June 2011 - Parks & Recreation - 41

open, or whether it was a combination
of the two...
He opined that it was more likely that
the S-hook was open. He based this
conclusion largely on Allison's testimony about the condition of the S-hook
following the accident. He stated that,
although he did not know how much
wear existed at the time of the accident, there would not need to be much
if the gap in the S-hook was as great as
Allison indicated. He also testified that
it was highly unlikely that an S-hook
would break.

Warren, a structural engineer, admitted he had " limited experience in playground maintenance " and " unfamiliar
with maintenance and safety protocol for
playground equipment " prior to trial. As
a result, the City claimed " Warren did
not qualify as an expert to render testimony on whether the swing was dangerous or defective " because " expert
testimony was needed with respect to
playground equipment and recreational
safety. " The appeals court rejected the
City's position that " Warren's testimony
should have been excluded because his
education and training are not specific to
playground equipment. " In so doing, the
appeals court concluded that " Warren
possesses the education and experience
that qualify him to render an expert opinion regarding the potential for S-hooks to
open up over time and to cause an accident like the one that occurred in the
present case. "
Warren is a licensed professional engineer with an area of practice
predominantly in structural engineering. Warren offered particular
expertise in the areas of physics and
metallurgy, which was especially pertinent to an examination of the effect of
time and wear on chains and S-hooks.
Warren testified that he familiarized
himself with maintenance, safety, and
repair protocols in the specific context
of playground equipment. He also stated that he has tested playground
equipment to examine the metallic
properties of a swing set....
Warren's testimony was arguably

" [T]he defective condition of the swing
that caused Wright's accident could have
been discovered by reasonable diligence
through thorough inspections "
more instructive on the issue at hand-
the opening of S-hooks and the physics
of the swinging motion-than that of
the City's expert, whose particular expertise was in designing and
inspecting playground equipment.
Furthermore, the City's expert also testified about the slow-opening nature of
S-hooks, stating that he recommends
checking them only monthly.

Constructive Notice?
In addition to proving the swing was in
a dangerous or defective condition, " for
the City's immunity to be removed " under the state tort claims act, the appeals
court acknowledged Wright " must also
prove that the City had actual or constructive notice of the condition " (Tenn.
Code Ann. § 29-20-204(b)). As defined
by the court, " a governmental entity will
be charged with constructive notice of a
fact or information, if the fact or information could have been discovered by reasonable diligence and the governmental
entity had a duty to exercise reasonable
diligence to inquire into the matter. " Further, in this particular context, the appeals
court found " [p]roof that a governmental
entity failed to adequately inspect property or improvements which it owned and
controlled is directly relevant to the question of whether it had constructive notice
of the dangerous or defective condition
resulting in injury. "
Based on the evidence presented, the
appeals court found the City had the requisite " constructive notice of the condition " because " the defective condition
of the swing that caused Wright's accident could have been discovered by
reasonable diligence through thorough
inspections " :
Constructive notice depends not on

when an injury occurs but on when a
governmental entity fails to exercise
reasonable diligence. The fact that no
accident occurred prior to Wright's accident does not mean the swing was
not in a dangerous or defective condition at that time.
Both experts testified that it would
take just the right circumstances for an
accident of this nature to occur. The
swing could have been in a defective
condition for days, weeks, or months.
Warren testified that S-hooks do not
open overnight, but rather, open slowly over a period of time. Burton stated
that he typically recommends checking S-hooks only monthly. That means
the park staff likely would have missed
the open S-hook over a period of time,
not just from Friday, when it was allegedly last checked, to Saturday, the day
of the accident.
The park staff was well aware of this
tendency of S-hooks to open up or
wear over time. Each member of the
crew knew how to close open S-hooks,
and extra S-hooks were kept in the
park trucks for easy replacement.

Conclusion
Having found sufficient evidence on the
record to establish that the City should
have known that the swing " was in a dangerous or defective condition " due to an
open S-hook, the appeals court affirmed
the judgment of the trial court in favor of
plaintiff Wright.

James C. Kozlowski, J.D., Ph.D. is
an associate professor in the School of
Recreation, Health, and Tourism at George
Mason University in Manassas, Virginia. E
Mail: jkozlows@gmu.edu, Webpage: http://
mason.gmu.edu/~jkozlows.

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