15.12.2016 - Ausgabe: 6/2016

Law and play: product liability and organizational responsibility

by lawyer Dr. Simon Menz, Munich

Playground equipment manufacturers bear great responsibility for the safety of their products. Violations of the specific manufacturers’ duties may not only result in serious consequences for children, but also in considerable product liability risks under both civil law and criminal law. Besides, also operators of public playgrounds, however, are responsible for taking far-reaching measures to fulfil the legal duty to maintain safety. Failure to comply with this duty can also have serious legal consequences.

 

I.Product liability risks of the manufacturer

1.      Damage claims under civil law 

Product liability enables children who might be injured to assert a non-contractual direct claim against the manufacturer for damage caused by defective playground equipment. Such a damage claim hence does not require any contractual relationship between the two parties. In Germany, there are two bases for the claim, namely (negligent) tort liability pursuant to Section 823 (1) of the German Civil Code (BGB) and strict liability in tort regardless of fault pursuant to Section 1 of the German Product Liability Act (ProdHaftG). The latter is based on the Product Liability Directive 85/374 EEC. Both bases for the claim, however, require by definition that the manufacturer put a defective product on the market.  This is the case if the manufacturer failed to exercise proper care in design and construction, manufacture and instruction. Any violation of these duties to maintain safety as defined by Section 823 (1) of the German Civil Code at the same time constitutes a product defect pursuant to Section 3 of the German Product Liability Act (ProdHaftG).

 

a)Establishment of the duties to maintain safety

Under Section 823 (1) BGB  a person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or any other right of another person is liable to make compensation to the other party for the damage arising from this.

As the manufacturer creates a potential safety hazard by selling their (mass) product, jurisdiction developed clearly defined legal duties to maintain safety for the manufacturer from the aforementioned regulation. In case of negligent breach of these duties, the manufacturer shall be liable for any damage caused. 

 

b)Duty to design a safe product

Regarding design and construction, it should first be noted that the principle of integrated safety shall apply. Following that, technical measures to eliminate or reduce risks take precedence over safety instructions, for example in user’s and operating manuals.

Furthermore, it must be taken into account that the public product safety law merely lays down a minimum standard which must be strictly observed.  Technical standards are not of a legal nature and are thus not binding. However, they usually reflect the state of the art and thus set a minimum standard also for civil and criminal liability. In that respect, particular importance shall also be attached to the DIN standards DIN EN 1176-1 to 7 and DIN EN 1177 (“Impact-absorbing playground surfacing – Determination of the critical fall height”). Moreover, DIN 18 034 (“Playgrounds and outdoor play areas – Requirements on planning, building and operation”) and DIN 33 942 (“Inclusive playground equipment”) also specify safety requirements. Non-compliance with technical standards therefore rightly justifies the presumption of a design or constructional fault or failure to provide adequate instructions. On the other hand, it is important to note that especially the state of the science plays a major role in product liability law. Therefore even in spite of compliance with all requirements of the applicable technical standards, liability may arise in the event of damage. It is possible for example, that technical developments have been implemented in the standards either not at all or inadequately.

Finally, it should be pointed out that requirements under the law on chemical substances must also be strictly adhered to when designing (public) children’s playground equipment. First of all, in particular the Regulation (EC) No. 1907/2006 (REACH) has to be named. For example, there is currently a heated debate as to whether rubber safety tiles and surfaces fall within the scope of the new condition of restriction  on polycyclic-aromatic hydrocarbons (PAH) in Annex XVII No. 50 paragraph 5 REACH. On the other hand, the legal requirements of Art. 58 of Regulation (EU) No. 528/2012 (BPR – Biocides Regulation) may also be relevant.  For example, the aforementioned regulation on treated articles applies to wooden play equipment that is treated with biocidal products such as wood preservatives (e.g. for protection against wood-destroying insects)

 

c)Manufacturing defect

A manufacturing defect occurs when not all products of a product line, but just single units were not properly manufactured despite being flawless in their design and when the defect is not detected during manufacturing inspections. To avoid such a deviation from design specifications, improved organizational performance is required in the form of inspection of incoming and outgoing goods as well as production control.

