As of July 1, 2007, New York State adopted new playgrounds to be constructed or installed with safety surfacing that complies with the Consumer Products Safety Commission's Public Playground Safety Handbook.

Yes, the Handbook also provides some measurements that must be met in order to comply with the law.

New York's Law Regarding Playground Safety Surfacing

New York GBL §399-dd provides, in pertinent part, as follows:

§ 399-dd. Construction or installation of playground or playground equipment

1. Definitions relative to playground safety. For the purposes of this section, the term “playground” means an improved area designed, equipped, and set aside for play of six or more children which is not intended for use as an athletic playing field or athletic court, and shall include any play equipment, surfacing, fencing, signs, internal pathways, internal land forms, vegetation, and related structures.

2. The consumer protection board, in consultation with the office of parks, recreation and historic preservation, shall promulgate rules and regulations for the design, installation, inspection and maintenance of playgrounds and playground equipment. Those regulations shall substantially comply with the guidelines and criteria which are contained in the handbook for public playground safety produced by the United States consumer products safety commission or any successor. The rules and regulations shall include special provisions for playgrounds appropriate for children within the range of ages in day care settings. (Emphasis supplied).

What Kinds of Materials Can Be Used?

The Handbook goes on to list a number of acceptable materials that may - and may not - be used for safety surfacing. The following table is a partial list:

Appropriate Materials Inappropriate Materials
Surfacing Materials for Playgrounds

• Pea gravel
• Sand
• Shredded/recycled rubber mulch
• Wood mulch (not CCA-treated)
• Wood chips

  • Conrete
  • Ashalt
  • Dirt
  • Grass
  • CCA treated wood mulch

Interestingly (at least at first blush), one of the more commonly used materials, loose fill, requires a fair amount of material in order to comply with the law, as ¶ (Loose-Fill Surfacing Materials) of the CPSC Handbook for Playground Safety the CPSC Handbook states:

 “7. Never use less than 9 inches of loose-fill material except for shredded/recycled rubber (6 inches recommended). Shallower depths are too easily displaced and compacted.”

A Word of Caution

While no New York court has, to my knowledge, specifically addressed the interplay between the ASTM standards and the CPSC Guidelines as to the amounts of fill required, some school districts have argued that the surfacing can still be deemed compliant with the law even if the loose fill in the area of a child's fall is less than the 9" set forth by the CPSC - provided that the surfacing in that area still affords adequate impact attenuation, or in other words, so long as the ground cover absorbs enough of the impact of the fall.

Consequently, the mere fact that a playground surface has less than a 9" depth of loose fill may not guarantee a viable school negligence case against a New York school or school district.

Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer