Benjamin H. Barton, Tort Reform, Innovation, and Playground Design

58 Fla. L. Rev. 265 (2006) | | | |

INTRODUCTION :: The playground at the St. James Episcopal Church is a nice, short walk from my home in Knoxville, Tennessee. The church generously allows neighborhood kids to use it, and with two young daughters (ages two and four), I spend quite a bit of time on playgrounds these days. The St. James playground is a great example of what I call the “new” playground paradigm: It is built on a floor of wood chips and is modular, colorful, and made largely from plastic and rubber-coated steel. It is not an exceptional playground, but it is close to our house, and we end up there quite a bit.

We love this little playground. It has a ground level “house” with two windows, a little bench, and a round mirror. The girls love to play house there, as well as dump the wood chips in and out of the windows. There is a round tube with circular holes that we call the “tickle tunnel.” The tickle tunnel entry is a brazen invitation to Dad to stick his arms through the holes and tickle any willing victim silly. There is a little stairway for my two-year-old and several different climbing options for my four-year-old. There are swinging chin-up hoops for the four-year-old to swing out and back on, and there is a raised fort with a steering wheel for pirate ship or bus driving adventures. And, of course, there are three slides (one shorter for toddlers) and four swings (two baby/bucket swings and two regular swings).

One of the unforeseen benefits of parenting is the light it sheds on your own childhood, parents, and upbringing. Playgrounds are no exception. Many times on the St. James playground I have thought about the sorry playgrounds I grew up with in the 1970s in Brooklyn, New York. I generally played on what I will call the “traditional” playground: steel swings, freestanding steel slides, jungle gyms, and seesaws on a concrete surface surrounded by a chain link fence. Even as a kid, these playgrounds struck me as stark, depressing, and unidimensional.

I went to elementary school at P.S. 321 on Seventh Avenue, and I still remember vividly the day they placed rubber mats on top of the hard, hard concrete under our metal jungle gym. I remember because I had fallen and scraped myself many times on the concrete, and the rubber mats were a revelation: “You mean we could have had rubber mats all this time? What gives?”

The movement that led to my rubber mats has spread all over the country. The traditional American playground has been replaced one playground at a time by a shiny new playground paradigm. Modular playgrounds on soft surfaces, designed and constructed according to voluntary safety standards, have sprouted up country-wide, replacing the concrete and metal playgrounds of our youth.

Chewing over this phenomenon on the St. James playground led me to two questions: What happened to the traditional playground, and if it is true that today’s playgrounds are superior, what does that tell us about the arguments for and against tort reform? As a torts professor, I had an easy answer for the first question: Liability and safety concerns killed the traditional playground. This killing actually was a pretty impressive accomplishment: The traditional playground had been criticized for years, yet had basically survived unchanged from the turn of the century.


The answer to the second question was harder. If the new playgrounds are better than the old playgrounds, a sacred cow of the tort reform battles is implicated. For years, tort reform advocates have argued that the laws of product liability and torts retard innovation. The “product liability discourages innovation” trope has gained great currency, and been accepted by courts, by Congress, and by multiple commentators. This argument has intuitive appeal. It seems right that fearful, chastened corporations would react to expanding tort liability by hesitating to create bold new products or to do anything that might expose them to further tort liability.

Despite this intuitive appeal, current playgrounds prove the exact opposite. The new playground design proves that the challenge of replacing and redesigning a failed and dangerous product actually may inspire manufacturers to create not only safer products, but better products. Innovative manufacturers take the opportunity to redesign and to rethink unsafe products from the ground up with greatly improved results. This Article argues that the tort reformers have gotten at least one of their justifications for reform wrong: The law of product liability does not retard innovation. To the contrary, in some markets it actually has led to a spectacular rise in innovation.

The Article is divided into three parts. Part I describes the product liability/innovation debate more extensively and details the arguments and empirical evidence for and against a negative correlation. Part II argues three main points: (1) Be careful predicting future economic effects when costs are easy to foresee and benefits are murkier; (2) outmoded technology and business approaches frequently remain on the market out of sheer inertia; and (3) entrepreneurial companies may not simply patch failed products, they fully rethink and redesign them. I also indulge in a brief discussion of the economist Joseph Schumpeter’s entrepreneurial mindset and a Calabresian argument that manufacturers are probably in the best position to innovate and “make lemonade” out of the lemons of design defects. Part III then applies these theories to playground design and argues that product liability law and heightened safety concerns actually have resulted in a quality revolution in public playgrounds.

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