 

d)Duty to instruct 

Failure to provide adequate instructions occurs when the user of a product is not informed at all or not adequately informed about the product’s proper use due to missing or inadequate operating manuals, instructions or warnings. In the end, it is about providing an effective warning of residual risks associated with the product. The manufacturer is obliged to instruct the product user and give detailed information about the intended use and to warn of any potential hazards in using the product. These duties to instruct not only refer to the intended use, but also to foreseeable product misuse. The manufacturer’s duty to instruct particularly also includes the provision of maintenance guidelines on inspection and maintenance intervals for playground equipment.

 

e)Product monitoring duty

The product monitoring duty, however, deserves special attention as it has a special position in law. This results solely from Section 823 (1) of the German Civil Code (BGB), which is why a breach of this duty does not create legal liability in accordance with the product liability law. For the manufacturer’s liability under the product liability law is solely based on the product’s defectiveness at the time when it was placed on the market, which is why knowledge that was acquired after this time can’t create any duty to act.

Pursuant to Section 823 (1) of the German Civil Code, the manufacturer is also obliged to continuously monitor the product once on the market for its practical suitability and to discover any unforeseen hazards that may occur.  This also includes the monitoring of competitive products and of the market for attachments and accessories regarding risks or hazards that may arise as a result of combining a product with an accessory product of a different manufacturer. This product monitoring duty may turn into a duty to prevent harm if the manufacturer receives notice of a product defect – e.g. due to safety-critical incidents or field feedback. In this case, notification requirements towards the competent (national) European market surveillance authorities of the distribution countries affected and the development of an effective communication campaign towards the operators and/ or the end customers also present a tremendous challenge to the manufacturing company. An experienced lawyer’s office should be consulted for support in good time to be able to act in a legally compliant and strategically effective way.

 

2.Risks under criminal law

If failure to comply with the aforementioned duties to maintain safety under civil law results in damage, there are also significant liability risks under criminal law to be dealt with. These are, in particular, the statutory offences of bodily injury caused by negligence (Section 229 of the German Penal Code) or even homicide caused by negligence (Section 222 of the German Penal Code). It should be noted that these offences can not only be committed by a voluntary act (e.g. sale and distribution of dangerous products) but also by an omission to act (e.g. carrying out a product recall). Whereas the addressee of potential liability claims under civil law as outlined above is always the manufacturing company, only individuals may be held liable for criminal offences. Unlike other European countries, there is no such thing as corporate criminal law in Germany. Criminal responsibility is therefore always individual and requires personal guilt. The criminal proceedings before the Ahaus Amtsgericht (local court) (Az. 3 Ls-91 Js 1664/12-7/13), which were conducted not too long ago, prove that this criminal liability risk of responsible individuals in the manufacturing company isn’t purely theoretical in nature:

A girl choked to death at a nursery school in Gronau in March 2012 after she got her head stuck between a climbing frame and the ceiling. The court sentenced, among others, the managing director of the company in charge of the planning, manufacture and installation of the climbing frame to pay a heavy fine for negligent homicide. The court found that the climbing frame did not meet the DIN EN 1176 standard as the distance between the railing of the climbing frame and the ceiling did not comply with the requirements specified in the standard. The court reasoned that the non-compliance with DIN EN 1176 constituted an objective failure on the part of the managing director to exercise proper care, which highlights the importance of technical standards even under criminal law. In subjective terms, the managing director was accused of having ignored in his planning that he had been informed about the lower ceiling height and of having failed to pass this information on to the commissioned subcontractors (project manager and carpenter). Besides, after having received the climbing frame and the drawing he again failed to notice that the lower ceiling height had not been taken into account.

 

II.Playground operator’s liability

1.Damage claims under civil law 

Whereas in the past primarily design defects were the cause of accidents in children’s playgrounds, maintenance problems have now increasingly come to the fore. With the opening of a children’s playground for public use by children, the operator (municipality) creates a (potential) safety hazard and thus assumes the duty to maintain safety pursuant to Section 823 (1) of the German Civil Code (cf. Düsseldorf Higher Regional Court/ OLG Düsseldorf, NJW-RR 1999, 1621). In the case of private playgrounds, liability depends on who actually provides and maintains the playground. Within the framework of condominiums, this would for example be the condominium association.

