In Flis et al. v Cedar Fair et al., 2020 ONCS 874, the Ontario Superior Court dismissed the defendants’ motion for summary judgment where a child plaintiff experienced a crush injury on his finger from a 90lb exit gate at Canada's Wonderland.

Facts

Logan (age two) and Nathan (age four), were exiting a ride with their mother and grandmother. They disembarked and proceeded to the end of the exit walkway, which was equipped with a gate with a magnetic lock. Nathan walked through the open exit gate first, followed by Logan, who held the gate open for his mother and grandmother. After passing through the gate, Logan's mother heard a slam and a scream and turned around to see Logan with blood on his hands. Logan and his mother commenced a claim against the occupier and ride operator under the Occupier's Liability Act. The defendants moved for summary judgment dismissing the action.

Evidence and court decision

The defendants led robust evidence regarding the extensive safety measures put in place by Canada’s Wonderland. The defendants’ record, however, failed to describe any safety measures pertaining specifically to the gate. The operator’s manual for the ride also contained a “Common Sense” section emphasizing that most of the riders would be children who are unpredictable and who would not always understand the dangers around them. The defendants led no expert evidence.

By contrast, the plaintiffs led expert evidence opining that crush injuries are a major concern for children’s play spaces and that the ride operator should have identified the hazard posed by the heavy gate and taken steps to eliminate the risk to Logan and other children. In particular, the plaintiffs’ expert opined that Logan's injury could have been avoided by stationing an employee by the gate or retrofitting it to prevent it from swinging freely.

The court ultimately dismissed the defendants’ motion on the basis they were aware of the unpredictability of children but failed to address the gate in their safety systems. The defendants would have been successful on the motion had their evidence established that the safety system reasonably addressed the gate. In the absence of a defence expert, the court could not reject the plaintiff’s expert opinion and a trial was required.

Takeaway

Although evidence was tendered as to the extensive safety systems put in place, where the offending piece of equipment was not addressed specifically, and where no expert evidence is tendered, the court will be reluctant to make a liability determination at a summary judgment motion. The court's reluctance was compounded by the fact the occupier acknowledged the unpredictability of children, who are the main users of the premises.

Where an occupier wishes to proceed with a summary judgment motion, they should remember the importance of putting their best foot forward. “Leading trump” in the form of expert opinions and clear evidence addressing the alleged hazard will be required for the occupier to be successful on a summary judgment motion.