By Montford S.B. No. 1352
74R7123 DLF-F
A BILL TO BE ENTITLED
1-1 AN ACT
1-2 relating to playground safety; providing civil penalties.
1-3 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
1-4 SECTION 1. Chapter 756, Health and Safety Code, is amended
1-5 by adding Subchapter E to read as follows:
1-6 SUBCHAPTER E. PLAYGROUND SAFETY
1-7 Sec. 756.061. SHORT TITLE. This subchapter may be cited as
1-8 the Texas Playground Safety Act.
1-9 Sec. 756.062. DEFINITIONS. In this subchapter:
1-10 (1) "ASTM playground safety standards" means the
1-11 standards published in 1993 by the American Society for Testing and
1-12 Materials in ASTM Document No. F 1487-93, Standard Consumer Safety
1-13 Performance Specification for Playground Equipment for Public Use.
1-14 (2) "Charitable organization" has the meaning assigned
1-15 by Section 84.003, Civil Practice and Remedies Code.
1-16 (3) "CPSC playground safety guidelines" means the
1-17 guidelines published in 1991 in the Handbook for Public Playground
1-18 Safety by the United States Consumer Product Safety Commission.
1-19 (4) "Governmental entity" means the state or any
1-20 political subdivision of the state, including a county,
1-21 municipality, or school district.
1-22 (5) "Installation" means the manner in which
1-23 playground equipment or surfacing is set up or put in place for
1-24 use, whether done by the provider of the equipment or surfacing or
2-1 another person.
2-2 (6) "Installer" means the person who installs
2-3 playground equipment or surfacing.
2-4 (7) "Owner or operator" means a person who owns,
2-5 leases, or operates a playground or who otherwise controls access
2-6 to or the operation of a playground.
2-7 (8) "Playground" means that portion of an outdoor or
2-8 indoor area that is designed for children's play and has playground
2-9 equipment to which the CPSC playground safety guidelines or ASTM
2-10 playground safety standards apply. The term does not include an
2-11 area designated for use as an athletic field or court or as a
2-12 swimming or wading pool.
2-13 (9) "Playground equipment" means equipment used in a
2-14 playground and includes a bridge, climbing apparatus, ladder,
2-15 merry-go-round, platform, ramp, seesaw, slide, spring rocker, step,
2-16 swing, trampoline, and any other structure in or on which a child
2-17 may crawl, hide, or otherwise play.
2-18 (10) "Provider" means a person who is:
2-19 (A) a manufacturer, renovator, rebuilder,
2-20 assembler, or other maker or designer of playground equipment or
2-21 surfacing;
2-22 (B) a wholesaler, lessor, distributor, or other
2-23 furnisher of playground equipment or surfacing; or
2-24 (C) an installer of playground equipment or
2-25 surfacing.
2-26 (11) "Provider representative" means a person who is
2-27 an employee, agent, or subsidiary of a provider.
3-1 (12) "Surfacing" means the covering of the
3-2 ground-level area under and around playground equipment.
3-3 Sec. 756.063. SCOPE OF SUBCHAPTER; PLAYGROUND OPEN TO
3-4 PUBLIC. (a) This subchapter applies only to a playground that is
3-5 available for use by:
3-6 (1) the public; or
3-7 (2) individuals who have express or implied permission
3-8 in connection with an activity or purpose of:
3-9 (A) a governmental entity;
3-10 (B) a business organization; or
3-11 (C) a charitable organization.
3-12 (b) This subchapter does not apply to playground equipment,
3-13 surfacing, or the installation of playground equipment or surfacing
3-14 at an individual's residence for use by the individual's family or
3-15 guests unless the residence is a registered child-care facility or
3-16 is otherwise regulated under Chapter 42, Human Resources Code.
3-17 Sec. 756.064. MINIMUM SAFETY REQUIREMENTS FOR PLAYGROUND
3-18 EQUIPMENT, SURFACING, AND INSTALLATION. (a) A playground may not
3-19 contain playground equipment or surfacing unless:
3-20 (1) each piece of playground equipment, area of
3-21 surfacing, and installation of the equipment or surfacing is
3-22 certified to be in substantial compliance with each CPSC playground
3-23 safety guideline and ASTM playground safety standard that applies
3-24 to the equipment, surfacing, or installation; or
3-25 (2) the owner or operator places and maintains a sign
3-26 that complies with Section 756.067 at each entrance to the
3-27 playground or, if the playground does not have an identifiable
4-1 entrance, at a prominent place in the playground.
