Playground injuries in Charlotte, North Carolina
As parents, we attempt to protect our children from anything and everything that may cause them harm. Unfortunately, we naively place our trust in the city, county, apartment complexes, and even the homes of friends to construct and maintain safe playgrounds. And when an injury arises from a playground and injures your child, it hits home like no other type of injury.
Thousands of children are injured yearly at playgrounds in North Carolina due to improper construction, improper maintenance, or the improper manufacturing design of a playground component. Many of these injuries go beyond sprains and breaks, and even result in paralysis or death. These cases become even more complex as an injured child may live with a handicap for life. It is important that your attorney understands the necessity of dealing with experts and physicians to obtain the maximum settlement for your family and child.
At the Law Offices of David Sheehan, we understand the importance of zealously representing you and your child. Contact our Charlotte Office to set up a free consultation with a Playground Injury Attorney today.
Who owned and controlled the playground decides which body of North Carolina law applies
In North Carolina the first question in a playground injury case is who owned or occupied the ground and the equipment, because a different body of law attaches to each answer. A privately owned playground, at an apartment complex, a church, a licensed child care facility or a private home, is governed by premises liability. Since Nelson v. Freeland, 349 N.C. 615 (1998), an owner or occupier owes a duty of reasonable care in maintaining the premises for the protection of lawful visitors, and the old division between invitees and licensees is gone. Trespassers were deliberately left outside that duty, and their position is now set by the Trespasser Responsibility Act in Chapter 38B rather than by Nelson.
A city or county playground raises governmental immunity, which is waived only in the limited way Chapter 160A and Chapter 153A allow. A claim arising from the negligence of a State officer, employee or agent acting within the scope of that office or employment is not filed in court at all: under the Tort Claims Act, G.S. 143-291, it goes to the Industrial Commission, which may make an award only if it finds negligence by the State employee and finds no contributory negligence on the part of the claimant or the person on whose behalf the claim is asserted. G.S. 143-299.2 caps what the State may pay cumulatively to all claimants on account of injury and damage to any one person arising out of any one occurrence at $1,000,000.
A claim about the equipment, the fall surface or the installation is a product liability claim under Chapter 99B against a manufacturer or seller. Where the playground belongs to a licensed child care facility, G.S. 110-91(6) adds a further layer, requiring outdoor equipment at such a facility to be child size, sturdy, free of hazards that pose a threat of serious injury to children engaged in normal play activities, and in good repair. That requirement is tied to licensure and does not travel to playgrounds generally. One incident routinely produces two or three of these claims at once, against different defendants and on different deadlines.
North Carolina's recreational use statute protects some private landowners, and never a city or county
Under G.S. 38A-4(a), an owner of land who directly or indirectly invites or permits any person to use the land without charge for educational or recreational purposes owes that person the same duty of care owed a trespasser, subject to a duty to inform direct invitees of artificial or unusual hazards of which the owner has actual knowledge. The same subsection says that nothing in the chapter is to be construed to limit or nullify the doctrine of attractive nuisance.
On most playground facts the exclusions matter more than the rule. G.S. 38A-4(a) does not apply where a charge is made for the use; it does not apply to an owner who invites or permits use of land for a purpose for which the land is regularly used and for which a price or fee is usually charged, even if no fee was charged on that occasion; and it does not apply to an owner whose purpose in extending the invitation or granting the permission is to promote a commercial enterprise. A playground offered as an amenity by an apartment complex, a shopping center or a fitness business will often sit outside the chapter for that last reason, which is why the statute is raised in defense far more often than it decides anything. G.S. 38A-2 narrows the ground itself: land means real property, land and water, but not a dwelling and the property immediately adjacent to and surrounding that dwelling, so a swing set in a back garden is not within the chapter at all.
The chapter also never reaches local government. G.S. 38A-2 defines an owner as any individual or nongovernmental legal entity holding a fee, leasehold interest or legal possession, together with that person's employees and agents. A city, a county, a local board of education and the State all fall outside that definition, so Chapter 38A gives them nothing. Whatever protection they have comes from governmental immunity instead, which is a different analysis with different exceptions.
