STANDARD OF CARE EVIDENCE IN PLAYGROUND SAFETY GUIDELINES ELLEDGE v. RICHLAND/LEXINGTON SCHOOL DISTRICT FIVE
341 S.C. 473, 534 S.E.2d 289 (S.C.App. 06/19/2000)
SOUTH CAROLINA COURT OF APPEALS
June 19, 2000[Note: Attached opinion of the court has been edited and citations omitted.]
In this negligence action, Christine Elledge sued Richland/Lexington School District Five for injuries sustained by her daughter, Ginger Sierra, in a fall from playground equipment. The jury returned a verdict for the school district and Elledge appeals, arguing the trial judge erred in excluding evidence of playground industry standards and in charging the jury. We reverse and remand.
FACTS/PROCEDURAL HISTORY
On December 9, 1994, Ginger Sierra, a nine-year-old fourth grader at Irmo Elementary School, slipped and fell while playing on the school playground's modified monkey bars. The bars were originally designed to stand approximately four and one-half feet off the ground with a bench running underneath. Children were encouraged to sit or lie on the bench and pull themselves along the length of the bars.
In 1991, after the school principal noticed some children climbing on top of the bars rather than lying on the bench, he contracted with a playground equipment sales representative to make safety recommendations. The representative, who was not trained or licensed as an engineer, eventually modified the monkey bars by removing the bench and lowering the bars. The resulting apparatus formed an inclined "ladder," with parallel bars from twenty to thirty inches off the ground. Tires were also installed at each end of the bars for mounting and dismounting, and the children were encouraged to walk across from one end to the other. Despite the fact that the thin side bars were not intended as a walking surface, neither handrails nor a non-slip surface was added to the "new" monkey bars.
On the day of her accident, Ginger was walking across the bars after a light rain. Her foot slipped on a narrow bar, causing her to fall, and her right leg became trapped between the bars. As a result, Ginger suffered a severe "spiral-type" fracture in her right femur, resulting in damage to the thighbone's growth plate. Following a lengthy convalescence, doctors removed the growth plates in both her legs to prevent uneven growth.
On August 27, 1997, Elledge sued Richland/Lexington School District 5 (District) for negligence and gross negligence pursuant to S.C. Code Ann. §§ 15-78-40 and 15-78-60(25), respectively, of the South Carolina Tort Claims Act. A jury trial was held June 15-17, 1998.
Prior to trial, the District filed a motion, which the trial court granted, to exclude "any testimony and/or documentary evidence" relating to the Consumer Products Safety Commission's (CPSC) guidelines for playground safety or the American Society for Testing and Materials' (ASTM) standards for playground equipment.
The court adhered to its ruling during trial, and Elledge offered excerpts from written and video depositions to support her claim that such evidence was relevant to the applicable standard of care.
On June 17, 1998, the jury returned a verdict for the District. The trial court denied all post-trial motions and this appeal followed.
LAW/ANALYSIS
A trial court's decision to exclude evidence will not be disturbed on appeal absent an abuse of discretion amounting to an error of law. To warrant reversal on appeal, a party must show both the error of the court's ruling and resulting prejudice.
Elledge first asserts the trial court erred in excluding evidence of the CPSC guidelines and ASTM standards, arguing such evidence was relevant to establish the appropriate standard of care. We agree.
Evidence of industry standards, customs, and practices is "often highly probative when defining a standard of care." 57A Am. Jur. 2d Negligence § 185 (1999). Safety standards promulgated by government or industry organizations in particular are relevant to the standard of care for negligence. Evidence of custom within a particular industry, group, or organization is admissible as bearing on the standard of care in determining negligence...
Courts have become increasingly appreciative of the value of national safety codes and other guidelines issued by governmental and voluntary associations to assist the trier of fact in applying the standard of due care in negligence cases.
A safety code ordinarily represents a consensus of opinion carrying the approval of a significant segment of an industry, and is not introduced as substantive law but most often as illustrative evidence of safety practices or rules generally prevailing in the industry that provides support for expert testimony concerning the proper standard of care.
In the present case, the trial court precluded Elledge's evidence of the CPSC guidelines and ASTM standards for playground safety based on the mistaken belief that the District must have adopted these national protocols before such evidence was admissible. This was error.
The District cites no cases, and we are aware of none, mandating promulgation or implementation of national industry standards prior to their admission in a negligence case...
[E]vidence of standards promulgated by industry, trade, or regulatory groups or agencies may be relevant and admissible to aid the trier of fact in determining the standard of care in a negligence action even though the standards have not been imposed by statute or promulgated by a regulatory body and therefore do not have the force of law. Violation of standards in such private safety codes is evidence on the issue of negligence but not negligence per se [i.e., in and of itself; conclusive proof]...
A safety code is not introduced as substantive law, as proof of regulations or absolute standards having the force of law or scientific truth. It is offered in connection with expert testimony which identifies it as illustrative evidence of safety practices or rules generally prevailing in the industry, and as such it provides support for the opinion of the expert concerning the proper standard of care.
The District further asserts even if it was error to exclude evidence of the applicable industry standards, Elledge suffered no prejudice as a result. We disagree.
Elledge proffered substantial video deposition testimony from Steven Bernheim, an expert in playground safety and equipment, concerning industry standards as outlined in the CPSC and ASTM. Specifically, Bernheim would have testified to the District's deviation from the accepted standard of care in the field. Moreover, Elledge intended to offer evidence that the District had notice of these standards, and that they were fully enforced regarding District purchases of new playground equipment.
The exclusion of this testimony was clearly prejudicial since such evidence would tend to show the District's compliance with industry standards, which directly conflicts with the District's assertion that such standards were never recognized...
Because we find the trial court committed reversible error in refusing to admit relevant evidence of industry standards, the judgment of the court below is REVERSED AND REMANDED.