4-2 (b) Except as provided by Subsections (c) and (d), the
4-3 certification requirement of Subsection (a)(1) may be satisfied
4-4 only by:
4-5 (1) written certification from the provider of each
4-6 piece of equipment, and written certification based on an on-site
4-7 inspection by the provider of each area of surfacing or particular
4-8 installation, as to substantial compliance of the equipment,
4-9 surfacing, or installation with each applicable CPSC playground
4-10 safety guideline and ASTM playground safety standard;
4-11 (2) written certification based on an on-site
4-12 inspection by a person whom the owner or operator in good faith and
4-13 on a rational or reasonable basis believes to be qualified and
4-14 competent to make the certification; or
4-15 (3) a combination of written certifications under
4-16 Subdivisions (1) and (2).
4-17 (c) The certification requirement of Subsection (a)(1) is
4-18 satisfied for playground equipment, surfacing, or the installation
4-19 of the playground equipment or surfacing if:
4-20 (1) the playground equipment or surfacing was
4-21 installed before September 1, 1996, and the owner or operator
4-22 believes in good faith and on a rational or reasonable basis,
4-23 including an on-site inspection, that the equipment, surfacing, and
4-24 installation are in substantial compliance with each CPSC
4-25 playground safety guideline and ASTM playground safety standard
4-26 that applies to the equipment, surfacing, or installation; or
4-27 (2) the playground equipment or surfacing was
5-1 installed before September 1, 1996, and a governmental entity that
5-2 is its own provider of the playground equipment, surfacing, or the
5-3 installation of the playground equipment or surfacing believes in
5-4 good faith and on a rational or reasonable basis, including an
5-5 on-site inspection, that the equipment, surfacing, and installation
5-6 are in substantial compliance with each CPSC playground safety
5-7 guideline that applies to the equipment, surfacing, or
5-8 installation.
5-9 (d) This section does not apply to playground equipment or
5-10 surfacing, or to the installation of the equipment or surfacing,
5-11 that is subject to Section 756.065.
5-12 Sec. 756.065. PUBLICLY FUNDED PLAYGROUND. (a) This section
5-13 applies only to playground equipment, surfacing, and the
5-14 installation of the equipment or surfacing that:
5-15 (1) is installed on or after September 1, 1996; and
5-16 (2) is purchased, leased, or otherwise procured under
5-17 the State Purchasing and General Services Act (Article 601b,
5-18 Vernon's Texas Civil Statutes) or otherwise by a governmental
5-19 entity.
5-20 (b) Except as provided by Subsection (c), each piece of
5-21 equipment, area of surfacing, or installation subject to this
5-22 section must be in substantial compliance with each CPSC playground
5-23 safety guideline and ASTM playground safety standard that applies
5-24 to the equipment, surfacing, or installation.
5-25 (c) Each piece of equipment, area of surfacing, or
5-26 installation subject to this section for which a governmental
5-27 entity is its own provider must be in substantial compliance with
6-1 each CPSC playground safety guideline that applies to the
6-2 equipment, surfacing, or installation. A governmental entity that
6-3 is its own provider may certify a piece of equipment, area of
6-4 surfacing, or installation as being in substantial compliance with
6-5 a CPSC playground safety guideline if an appropriate official of
6-6 the entity believes in good faith and on a rational and reasonable
6-7 basis, including an on-site inspection, that the equipment,
6-8 surfacing, or installation is in substantial compliance with the
6-9 guideline.
6-10 (d) The provider of each piece of equipment, area of
6-11 surfacing, or installation subject to this section shall furnish,
6-12 before the purchase, lease, or other procurement, written
6-13 certification that the equipment or surfacing complies, and that
6-14 the installation will comply, with this section. This subsection
6-15 does not apply if the governmental entity is its own provider of
6-16 the playground equipment, surfacing, or installation.
