2010 QCCQ 11726, 2010 QCCQ 11726

Jetha c. Kidzone Entertainment Inc. 2010 QCCQ 11726 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-113768-081 DATE: December 13, 2010 ______________________________________________________________________ PRESIDED BY THE HONOURABLE DAVID L. CAMERON, J.C.Q. ______________________________________________________________________ AMIN JETHA […] Saint-Laurent, Quebec […] Plaintiff vs. KIDZONE ENTERTAINMENT INC. Place LaSalle 7852 Champlain Blvd.

LaSalle, Quebec H8P 1B3 Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Plaintiff, Mr Amin Jetha, sues Kidzone Entertainment Inc. ("Kidzone"), which operates an indoor amusement center for children in the Place LaSalle shopping center on boulevard Champlain in LaSalle. [ 2 ] Mr Jetha alleges that on July 20 th when he was attending a birthday celebration with family and friends, he injured his finger while sliding down a roller slide with his child. [ 3 ] He alleges that he ripped open the fourth finger on his right hand exposing the tendon and dislocating the finger bone requiring surgery and physiotherapy. [ 4 ] He claims for lost time, medical expenses and partial incapacity. [ 5 ] Kidzone denies any liability for this event.

Apart from the general allegation that the activities, designed for children, are safe, Kidzone makes following specific allegations in its defence: "Plaintiff's decision to go down a slide at the same time as her [sic] child instead of one at a time was breach of the rules of common safety.

Once the mother [sic] decided not to let her child go down the slide, she should have allowed a safe separation before she followed, not go together." [ 6 ] In its written contestation and in its evidence, Kidzone also sheds doubt on whether the event even occurred stating that nothing was reported to any of the Kidzone's staff at the time of the event. [ 7 ] The Court questioned Mr Jetha as to the events. He does not know how his finger became torn. [ 8 ] It happened quickly.

He was sliding down the slide with his small child and when he arrived at the bottom, his finger had been ripped open. [ 9 ] The particular slide in question is constructed out of a frame made from conduits that are wrapped in foam installation. The sliding surface has a considerable angle and is about one meter wide.

[ 10 ] The structure is enclosed, in some areas by netting and in other areas with sheets of fabric, so as to make it a closed corridor. [ 11 ] The sliding surface consists of rollers placed horizontally and rotating in parallel.

There is a space between the rollers so that they do not touch each other. [ 12 ] The Plaintiff does not think he gouged his finger on the conduits that form the border of the slide. [ 13 ] In its defence, Kidzone suggests that the accident occurred as a result of Mr Jetha's negligence in rolling down the slide with his child rather than separately, referring to "the rules of common safety" . [ 14 ] This assertion is somewhat incoherent with the nature of the park: a recreational area where children must be accompanied by their parents.

On its website: "www.kidzonelasalle.net/rules.html" , one reads under the heading "Rules inside Kidzone" the phrase: "Child must be under adults supervision, 18+". [ 15 ] On another page on the same text, one reads: Kidzone is an indoor amusement center for children, consisting of many fun and safe toys and activities. Constructed following many safety regulations Kidzone can hold more than 200 children! Parents are also welcome and encouraged to follow their children through the many tubes Kidzone has to offer. With a dynamic staff, Kidzone maintains clean and proper facilities at all times.

Kidzone also consists of a kitchen which offers a variety of trios to satisfy all. [ 16 ] A photo (D-9) shows the list of rules posted in prominent lettering on the wall. The first two rules are pertinent: 1. Kidzone is not a day care center and children must be accompanied by a parent or another adult; 18 years + over. 2.

Kidzone is a socks only environment which means parents also must enter socks only. [ 17 ] There is no other instruction or warning provided to the user of the games and amusements and, more particularly, nothing regarding the manner in which one should use the roller slide. [ 18 ] The position taken by the Defendant is somewhat contradictory: while it states that its games are safe and that no one has ever been injured on them it also points out that the Plaintiff was negligent in riding the slide together with his child. [ 19 ] By suggesting that a certain technique in using the slide is essential for safety, Kidzone is admitting that the slide is potentially unsafe. [ 20 ] In the Court's view, in the absence of any specific warning, the Plaintiff was in no way at fault to slide with his child. [ 21 ] It was his understanding that the child should be accompanied at all times and he was attempting to provide for the child's safety. [ 22 ] It is not obvious exactly now the accident occurred in this case, but there is no evidence to suggest that it was related to the fault of the user and, the circumstances of strongly suggest that there is an inherent risk in the use of the slide that is not disclosed to the user. [ 23 ] From the nature of the injury it can be inferred that there is an inherent danger in the slide in the rollers.

If a finger is pushed against the surface of two rollers at the same time, the skin could become torn as one roller rolls toward the opening and the other rolls away from it.

If the finger becomes inert because of body weight applied against it, the skin is pulled away from it by the roller that is pulling away. [ 24 ] In the Court's view, the accident is more likely the result of an inherent danger in the slide than a completely random and unexplained occurrence. [ 25 ] The Court awards direct costs: for medications: $24.77, for physiotherapy: $370. [ 26 ] There were also numerous appointments with medical practitioners including the surgery and follow up.

The Plaintiff took days off work and suffered the inconvenience and pain associated with physiotherapy as well as the trauma and pain of the accident itself. [ 27 ] In addition to the direct costs, the Court awards $1,500, for these non-pecuniary losses. [ 28 ] Finally, the Plaintiff asserts that there maybe a long-term disability.

There is no medical evidence of this and, in fact, one of the medical reports dated October 14, 2008, filled in by Doctor Bouchard on a CSST form states that there is no permanent impairment to physical or psychological integrity and no functional limitations. [ 29 ] The report states: "Flexion presque complète - congé et conseils" . [ 30 ] Therefore the Court does not to see the necessity of imposing any amount on account of a permanent partial disability.

FOR THESE REASONS, THE COURT: CONDEMNS the Defendant to pay the Plaintiff the sum of $1,894.77, together with interest at the legal rate of 5% per annum and the additional indemnity provided at

article 1619 of the Civil Code of Quebec, calculated from October 27, 2008;

CONDEMNS the Defendant to pay, to the Plaintiff, judicial costs in the amount of $155. __________________________________ DAVID L. CAMERON, J.C.Q. Date of hearing: September 13, 2010