HUNTINGTON -- Swing sets will remain on Cabell County's elementary school playgrounds.

Cabell County Schools Superintendent William Smith halted a plan Thursday to remove swings from the schools because of recent lawsuits and costs associated with meeting national standards for playground safety.

After consulting with the West Virginia Department of Education's Office of School Facilities, school officials discovered that swings are required at all elementary schools, according to a prepared release.

The policy states: "All centers housing kindergarten programs shall contain a segregated blacktopped area and a large grassy area with climbing equipment and swings."

All elementary schools in Cabell County offer kindergarten programs. Therefore, the swings must remain, according to the release.

"We are taking immediate action to make sure we are in compliance with this policy," Smith said. "Even though we have found the swings must remain at our schools, the issue of unlimited liability in legal actions against school systems statewide still exists."

Two lawsuits were filed against the Cabell County Board of Education in December 2009 over playground injuries at Spring Hill Elementary. Both lawsuits were filed by the same parent, Joseph Johnson, but involved different children. Johnson's son broke his arm when he fell out of a swing in April 2006. His daughter fractured her nose when she fell from a set of monkey bars in August 2007.

In both lawsuits, Johnson's attorneys, Dan Greear and Brent Kesner of Charleston, argued that the Board of Education failed to meet national playground safety standards because it did not provide an adequate layer of mulch around the equipment to pad the children's falls. The lawsuit involving Johnson's son was settled for $20,000, while the other was settled for $3,000. Both settlement orders were filed in Cabell Circuit Court on Aug. 13 of this year.

"I believe our experience has shed a light on a question of law that must be addressed by our state's legislative bodies," Smith said. "We still plan to meet with Sen. Evan Jenkins and state Board of Risk and Insurance Management officials to see what can be done to limit exposure to frivolous lawsuits."

Jenkins, D-Cabell, had requested that Smith suspend the swing-removal plan on Wednesday until he could meet with Smith and BRIM officials to learn more about the issue. That meeting could come as early as next week.

"We need to determine what elements of our statutory law are creating this exposure and whether there are fair, common sense ways to modify state law to make sure we weed out meritless suits," Jenkins said. "We shouldn't be trying to shield government entities from all liability, but we also don't want them to be an easy target for a lawsuit."

Seventeen of Cabell County's 19 elementary schools had swing sets at the beginning of the school year. Martha and Southside were the only elementary schools without swing sets.

Jedd Flowers, communications director for Cabell County Schools, said swing sets already have been removed at two schools -- Meadows and Highlawn -- but will be put back at some point in the future. Swings also are now required at Martha and Southside, he said.

The school system will adhere to playground safety guidelines established by the U.S. Consumer Product Safety Commission, said Tim Stewart, safety manager for Cabell County Schools.

The current guidelines for swings require a protective layer of sand, pea gravel, wood mulch, wood chips or recycled rubber that equals twice the height of the swing in each direction. That means if a swing is 7 feet long, a layer of ground material is required 14 feet in front and 14 feet in the back. The safety standards also call for the protective layer to have a depth of at least 9 inches.

Cabell County uses wood mulch on its playgrounds, but it is biodegradable and washes away when it rains, Stewart said. That makes it difficult to comply with national safety standards, he said.

"If we are going to keep these swings, we have to equip them with the proper safeguards, and I don't think mulch is an option," Stewart said.

The only other viable alternative is recycled rubber, but it has raised toxicity questions among parents across the country and is more expensive than wood mulch, Stewart said. He estimates it would cost about $8,000 to cover the ground around each of the 36 swing sets. That's a total of $288,000, a cost that would have to be repeated at least every seven years, he said.

Some swings also will have to be either repositioned or replaced by newer, smaller models, Stewart said. Under current configurations, swings may be too close to fences or property lines and there may not be enough room for the needed safety area on the ground, he said.

"This isn't a minor expense," Flowers said.

Stewart or Smith will discuss the next steps with Board of Education members at their 5:30 p.m. meeting on Tuesday, Sept. 7, Flowers said. They will work with state officials to make sure the swings meet safety standards, he said.

Staffs at the elementary schools also have been instructed to keep a closer eye on children on the playgrounds, Flowers said.

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Lori Wolfe/The Herald-Dispatch First-grade students play on playground equipment in this May 2009 file photo.

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