How the Absence of an Inexpensive Safety Fence Led to a $250,000 Payout by the City of Aiken

by Don Moniak

January 2, 2023

On the afternoon of July 2, 2019, with temperatures in the mid 90’s (F), an eighteen month old child under the care of her mother stepped onto a grated metal hatch covering a mechanical equipment vault that sits ten to twelve feet away from the Splash Pad at the City of Aiken’s Citizens Park. The child suffered second degree burns on both feet.

In a personal injury lawsuit filed January 29, 2021, on behalf of the minor child and mother, as guardian, Lexington Attorney Melissa Mosier wrote that the mother:

“turned around to check on the other two children with her at the splashpad when she heard a child cry out, and turned back to find her daughter H.N.P.M just a few feet away, standing on the metal hatch screaming. She ran to her child, who was stunned and crying out in agony, and a crowd gathered to try to assist this mother and child.

H.N.P.M. sustained serious injuries, including second degree burns (blistered burns) on the bottoms of both of her feet. This required her to be placed under general anathesia in an attempt to repair her wounds. See photographs of H.N.P.M.’s feet, noting the grate pattern.”

The claims made in the initial complaint included:

• It was foreseeable that a child would wander to the nearby mechanical system and hatch, which posed “an attractive nuisance for children.” 
• The City of Aiken took no steps to “keep children away, protect them, or advise their parents of the dangers posed by the equipment vault or the hot metal surface concealing the mechanical equipment.”
• “The City was on actual notice of the particular hazard posed by the unguarded and un protected equipment fault by virtue of a prior burn injury at the park – and despite this it failed to take any steps whatsoever to remedy the danger or even warn against it.”

In regard to the prior injury, Mosier contended the city was negligent for violating “its duty of reasonable care to fix known defects and hazardous conditions within a reasonable amount of time after notice;” and that the cost of fencing the hazard would be less than $1,000. That amounts to about 1/400th of the Splashpad site’s insured value. (1)

At the time, as seen in the photo below, there was no fenced area within the fenced splash-pad and grassy area. The metal hatch covering splash pad equipment, another grate, and an electrical juncture box had no signs indicating them as hazards, were not fenced separately, and were a part of the play area.

In the response on behalf of the City of Aiken, Columbia attorney Daniel Plyler either denied all allegations or demanded more information; and offered a total of sixteen defenses. These included a standard, generic defense asserting full negligence by the mother, as well as Plyler’s standard “Fifth Defense” for personal injury negligence complaints against the city, the “natural disease process:”

“Defendant would allege, upon information and belief, that any injuries or damages sustained by Plaintiff were due to and caused by the natural disease process over which Defendant had no control and, as such, Defendant pleads such a natural disease process as a complete bar to this action.” (1)

In August, 2021, Plyler filed a Motion to Compel a response to submitted discovery requests regarding the mother’s life and work history, whether she had “ever received counseling or treatment for alcohol or drug addiction or use,” or used social media.

In October, 2021, Mosier answered with another Motion to Compel to answer Plaintiff’s discovery requests. Sometime between the lawsuit being filed and the latter Motion to Compel, the City’s Parks and Recreation Department had opted to fence the hazards that were in dispute, leading to question 21:

When was the fencing installed around the metal grate and who directed the installation of the fence?

On February 22, 2022, Second District State Circuit Court Judge Courtney Clyburn Pope issued a settlement order granting a Petition for Approval of Minor Settlement filed by Mosier. The petition stated:

“The City of Aiken denies any liability for the injuries but, through its insurance carrier, the South Carolina Municipal Insurance and Risk Financing Fund, respectively, proposes to compromise and settle the claims. The terms of the settlement of the sum of One Hundred and Seventy-Five Thousand Dollars ($175,000).”

The terms of the settlement involved a “payment directed to Independent Assignment Company for payment of periodic payments upon the minor child reaching maturity.”

The settlement also required the city to pay attorney fees:

“IT IS FURTHER ORDERED that attorneys’ fees of $70,000.00 and the costs incurred in handling this action are reasonable, and they are hereby approved.”

In total, the City of Aiken and its insurance fund paid out $245,000 for a settlement and for Plaintiff attorney costs. The cost of the city’s defense is presently unknown. The accident that led to the settlement was avoidable and preventable, but no action was taken to mitigate safety risks until after a lawsuit was filed. The settlement that may have doubled the city’s liability costs (3) over a one year period was not reported in Aiken’s newspaper of record.

Footnotes

(1) The Splashpad’s insured value, including the restroom, is $405,410. the City pays an annual insurance premium of $636 for the facility that includes liability coverage.

(2) Thirteen of the defenses were generic in nature, word for word identical to the defense made in 2021 to another lawsuit involving a child’s injury at Virginia Acres park in 2019. In that case, a minor child fell over an electrical box and sustained unidentified injuries. The case was dismissed in February, 2022; and no settlement was noted in the available court records.

The same set of generic defenses were also made in the case of another personal injury/premises liability lawsuit against the city and SC Dot involving an adult who suffered an injury on Boardman Road.

(3) In terms of liability, according to the The City of Aiken Annual Comprehensive Financial Report for Fiscal Year Ended June 2022, the city “participates in two self-insurance plans whereby the self-insurance funds from other members of South Carolina  local governments are pooled together for investment and administrative purposes. These pools  accumulate assets and assume risks for the following: 
1. Property and liability coverage with a limit of liability for the pool of one million dollars.” (Pages 83-84)

The report also described litigation as a contingency in the budget, but did not address any underlying safety culture issues that might contribute to liability claims:

“The City is involved in several pending lawsuits. Liability, if any, which might result from these proceedings, would not, in the opinion of management and legal counsel, have a material adverse effect on the financial position of the City.”