A trespassing child may still recover, under the narrow exception in G.S. 38B-3
G.S. 38B-2 states the general rule bluntly: a possessor of land, including an owner, lessee or other occupant, does not owe a duty of care to a trespasser and is not subject to liability for any injury to a trespasser. G.S. 38B-3 then lists three situations in which a possessor may be subject to liability notwithstanding that rule. The statute is permissive throughout: an exception opens the door to a claim that would otherwise be barred, it does not establish liability.
The exception that carries most playground cases is the second, harms to trespassing children caused by an artificial condition. It is limited in two ways before the elements are reached. It applies only to a child trespasser, which G.S. 38B-4 defines as a trespasser who is less than 14 years of age or who has the level of mental development found in a person less than 14, and it applies only to an artificial condition on the land, which playground equipment is and a natural feature is not. All five elements must then be present: the possessor knew or had reason to know that children were likely to trespass at the location of the condition; the condition is one the possessor knew or reasonably should have known involved an unreasonable risk of serious bodily injury or death to such children; the injured child did not discover the condition or realize the risk involved in it or in coming within the area made dangerous by it; the utility to the possessor of maintaining the condition and the burden of eliminating the danger were slight compared with the risk to the child; and the possessor failed to exercise reasonable care to eliminate the danger or otherwise protect the injured child.
Chapter 38B took effect on 1 October 2011 and applies to causes of action arising on or after that date. Before it, the same ground was covered by the common law attractive nuisance doctrine set out in Broadway v. Blythe Industries, Inc., 313 N.C. 150 (1985), whose elements the statute closely tracks, and Chapter 38A expressly leaves that doctrine intact. The recurring fact pattern is unfenced or unsecured equipment on ground where children are known to play unsupervised. The other two exceptions in G.S. 38B-3 can also apply on the right facts: injury resulting from the possessor's wilful or wanton conduct or intentionally caused by the possessor, and the discovery of a trespasser in a position of peril or helplessness followed by a failure to exercise ordinary care.
A North Carolina city or county is immune only for governmental functions, and then only so far as it has waived immunity
Governmental immunity is narrower than it is usually described. It protects a city or county against liability for the negligence of its employees in the exercise of a governmental function; where the activity was proprietary, immunity never attached in the first place and the unit answers as a private defendant would, insurance or no insurance. Whether operating a particular park or facility is governmental or proprietary is worked through the framework in Estate of Williams v. Pasquotank County Parks and Recreation Department, 366 N.C. 195 (2012), which begins with whether the General Assembly has designated the activity and, if it has not, asks whether the service is one traditionally provided only by government, whether a substantial fee is charged, and whether any fee charged generates a profit.
Where the function was governmental, the waiver statutes are permissive and their effect is measured by the cover actually bought. G.S. 160A-485 authorizes a city to waive its immunity by the act of purchasing liability insurance, waives immunity only to the extent the city is indemnified by the insurance contract, treats participation in a local government risk pool under Article 23 of Chapter 58 as the purchase of insurance, and bars any judgment against the city in excess of its policy limits. G.S. 153A-435 does the corresponding work for counties, again to the extent of the insurance. Each statute also lets the unit adopt a resolution deeming a funded reserve to be the same as the purchase of insurance, waiving immunity only to the extent the resolution provides and in no event beyond the funds available in the reserve. G.S. 115C-42 allows a local board of education to waive immunity by securing liability insurance and waives it only to the extent the board is indemnified, reaching only claims arising after the insurance was procured and while it is in force; that section carries no risk pool language of its own, so the point cannot simply be assumed from the city statute.
Each of these statutes leaves the unit every defense a private litigant would have, contributory negligence among them. In practice the first document worth obtaining is the policy or pool agreement, because its terms, exclusions and limits define the outer edge of what a governmental function claim can recover.
