Recently, friend of the blog, Max Kennerly, himself of the famed Litigation & Trial blog, tipped us off to commercial playground equipment manufacturer Landscape Structures’ recall of its Evos Slalom Glider slide. Apparently, the Consumer Product Safety Commission issued the recall following reports of at least 16 children under 8 years old being seriously injured after allegedly falling from the slide. There’s already at least one lawsuit against the manufacturer. After posting his terrific review of the recall, Max informally challenged us via Twitter to defend the product. (See here and here for those tweets.).
Well, Max, not being ones to back down, we accept the challenge!
For starters, we admit the task of defending the device seems daunting, at least initially. The slide is narrow and shallow; it offers no handrails. Its ladder looks like the spinal column of a giraffe. The Evos might not be the first choice for playground equipment of the overprotective parent. Clearly, the Evos, at first glance, offers some fodder to the putative Plaintiff’s counsel. But are they legal ones?
There are two standards to determine design defectiveness: (1) consumer expectations and (2) risk-utility. According to the consumer expectations test, a product design is defective if it is dangerous beyond a consumer’s reasonable contemplation. Here, we would assume that most consumers hope children would be safe while playing on playground equipment. However, there is clearly a risk of injury on even the most benign playgrounds. Children can and do fall from swings, ladders, slides, and rock walls all the time. Of course, many of these items, unlike the Evos, are equipped with railings and other protective measures to prevent falls. But the design hazards of the Evos are obvious to the reasonable consumer. The harm of falling from a narrow, handrail-less slide unfortunately should be expected.
Under the risk-utility test, a product’s design is defective if the costs of avoiding potential hazards are foreseeably less than the benefits of taking some safety measures. There is no question that Landscape Structures could have made the Evos safer. Theoretically, the manufacturer could have widened, deepened, and added handrails to the product. If these steps were taken, however, the Evos is no longer an Evos – it’s a normal, ordinary slide. If the consumer wants a slide, he or she has thousands of slides from which to chose. Here, the consumer didn’t want a slide, he wanted an Evos.
According to Landscape, the Evos is intended to “promote balance and coordination.” We have yet to take a ride down a slide that can do the same.
Whether the costs of converting the Evos into an ordinary slide outweigh the benefits of maintaining the very essence of the product is a question of fact. While there may be some reasonable alternative design, we are not aware of one. In our humble opinion, if the consumer has concerns about the Evos, then he or she should opt for a traditional slide. Like all playground equipment, the Evos can certainly be made safer. But the design of this slide alternative is not significantly more dangerous than the rest of the playground equipment world.
Aside from the alleged defective design, there may be some issue as to whether Landscape failed to warn of the apparent dangers of the Evos. According to a complaint filed against the company, there is one sticker on the Evos’ ladder demonstrating its proper use. We doubt too many children are reading warning labels. The question is whether the label is sufficient to warn the parents. Admittedly, we haven’t seen the actual label, so we can’t comment on its sufficiency. Assuming, however, that the label itself is an adequate warning, we have no problem with its location on the Evos’ ladder. Some may argue that parents are not in the playground structure and lack the ability to see the label. But think about the alternatives. One, the label could be applied to the Evos’ “slide.” This would make the warning visible from the outside of the playground, but how much good is it after the child is already in full descent? Two, Landscape could make some sort of detached sign. While it may get the word out, logistically, it seems like a bit of over-kill.
Perhaps, the onus of this situation falls on the parents. The risks of children playing on the Evos are obvious. But so too are the risks of small children playing and climbing ladders unassisted on other equipment. It should be of some significance that of the 16 reported injuries, all of the children are under 8 years of age. As with any toy, some are better suited for older children.
Let’s allow the parents to decide whether they want their children to play on the Evos.