6-17 Sec. 756.066. SUBSTANTIAL COMPLIANCE. A piece of playground
6-18 equipment, area of surfacing, or installation of the equipment or
6-19 surfacing is in substantial compliance with a guideline or standard
6-20 if it meets the essential particulars of the guideline or standard
6-21 and the only variance from strict compliance with the guideline or
6-22 standard is a technical or minor deviation.
6-23 Sec. 756.067. MINIMUM SPECIFICATIONS FOR NONCERTIFICATION
6-24 SIGN. (a) The requirement of Section 756.064(a)(2) is satisfied
6-25 by a sign that reads:
6-26 SAFETY WARNING:
6-27 This playground has equipment, surfacing, or
7-1 installation that has NOT been certified under the
7-2 Texas Playground Safety Act as substantially complying
7-3 with national safety guidelines and standards.
7-4 (b) The sign described in Subsection (a) must be at least 18
7-5 inches by 24 inches, with white letters on a red background, and
7-6 the letters must be at least 1 inch high and of even stroke width.
7-7 Sec. 756.068. CIVIL PENALTY. (a) An owner or operator,
7-8 including a county, municipality, or school district, that
7-9 knowingly owns or operates a playground that is not in compliance
7-10 with this subchapter is liable for a civil penalty of not more than
7-11 $5,000 for each violation.
7-12 (b) A provider or provider's representative is liable for a
7-13 civil penalty of not more than $10,000 if:
7-14 (1) the provider or provider's representative
7-15 certifies in writing or otherwise represents or claims that a piece
7-16 of playground equipment, area of surfacing, or particular
7-17 installation of equipment or surfacing is in substantial compliance
7-18 with each applicable CPSC playground safety guideline or ASTM
7-19 playground safety standard; and
7-20 (2) the equipment, surfacing, or installation is not
7-21 in substantial compliance with the guideline or standard.
7-22 (c) A separate civil penalty shall be assessed under
7-23 Subsection (b) for each certification or representation.
7-24 Sec. 756.069. INJUNCTION. A court may enjoin a person from
7-25 continuing a violation of this subchapter.
7-26 Sec. 756.070. ENFORCEMENT. (a) The attorney general or a
7-27 district attorney or county attorney of the county in which the
8-1 playground is located may bring an action in the name of the state
8-2 to recover a civil penalty under Section 756.068 or an injunction
8-3 under Section 756.069.
8-4 (b) A civil penalty recovered under Section 756.068 by the
8-5 attorney general shall be deposited in the state treasury to the
8-6 credit of the general revenue fund. A civil penalty recovered
8-7 under this section by a district or county attorney shall be
8-8 deposited in the county treasury of the county in which the suit is
8-9 maintained to the credit of the general fund.
8-10 Sec. 756.071. VENUE. An action under Section 756.070 may be
8-11 brought in a county in which any part of the violation is alleged
8-12 to have occurred or to be occurring.
8-13 Sec. 756.072. RECOVERY OF EXPENSES. In an action in which a
8-14 violation of this subchapter is established, the state may recover
8-15 from a person who is found to be in violation reasonable expenses
8-16 incurred in establishing the violation, including reasonable
8-17 attorney's fees, expert witness fees, deposition expenses, and
8-18 court costs.
8-19 Sec. 756.073. INDEMNITY FROM PROVIDER. (a) A provider of
8-20 playground equipment, surfacing, or the installation of the
8-21 equipment or surfacing shall indemnify and hold harmless against
8-22 loss for an alleged violation of this subchapter each owner or
8-23 operator who relies on written certification from the provider that
8-24 the playground equipment, surfacing, or installation is in
8-25 substantial compliance with each applicable CPSC playground safety
8-26 guideline and ASTM playground safety standard to satisfy the
8-27 requirements of Section 756.064(a) or 756.065(b).
9-1 (b) In addition to the indemnity provided for under
9-2 Subsection (a), a provider of playground equipment, surfacing, or
9-3 the installation of the equipment or surfacing to a governmental
9-4 entity shall indemnify and hold harmless each governmental entity
9-5 to which the provider furnishes written certification under Section
9-6 756.065(d) against loss from liability for damages for an injury or
9-7 death arising from a failure, however characterized, of the
9-8 playground equipment, surfacing, or installation to be in
9-9 substantial compliance with each CPSC playground safety guideline
9-10 and ASTM playground safety standard that applies to the equipment,
9-11 surfacing, or installation.
