Tort Claims Case – Hard dirt surface under recreational device – Child falls approximately five feet and fractures dominant shoulder.
Monmouth County, NJ
The plaintiff, age eight or nine at the time, who went to the park to play tennis, contended that when she observed that the courts were in use, she started to play on a monkey bar situated next to the courts. The plaintiff lost her grip and fell approximately five feet, striking the ground. The plaintiff’s recreational expert maintained that the ground underneath the equipment was dangerous because it was compact and hardened. The expert contended that the defendant should have placed sand, mulch or tree bark to create a cushion and the plaintiff contended that the failure to do so was palpably unreasonable.
The defendant contended that the equipment was not meant to be used by children and was, in fact, a chin up bar designed to be used by adults for exercise only and that the area was not dangerous. The plaintiff countered that there were no warnings or advisements that only adults should use the equipment. The plaintiff’s orthopedist related that the plaintiff suffered a fracture to the dominant shoulder which was treated by way of closed reduction under general anesthesia. The expert contended that the plaintiff will permanently suffer a slight cosmetic slope in the shoulder which renders it difficult to wear a bathing suit or evening gowns. The physician also contended that the plaintiff will permanently suffer some weakness in the shoulder.
The jury found for the plaintiff and awarded $35,000.