HUNTINGTON -- A state lawmaker is asking Cabell County Schools Superintendent William Smith to suspend the removal of swing sets from all elementary school playgrounds until he can bring involved parties to the table.

Swings are scheduled to be removed from the 17 schools that have them by late December because of recent lawsuits and costs associated with meeting national standards for playground safety.

Sen. Evan Jenkins, D-Cabell, wrote a letter to Smith on Wednesday requesting a meeting with him and the school system's casualty insurance provider, the West Virginia Board of Risk and Insurance Management.

"To take away something as fundamental as swings causes an immediate reaction that something is wrong here," Jenkins said. "We need to look at why this decision was made and gain a better understanding of what the surrounding factors are. We want our kids to be safe, but we don't want to keep them in a bubble, either."

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 failed to 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.

The U.S. Consumer Product Safety Commission sets playground safety guidelines. 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 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, said Tim Stewart, safety manager for Cabell County Schools. That makes it difficult to comply with national safety standards, he 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.

"I know there's no way to prevent all playground accidents. That's not what this is about," Stewart said. "It's about preventing accidents that are likely to cause litigation."

Even though one of the lawsuits involved monkey bars, the county has no plans to remove them from playgrounds, Stewart said.

"We were sued because there was no protective layer beneath the monkey bars. There was nothing but dirt on the ground," he said. "In general, it's much easier to keep a sufficient layer of mulch around monkey bars because it's a much smaller area that we are required to cover."

The decision to remove swings has been the talk of the school this week at Nichols Elementary, Principal Barb Carlton said. A fifth-grade student began circulating a petition Wednesday demanding that the move be rescinded.

"The children say it's unfair that they are losing their swings because someone chose to file a lawsuit against the county," Nichols Principal Barb Carlton. "I have to agree with the children. Countywide, we teach children playground safety and rules, and then there are those who try to be cool by jumping out of the swing and hurting themselves."

Jenkins said he wants to know what the effect of removing the swing sets will have on the county's premium rates. He also is requesting the Board of Risk and Insurance Management to provide claims history of swing set injuries statewide and in Cabell County. That information was not immediately available Wednesday, although Stewart said he checked with BRIM earlier this week and the agency reported it paid two claims totaling $1,513 over the past five years because of swing set injuries in Cabell County.

If the removal of swing sets is allowed to continue, Jenkins said he fears it could have a chilling effect on support from the Legislature, parents, teachers and local business owners who help build and pay for school playgrounds.

The decision to remove the swings was not brought before the Board of Education, but board members were aware of the county's liability issues and were told it was an option that the central office would likely pursue, Smith said.

"I'm certainly willing to meet with Senator Jenkins and discuss this issue further," Smith said. "The cost of maintaining swing sets is just so prohibitive. We may be at the forefront of this action, but I strongly feel it will become a trend across the country."

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