On June 10, 2000, then six year old Erica Carrasquilla slipped and fell while climbing up a wet ladder on a playground slide at New York City’s Van Voorhees Park in Brooklyn. She sustained a supraondylar fracture of her dominant left arm’s elbow requiring closed reduction under anesthesia with the placement of percutaneous pins.

Erica fell from the top of a six rung ladder, like this one:


In the ensuing lawsuit, it was shown that the ladder rungs were wet because other kids had played in a nearby park shower and ran from there onto the ladder. Erica’s attorneys claimed that the slide was thus a dangerous condition for which the city should be liable because (1) a 1981 Consumer Products Safety Commission (CPSC) guideline called for slip-resistant ladder stairs under both wet and dry conditions and (2) the city adopted the guidelines as a standard in its construction contract for the playground. The Kings County jury agreed and found the city liable for Erica’s injuries.

The supracondylar fracture is the most common pediatric elbow fracture:

In 2008, the jury awarded Erica $3,200,000 for her elbow injuries (discussed here) but then the verdict was deemed excessive by the trial judge in 2009 and reduced to $1,200,000 (discussed here). Now, unfortunately for Erica, the appellate court has this week dismissed the entire case finding that, as a matter of law, there was simply no basis for any liability upon the city.

In Carrasquillo v. City of New York (2nd Dept. 2010), the appeals court judges ruled that the CPSC guidelines are merely aspirational and, therefore, an injured plaintiff cannot, as a matter of law, demonstrate negligence on the part of a defendant  merely by showing that a playground slide does not meet CPSC guidelines.

The appellate court judges were not persuaded by terms in the construction contract providing that the slide’s ladder was to be slip resistant under both wet and dry conditions (tracking the CPSC guideline) because there were other provisions in the contract that called for compliance with the most recent CPSC guidelines (that are less stringent and which do not require slip resistance when wet).

Erica Carrasquilla’s lawsuit is now over, her complaint has been dismissed and her $1,200,000 award entirely vacated.