Equipment and surfacing claims run through Chapter 99B, and North Carolina recognizes no strict liability
Where the equipment, the fall surface or an installation failed, Chapter 99B governs. G.S. 99B-1.1 provides that there shall be no strict liability in tort in product liability actions, so fault has to be proved. For a design claim, G.S. 99B-6(a) requires the claimant to prove that at the time of its manufacture the manufacturer acted unreasonably in designing or formulating the product and that this conduct was a proximate cause of the harm, and then to prove one of two further things: that at the time the product left the manufacturer's control it unreasonably failed to adopt a safer, practical, feasible and otherwise reasonable alternative design or formulation, or that the design was so unreasonable that a reasonable person aware of the relevant facts would not use or consume a product of that design. G.S. 99B-6(b) sets out the factors that bear on whether the manufacturer acted unreasonably, including the magnitude of the risk, the user's awareness of it, compliance with government standards and the feasibility of alternatives.
G.S. 99B-4 bars liability altogether in three defined situations, and each carries conditions that are easy to state too broadly. The first requires both that the use giving rise to the action was contrary to express and adequate instructions or warnings delivered with or appearing on the product, and that the user knew, or with the exercise of reasonable and diligent care should have known, of those instructions or warnings. The second requires that the user knew of or discovered a defect or dangerous condition inconsistent with the safe use of the product and then unreasonably and voluntarily exposed himself or herself to the danger. The third requires that the claimant failed to exercise reasonable care in using the product and that the failure was a proximate cause of the occurrence. Applied to a young child, each of those conditions has to be measured against what that child could actually have known and appreciated.
G.S. 1-46.1 bars an action for damages for personal injury, death or damage to property based upon or arising out of an alleged defect or failure in relation to a product where it is brought more than 12 years after the date of initial purchase for use or consumption. Because that period runs from the purchase rather than from the injury, it can expire before a child is ever hurt, and it frequently ends claims about long-installed equipment. The CPSC Public Playground Safety Handbook and ASTM F1487 are voluntary standards rather than North Carolina law, so neither creates a duty by itself; departures from them are offered as evidence of what reasonable design, installation, surfacing and inspection require.
A child's own carelessness is judged by age under North Carolina's rule of sevens
Contributory negligence is a complete bar in North Carolina, but it is filtered through age before it is applied to a child. A child under seven cannot be contributorily negligent as a matter of law. The incapacity is conclusive, and no evidence about that particular child's maturity, intelligence or experience will overcome it: Walston v. Greene, 247 N.C. 693 (1958). Between the seventh and fourteenth birthdays the child is presumed incapable, but that presumption is rebuttable, and the defendant carries the burden of proving that a child of the plaintiff's age would ordinarily have the discretion, judgment and mental capacity to discern and appreciate circumstances of danger: Hoots v. Beeson, 272 N.C. 644 (1968). From the fourteenth birthday the child is presumed to have sufficient capacity to be sensible of danger and the power to avoid it: Welch v. Jenkins, 271 N.C. 138 (1967). The pattern jury instructions carry the framework at N.C.P.I.-Civil 102.13 and 104.25.
Even where a child between seven and fourteen is found capable of negligence, the standard applied is not the adult one. The duty is to use the care a reasonably careful child of the same age, discretion, knowledge, experience and capacity would use in the same or similar circumstances, and proximate cause is measured against what such a child could have foreseen. A defendant may separately contend that a supervising adult was negligent. That is a different question from the child's own capacity, and it bears on the adult's own claim rather than deciding the child's. Under the Tort Claims Act the point is sharper again, because G.S. 143-291(a) permits the Industrial Commission to make an award only on a finding that there was no contributory negligence by the claimant or the person on whose behalf the claim is asserted.