As particularly stringent requirements have to be placed on the safety of play equipment, a strict duty to carry out inspections is incumbent upon the operator. Parents and children need to be confident that the play equipment is in proper condition. However, regarding the safety requirements placed on the play equipment itself, the municipality or private playground operator can always rely on the manufacturer’s competence if the latter is an acknowledged specialist company and if there is no indication of safety deficiencies. When purchasing playground equipment, care should be taken to ensure that it complies with the applicable standards; if necessary, technical testing institutes (e.g. TÜV or DEKRA) need to be involved. Which safety deficiencies should come to the operator’s notice, ultimately depends – as is so often the case – on an evaluative assessment of each individual case. For example, an only 12cm high lateral guardrail of an over 4 m high slide was considered an obvious defect (Cologne Higher Regional Court/ OLG Köln JMBI NRW 1970, 299). The event of a shoelace getting caught on a screw head slightly protruding from the central axis of some merry-go-round-type children’s play equipment, however, is so unlikely that the operator could not reasonably expect that (Coblenz Higher Regional Court/ OLG Koblenz, NJW-RR 2005, 1611). 

After installation of the playground, the private or municipal operator has the responsibility to keep the play area in a safe condition. According to court rulings, regular inspection and maintenance is therefore required. This does not only involve playground equipment and sandpits, but also other installations such as fences or access paths. Hence, the operator has to meet the following mandatory requirements, which are also specified in the DIN EN 1176-1 standard:

• Establishment of an organizational structure (standing instructions on who is responsible for operation and inspection)
• Adequate qualifications of employees; regular trainings
• Clear definition of the inspection and monitoring tasks and of the scope (monitoring management)
• Written inspection documents as proof in the event of damage (e.g. inspection books)
• Supervision by the competent executive to ensure the observance of the standing instructions

The operator should carry out inspections (and also maintenance work) as specified in the manufacturer’s instructions. The inspection intervals generally depend on the size and condition of the playground as well as on weather conditions. In compliance with the DIN EN 1176-7 standard, at least the following inspections need to be carried out:

• Routine visual inspection: The interval depends on (heavy) use, wear or the risk potential of the particular play equipment. It ranges from daily to weekly inspections.
• Operational inspection: These are inspections to check the function, operation and stability of the equipment according to the interval specified by the manufacturer (approx. every 1 to 3 months). It should be noted that the inspection of the equipment must not be confined to above-ground parts. Occasionally, equipment parts that, for instance, are underneath sand need to be dug out to check their stability (e.g. spinning mushrooms – German Federal Court of Justice/ BGH, NJW 1988, 48,49).   
• Annual main inspection: This inspection is intended to establish the overall condition of play equipment, foundations and surfaces (wear and rotting, etc.) Anyone who commissions a freelance expert to carry out the annual main inspection should demand proof of the expert’s adequate qualification by having the relevant documents submitted beforehand for verification.

 

2.Risks under criminal law

If the private or municipal operator fails to carry out proper maintenance and, as a result, a child suffers damage, a loss or an injury, the operator may be generally liable to criminal prosecution for negligent bodily injury caused by omission (Sections 229, 13 of the German Penal Code) or also for negligent homicide caused by omission (Sections 222, 13 of the German Penal code). By opening the children’s playground for general use by the public, responsibility for this potential hazard (duty to maintain safety) is assumed and besides, a situation imposing duty of care upon the municipal operator as defined by Section 13 of the German Penal Code (StGB) is established. Which municipal office bearer will be called to account in the event of damage, depends on the particular organizational structure. If there are indications of misconduct on the part of officials within the administrative hierarchy, criminal investigations will also focus on this level. It is common practice that competences and responsibilities are delegated within an authority as, for instance, the mayor alone can’t take care of all public facilities (e.g. swimming pools, playgrounds or leisure parks) at once;  of course, the same also goes for other executive levels within the authority’s hierarchical structure (e.g. departmental heads). However, it should be noted that delegation does not relieve the executive level of its responsibility to its full extent. Adequate monitoring and supervision of subordinates and lower-ranking officials must rather be ensured. The risk of criminal liability must therefore be addressed by a working and effective municipal safety management. However, it is imperative for the authority to have an adequate level of human resources and equipment to be able to meet  the various challenges and aforementioned duties of plant operators. Otherwise, there is an increased risk that in case of a (playground) accident – for example caused by inadequate maintenance – the competent municipal employees won’t be able to rebut the charge of negligent homicide or bodily injury.

 

The author works as a lawyer at the Munich office of the international partnership Noerr LLP.