Park Side has filed a cross complaint against Eastern Jungle Gym, bringing them into the lawsuit initiated by the family. Eastern Jungle Gym manufactured the brackets used with the swing frame that fell over causing the death of a 3-year-old child.
Park Side alleges that the brackets did not come with any written instructions, and they relied on the product description on Amazon. At the time of the purchase, Park Side says, the description said that anchors were available “if desired,” though it has since been updated to “recommend anchoring.” Park Side further claims that the brackets were “negligent in design” and that Eastern Jungle Gym “failed to properly warn of the risks of serious injury and/or death.”
Eastern Jungle Gym denies any wrongdoing.
There are multiple reviews on Amazon for the bracket kit that mention the lack of printed instructions, like Park Side claims. Eastern Jungle Gym’s current product page “recommends” anchoring, but archived versions confirm anchoring used to be described as “if desired”.
Park Side says in the court filing that “ordinary consumers would not have recognized the potential risks.” But Park Side was not an ordinary consumer. They were a licensed preschool, subject to specific regulations requiring anchoring and padding. Before the incident, Director Heather Mitchell asserted that she knew “what to do … for safety and licensing purposes.” After, the preschool claimed they had “again reviewed the requirements” (emphasis added). Park Side was cited and ultimately shut down for failing to follow these regulations.
The civil trial is scheduled for June 2020.
Park Side Preschool’s license to operate was officially revoked yesterday, in a stipulated agreement between the preschool and the California Department of Social Services.
In October 2018, three-year-old Macie Opperman died after a newly installed tire swing fell over while Macie and two other children were playing on it. Shortly after, the state cited Park Side for improperly installing the swing. In February 2019 the state initiated an administrative action to revoke Park Side’s license. The preschool voluntarily closed in April, but appealed the revocation action.
In an agreement that went into effect yesterday, Park Side admitted (for licensing purposes) that the playground equipment was unanchored and unpadded, resulting in Macie’s death. Park Side’s license is revoked. Park Side cannot reapply for another license for two years, and any future application will take these events into account.
In addition, Park Side has been assessed and paid a $10,000 civil penalty (similar to a fine) to the state for violations that lead to the death of a child in care, the maximum allowed under the law.
Macie’s family filed a wrongful death lawsuit, currently scheduled to go to trial in June 2020.
Next week’s hearing on the administrative action against Park Side Preschool has been postponed. The action is still pending, but a new hearing date is not yet available.
In connection with closing their doors in April, Park Side has surrendered their license to operate as a preschool.
Surrendering a license does not automatically stop the state’s revocation action. The revocation hearing is still scheduled for next month.
According to Adam Weintraub, a California Department of Social Services spokesman:
In general both a surrendered license and a revoked license may be considered in reviewing a future new license application, and the circumstances in which a license was surrendered may be taken into account.
Even in cases where a license was surrendered, the Department may continue to pursue administrative action to revoke the license for the record; assess options to exclude a licensee from the program for a set period of time or with a lifetime exclusion; impose civil penalties if warranted; and so forth. Any of these actions also could have effects on a future license application or on employment by a licensed facility.”
Updated 10:56 am with more details on the revocation action
Today marks the six month anniversary of Macie Opperman’s death and the day Park Side chose for their last day in operation.
I’m sad that Park Side is closing. It’s a real loss for the community which doesn’t have enough quality preschools. My son still calls Park Side ‘his preschool’ even though he hasn’t returned and has been attending a different school for months.
I’m sad that Macie died. To lose a child is unimaginable. To lose her in such a preventable and foreseeable way makes it all the more meaningless.
I’m sad that good and loving teachers are losing their jobs. They’ve suffered through this, too. I hope they can find peace in whatever comes next.
I’m sad that I agree it’s necessary for the preschool to lose their license. There may have been a path where Park Side could have survived this crisis, but they were unwilling to take it.
Today is a sad day.
Despite telling parents that Park Side would not contest the state’s action to revoke their license to operate, they have filed an appeal. NBC Bay Area’s Vicky Nguyen was first to report this story.
According to Park Side’s attorney, Park Side still plans to close, with April 19 as the last day. There is a hearing scheduled for June 10 in Oakland where Park Side will have the opportunity to present their defense.
According to a message sent to parents, Park Side has decided not to contest the license revocation action. A closure date has not yet been set and Park Side will continue to operate in the meantime.
Inquiries to the attorneys for the state and Park Side were not immediately returned.
Here is the Accusation, the legal document prepared by CCLD, the state regulator of preschools, starting the license revocation process.
There are three allegations claimed:
- Park Side “failed to anchor a play structure to the ground … causing the death of Child #1”
- Park Side “failed to cushion the area around the play structure…”
- Park Side “engaged in conduct that is inimical [harmful] to the health, morals, welfare, or safety” by failing to anchor or cushion the play structure.
The regulator “requests that … Park Side Preschool’s license to operate a child care center be revoked.”
The regulator’s level of proof needed is the same “preponderance of evidence” used in civil trials. This simply means that the regulator needs to prove it more likely true than not, a lower standard than the “beyond a reasonable doubt” standard used in criminal trials.
CCLD, the state regulator for preschools, has begun the process to revoke Park Side Preschool’s license to operate. Park Side was served with the legal papers last Wednesday, Februrary 27. Park Side can continue to operate through the process.
Park Side has the opportunity to defend against the action, in which case a hearing will be held. The hearing is like a civil or criminal trial presided over by an Administrative Law Judge. State’s attorneys will present their evidence and representatives from Park Side can do the same.
No hearing date has been set and the details of the accusation were not immediately available. (Update 3/6/2019: Accusation document is now available) The pending action is visible on CCLD’s site.
Last week, on 1/14/2019, CCLD visited Park Side for an unannounced inspection. Most elements were in order, including parent acknowledgements of the previous Type A (“immediate risk”) citations for the swing frame. One new Type B (“may become” a risk) citation was issued. You can read the report here.
The citation was issued because Park Side was unable to provide a current roster, including name, parent and doctor names and phone numbers. I was able to verify with CCLD that Park Side did have the required information about children in care. It was located on Rolodex cards. Due to this format, Park Side couldn’t provide CCLD a copy on request, as the law requires. A version using the standard form was sent to CCLD later that day.
Following legal requirements is of course important, but all evidence is that Park Side had contact information available if it became necessary.