The child's deadline and the parent's deadline are not the same
A negligence claim in North Carolina carries a three-year limitation under G.S. 1-52(16), and the cause of action does not accrue until bodily harm to the claimant becomes apparent or ought reasonably to have become apparent, subject to the outer limit in the same subsection that no cause of action accrues more than 10 years from the last act or omission of the defendant giving rise to it. G.S. 1-17(a) treats a person under 18 as being under a disability and allows the action to be brought within the time limited after the disability is removed, so a child's own negligence claim ordinarily remains open into early adulthood. G.S. 48A-2 fixes 18 as the age of majority.
The parent's claim runs on its own clock. A claim for medical expenses incurred on the child's behalf during minority belongs to the parent rather than to the child, and the child's minority does not extend it. Other periods are indifferent to the child's age as well: the 12-year cut-off in G.S. 1-46.1, which runs from initial purchase; and the periods in G.S. 143-299, which bars a Tort Claims Act claim unless it is filed with the Industrial Commission within three years after accrual, or, where death results from the accident, unless the personal representative files the wrongful death claim within two years after the death. Where a child dies, the wrongful death action under G.S. 28A-18-2 is brought by the personal representative of the estate and must be commenced within two years of the date of death under G.S. 1-53(4). No deadline in a playground case should be assumed to wait for a child to turn 18; each one has to be fixed separately and early.
What the claim can cover, and why a North Carolina court has to approve a child's settlement
A child's own claim in North Carolina can cover pain and suffering, permanent injury, scarring and disfigurement, care needed after the child turns 18, and impaired earning capacity. Because a child has no earnings history, future loss is established through expert evidence about the injury's effect on capacity rather than through wage records. Punitive damages are not part of an ordinary negligence case: Chapter 1D requires clear and convincing proof of fraud, malice or wilful or wanton conduct related to the injury, and where they are awarded G.S. 1D-25 limits them to three times the amount of compensatory damages or $250,000, whichever is greater, with the trial court required to reduce a larger verdict to that maximum. Providers of medical services may assert liens against the recovery, and G.S. 44-50 provides that the lien shall in no case, exclusive of attorneys' fees, exceed 50% of the amount of damages recovered.
Settling a child's claim is a separate exercise from settling an adult's. A person under 18 cannot bind himself or herself to a release, and a settlement of a minor's claim, including one agreed before any suit is filed, is not enforceable against the child unless it has been investigated and approved by the court: Sigmund Sternberger Foundation, Inc. v. Tannenbaum, 273 N.C. 658 (1968). The child appears through a general or testamentary guardian, or, where there is none, through a guardian ad litem appointed under Rule 17 of the Rules of Civil Procedure, and the court reviews the terms from the child's standpoint rather than the parent's or the insurer's. A release a parent signs alone does not bind the child.
On the litigation side, G.S. 7A-243 makes the superior court division the proper division for trial where the amount in controversy exceeds $25,000 and the district court division the proper division at or below that figure, and G.S. 1-82 places venue in a county in which a plaintiff or a defendant resides at the commencement of the action, which for a Charlotte claim is usually Mecklenburg County. Injury matters at the firm are handled on a contingent fee basis. The written fee agreement sets out how litigation costs and expenses are handled, and a client may remain responsible for costs and expenses whether or not there is a recovery.
Common questions
Can I sue the City of Charlotte or Mecklenburg County over a playground injury?
It depends first on what the unit was doing, not on what it insured. Governmental immunity covers only the exercise of a governmental function; where the activity was proprietary, immunity never attached and the unit answers like a private defendant. That question is worked through Estate of Williams v. Pasquotank County Parks and Recreation Department, 366 N.C. 195 (2012). Where the function was governmental, the unit is answerable only so far as it has waived immunity: G.S. 160A-485 for cities and G.S. 153A-435 for counties permit waiver by purchasing liability insurance or participating in a local government risk pool, and waive immunity only to the extent of that cover; for a city, G.S. 160A-485(c) additionally bars any judgment above the policy limits.
The playground is at our apartment complex. Who is responsible?
