New lawsuit claims there was inadequate playground mulch at school when 8-year-old boy died

STANSBURY PARK — The parents of a boy who died after he fell from a slide at Rose Springs Elementary School are suing the Tooele School District.

In February 2023, 8-year-old Dallin Cunningham died after falling off a corkscrew-styled slide.

“The best estimate that the police were able to come up with is that the slide is 11 feet tall,” said the Cunningham family attorney, Peter Mifflin. “His exit from the slide was approximately 7 feet off the ground. In what position he was in, we’re not sure.”

Mifflin was transported to Primary Children’s Hospital, where he was pronounced dead. About one year after his death, his parents struggle to think about their son’s final moments.

“They were kind of scared to read the police report,” Mifflin said.

Mifflin said Cunningham’s father, Timothy, retired from his job following his son’s death and other concerns. His mother, Kathryn, wrote a book about processing her grief.

They started working with Mifflin in December. In a lawsuit filed against the Tooele County School District, the parents claim the playground isn’t safe.

“We believe that the slide was too steep, also was not protected so that someone could come out laterally,” Mifflin said.

The lawsuit also notes safety standards including the slide in question lacking guardrail-type devices at the entrance.

Utah boy dies after falling off school slide

Attorney Peter Mifflin said they need to investigate the slide further. It was removed from the school’s playground.

“One of the reasons why we filed the lawsuit is so we could get access to the slide,” he said.

He said the bigger issue for him and the Cunninghams is a lack of maintenance of the wood chip playground surface.

The lawsuit claims there was only one inch of wood chips covering a frozen solid surface, not enough to cushion Cunningham’s fall.

“You need to have a surface that is capable of handling that critical height for falls from that height, and wood chips can be rated to do that if it’s appropriately maintained,” Mifflin said. “We believe this was not being appropriately maintained.”

The lawsuit states, “the standard is 12 inches of fill material which is anticipated to compress to a minimum of 9 inches of fill.” Those guidelines come from national standards set by the Consumer Product Safety Commission, the American Society for Testing and Materials, the American Academy of Pediatrics, and the American Public Health Association.

According to the Utah Division of Child Care Licensing, which outlines rules on play equipment, woodchips are one of the acceptable forms of cushioning, however, “cushioning material that is frozen is considered a hard surface. If the cushioning cannot be loosened due to weather conditions, children may not use the play equipment until the material can be loosened.”

Mifflin said the mulch did not meet national guidelines during a recent visit.

“Even more disturbing, when we looked at it a couple of weeks ago, again, that standard is still not being complied with,” he said.

He said police noted in their report taken after Cunningham’s death that the ground was frozen solid beneath the wood chips.

“The police reported they hit it with a shovel, and with a substantial amount of force and couldn’t get even an inch into it,” Mifflin said.

He questions if this playground has a drainage issue.

“You have standing water, which then freezes in Utah’s climate,” he said. “Even if you have some chips on top of the frozen surface, your ability to handle falls from height is dramatically reduced.”

Mifflin argues wood chips are an effective ground cover for school and public playgrounds, only if they’re maintained properly. He said districts should take into account the cost of maintaining the ground cover when selecting what they will use.

“It’s wood; it will compress and disintegrate, degrade over time, especially when exposed to fluctuating temperatures and weather,” he said.

Mifflin said they’re waiting for the ground to thaw to measure how deep the chips go. He said the process has been difficult for Cunningham’s family.

“Getting into the details even now is definitely upsetting to them,” he said.