence conformed to safe and accepted standards of playground design the PHA offered only the affidavit of the designer, who asserted that “the location of the planted area ... and the installation of a wicket fence around the planted area” are “standard landscape design feature[s] ... in conformity with good and accepted landscape and playground design practices and [do] not violate any known safety standards, rules or guidelines related to landscape or playground design.”

The court stated that such self-serving and “[b]old conclusory assertions, even if believable, are not enough” to establish grounds to grant judgment without a trial. The court also pointed out that rather than stating that no safety standards have been violated, the designer himself stated that the design doesn’t violate any “known” safety standards. This fact, with the resident’s expert’s assertion that there was a deviation from industry standards, creates a factual issue as to whether the PHA breached its duty of care to the daughter.

With regard to the PHA’s argument that the fence was an open and obvious condition that wasn’t inherently dangerous, the court stated that while an owner has no duty to warn of an open and obvious hazard or dangerous condition, the PHA does have a duty to maintain the premises in a reasonably safe condition. Here, the resident isn’t claiming a breach of the duty to warn, but rather a breach of the “analytically distinct” duty to “maintain the premises in a reasonably safe condition.” According to the court, because liability may be based on a breach of the duty to maintain reasonably safe conditions even where the obviousness of the risk negates any duty to warn, finding a hazardous condition to be open and obvious isn’t fatal to a negligence claim.

• Ruiz v. New York City Housing Authority, December 2013