The owner or occupier of the premises owes a duty of reasonable care to lawful visitors under Nelson v. Freeland, 349 N.C. 615 (1998), which covers residents and their guests, and on the facts that duty can reach the owner, the management company and a maintenance contractor. Owners sometimes invoke the recreational use statute, but G.S. 38A-4(a) does not apply where the owner's purpose in extending the invitation or granting permission is to promote a commercial enterprise, which is ordinarily what a playground offered as a complex amenity is. If the equipment itself failed, a separate product liability claim under Chapter 99B lies against the manufacturer or seller.
My child was hurt on a playground he was not supposed to be on. Is the claim over?
Not necessarily. G.S. 38B-2 says a possessor owes no duty of care to a trespasser, but G.S. 38B-3(2) provides that a possessor may be subject to liability for injury to a child trespasser caused by an artificial condition on the land where all five listed elements are present: the possessor knew or had reason to know children were likely to trespass at that location; the possessor knew or reasonably should have known the condition involved an unreasonable risk of serious bodily injury or death to such children; the injured child did not discover the condition or realize the risk; the utility of maintaining the condition and the burden of eliminating the danger were slight against the risk; and the possessor failed to exercise reasonable care. G.S. 38B-4 limits child trespasser to a trespasser under 14, or one with the level of mental development of a person under 14.
How long do we have to bring a playground injury claim in North Carolina?
It depends which claim. A child's own negligence claim is generally extended, because G.S. 1-17(a) treats a person under 18 as being under a disability, so the three-year period in G.S. 1-52(16) runs after the disability is removed. A parent's claim for the child's medical expenses during minority is not extended. Product claims are cut off 12 years after initial purchase by G.S. 1-46.1, claims against State departments and agencies must be filed with the Industrial Commission within the periods in G.S. 143-299, and a wrongful death action must be commenced within two years of the date of death under G.S. 1-53(4).
The equipment was installed more than a decade ago. Can we still sue the manufacturer?
Often not. G.S. 1-46.1 bars an action for damages for personal injury, death or damage to property arising out of an alleged defect or failure in relation to a product where it is brought more than 12 years after the date of initial purchase for use or consumption. That period runs from the purchase rather than from the injury, so it can already have expired by the time a child is hurt. Claims against the owner or occupier for negligent inspection, maintenance or installation are different claims and are governed by the ordinary limitation rules instead.
Can a playground owner blame my six-year-old for the fall?
Not on the child's own conduct. In North Carolina a child under seven cannot be contributorily negligent as a matter of law; the incapacity is conclusive, and evidence that this particular six-year-old was unusually capable will not overcome it: Walston v. Greene, 247 N.C. 693 (1958). Between seven and fourteen the presumption of incapacity is rebuttable on evidence that a child of that age would ordinarily appreciate the danger, and from the fourteenth birthday the child is presumed capable. A defendant may separately argue that a supervising adult was negligent, which is a different question.
Do we have to prove the playground broke a safety standard?
No. The CPSC Public Playground Safety Handbook and ASTM F1487 are voluntary standards, not North Carolina law, so a departure is not automatic liability and compliance is not automatic protection; they are used as evidence of what reasonable design, installation, surfacing and inspection look like. Licensed child care facilities are the exception worth checking, because G.S. 110-91(6) sets its own requirements for outdoor equipment at a licensed facility. Otherwise the legal question remains whether the defendant exercised reasonable care, or, for a design claim, whether G.S. 99B-6 is satisfied.
Can I settle my child's claim with the insurer myself?
No. A settlement of a minor's claim, including one reached before any suit is filed, is not enforceable against the child unless it has been investigated and approved by the court: Sigmund Sternberger Foundation, Inc. v. Tannenbaum, 273 N.C. 658 (1968). The child appears through a general or testamentary guardian, or through a guardian ad litem appointed under Rule 17 of the Rules of Civil Procedure where there is none, and the court reviews the terms from the child's standpoint rather than the parent's or the insurer's. A release a parent signs alone does not bind the child, and G.S. 48A-2 fixes 18 as the age of majority.
Ask about your own situation.
Every matter turns on its facts. Mr. Sheehan reviews each inquiry himself.