9-12 (c) In an action in which indemnity is sought under
9-13 Subsection (b) for a loss arising from a claim against the
9-14 governmental entity that, in part, is not based on the failure
9-15 described in Subsection (b), the trier of fact shall determine the
9-16 amount of the loss attributable to the failure described in
9-17 Subsection (b).
9-18 (d) In this section, "loss" includes reasonable attorney's
9-19 fees, expert witness fees, and other expenses incurred by an owner
9-20 or operator in defending an action for an alleged violation of this
9-21 subchapter relating to the provider's equipment, surfacing, or
9-22 installation, as well as any fees, expenses, court costs, or civil
9-23 penalties imposed for the violation.
9-24 (e) The duty to indemnify under this section applies without
9-25 regard to the result of the action to enforce this subchapter and
9-26 is cumulative of any indemnification that may exist under contract
9-27 or other law.
10-1 Sec. 756.074. CONDITIONAL DEFENSE TO EXEMPLARY DAMAGES. (a)
10-2 An owner or operator who believes in good faith and on a rational
10-3 or reasonable basis that each piece of playground equipment, area
10-4 of surfacing, and installation of equipment or surfacing in the
10-5 playground is in substantial compliance with each CPSC playground
10-6 safety guideline and ASTM playground safety standard that applies
10-7 to the equipment, surfacing, or installation is not liable for
10-8 exemplary damages for an injury arising from:
10-9 (1) a failure, however characterized, of the equipment
10-10 or surfacing or the installation of the equipment or surfacing to
10-11 be in substantial compliance with each applicable playground safety
10-12 guideline or standard; or
10-13 (2) an act or omission on the part of the owner or
10-14 operator relating to a failure described by Subdivision (1)
10-15 committed at a time the owner or operator believes the playground
10-16 to be in compliance.
10-17 (b) For purposes of Subsection (a), the owner or operator
10-18 has a rational or reasonable basis for believing that the
10-19 equipment, surfacing, and installation are in substantial
10-20 compliance with each applicable CPSC playground safety guideline
10-21 and ASTM playground safety standard if the owner or operator has
10-22 certification of compliance for each piece of equipment, area of
10-23 surfacing, and installation of equipment or surfacing that
10-24 satisfies Section 756.064(b), (c), or (d) or Section 756.065(c) and
10-25 (d).
10-26 (c) The trier of fact shall be instructed with respect to
10-27 Subsections (a) and (b) in an action:
11-1 (1) that involves multiple claims or theories of
11-2 recovery;
11-3 (2) that involves at least one claim or theory under
11-4 which exemplary damages may not be awarded under this section; and
11-5 (3) in which a party seeks the recovery of exemplary
11-6 damages on a claim or theory to which this section does not apply.
11-7 (d) This section does not apply to liability for exemplary
11-8 damages for an injury resulting in death.
11-9 (e) In this section, "exemplary damages" has the meaning
11-10 assigned by Section 41.001, Civil Practice and Remedies Code.
11-11 Sec. 756.075. EFFECT OF SUBCHAPTER. Except as provided by
11-12 Sections 756.068, 756.072, 756.073, and 756.074, this subchapter:
11-13 (1) does not create, increase, decrease, or otherwise
11-14 affect a person's liability for damages for injury, death, or other
11-15 harm caused by playground equipment, surfacing, or the installation
11-16 of the equipment or surfacing; and
11-17 (2) is not a waiver of sovereign immunity of any
11-18 governmental entity.
11-19 SECTION 2. (a) Except as provided by Subsections (b) and
11-20 (c) of this section, this Act takes effect September 1, 1995.
11-21 (b) A person is not required to comply with Section 756.064
11-22 or 756.065, Health and Safety Code, as added by this Act, before
11-23 September 1, 1996.
11-24 (c) Sections 756.068-756.073, Health and Safety Code, as
11-25 added by this Act, take effect September 1, 1996.
11-26 SECTION 3. The importance of this legislation and the
11-27 crowded condition of the calendars in both houses create an
12-1 emergency and an imperative public necessity that the
12-2 constitutional rule requiring bills to be read on three several
12-3 days in each house be suspended, and this rule is hereby suspended.