File No. CI 15-01? THE BENCH WINNIPEG CENTRE BETWEEN: ADAM MARTENS, Plaintiff, ?and- RED RIVER EXHIBITION ASSOCIATION, RED RIVER EXHIBITION FOUNDATION and NORTH AMERICAN MIDWAY ENTERTAINMENT, JOHN DOE #1 being Ride operator JOHN DOE #2 being Ride operator JOHN DOE #3 being Ride operator . Defendants STATEMENT OF CLAIM DUBOFF EDWARDS HAIGHT SCHACHTER Law Corporation Barristers and Solicitors 1900 155 Carlton Street Winnipeg MB R3C 3H8 Harley I. Schachter Telephone: 942-3361 71 Fax: 942-3362 File No. 130453?1301 File IN THE BENCH WINNIPEG Centre BETWEEN: ADAM MARTENS, Plaintiff -and- RED RIVER EXHIBITION ASSOCIATION, RED RIVER EXHIBITION FOUNDATION and NORTH AMERICAN MIDWAY ENTERTAINMENT, JOHN DOE #1 being Ride operator JOHN DOE #2 being Ride operator JOHN DOE #3 being Ride operator Defendants STATEMENT OF CLAIM TO THE DEFENDANTS A LEGAL PROCEEDING HAS BEEN COMMENCED AGAINST YOU by the Plaintiff. The claim made against you is set out in the following pages. IF YOU WISH TO DEFEND THIS PROCEEDING, you or a Manitoba lawyer acting for you must prepare a Statement of Defence in Form 18A prescribed by the Queen?s Bench Rules, serve it on the Plaintiff?s lawyer or, where the Plaintiff does not have a lawyer, serve it on the Plaintiff, and file it in this Court of?ce, WITHIN TWENTY DAYS after this Statement of Claim is served on you, if you are served in Manitoba. If you are served in another province or territory of Canada or in the United States of America, the period for serving and ?ling your Statement of Defence is FORTY DAYS. If you are served outside Canada and the United States of America, the period is SIXTY DAYS. IF YOU FAIL TO DEFEND THIS PROCEEDING, JUDGMENT MAY BE GIVEN AGAINST YOU IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. IF YOU PAY THE CLAIM, and $300.00 for costs, within the time for serving and ?ling your Statement of Defence, you may move to have this proceeding dismissed by the Court. If you believe the amount claims for costs is excessive, you may pay the Plaintiff?s claim and $300.00 for costs and have the costs assessed by the Court. i. DERETY by: COEJRLESE EENWOHA Deputy Registrar Court of Queen?s Bench Main Floor - 408 York Avenue Winnipeg, Manitoba R3C 3L6 DATE: aim 3% Issued TO: RED RIVER EXHIBITION ASSOCIATION 3977 Portage Avenue Winnipeg, Manitoba AND TO: RED RIVER EXHIBITION FOUNDATION 3977 Portage Avenue Winnipeg, Manitoba. AND TO: NORTH AMERICAN MIDWAY ENTERTAINMENT PO. Box 429 Farmland, INDIANA, USA 47340 AND TO JOHN DOE #1 being Ride operator Address currently unknown. AND TO: JOHN DOE #2 being Ride operator Address currently unknown. AND TO: JOHN DOE #3 being Ride operator Address currently unknown. CLAIM A. Introduction. 1. The plaintiff claims against the defendants: a) General Damages; b) Special Damages; 0) Pre and post Judgment Interest and compensation for loss of opportunity to invest pursuant to The Court of Queen ?5 Bench Act; d) Costs of this action; and e) Such further and other relief as this Honourable Court may deem just. B. The Parties. 2. The plaintiff, Adam Martens, is an individual who currently resides in the City of Winnipeg, in the Province of Manitoba. He is a member of the Long Plain First Nation. At the time of the incident leading to his injuries, he was residing at Long Plain First Nation Reserve, near Portage La Prairie Manitoba. The plaintiff, Adam Martens, was, and remains in a signi?cantly disadvantaged socioeconomic status, having no income, and very few possessions. One of his few possessions that he did possess and that he did consider valuable was his Adidas brand baseball cap. The defendant, the RED RIVER EXHIBITION ASSOCIATION is a corporation incorporated pursuant to the laws of Manitoba with an of?ce located at 3977 Portage Ave, Winnipeg, Manitoba, and together with the Red River Exhibition Foundation, annually plans and holds the approximate week?long event called the Red River Exhibition, at the Red River Exhibition fairgrounds, roughly adjacent to Assiniboia Downs. As part of the Red River Exhibition in June 2013, this defendant and the Red River Exhibition Foundation together contracted for the defendant, NORTH AMERICAN MIDWAY ENTERTAINMENT, to set up and operate an amusement park. The defendant, RED RIVER EXHIBITION FOUNDATION is a corporation incorporated pursuant to the laws of Manitoba with an of?ce located at 3977 Portage Ave, Winnipeg, Manitoba, and together with the Red River Exhibition Association, annually plans and holds the approximate week-long event called the Red River Exhibition, at the Red River Exhibition fairgrounds, roughly adjacent to Assiniboia Downs. As part of the Red River Exhibition in June 2013, this defendant and the Red River Exhibition Association together contracted for the defendant, NORTH AMERICAN MIDWAY ENTERTAINMENT, to set up and operate an amusement park. The defendant, NORTH AMERICAN MIDWAY ENTERTAINMENT is a corporation incorporated pursuant to the laws of the United States with an of?ce located in Farmland, Indiana, and sets up and operates amusement park rides, and was the entity contracted to do so for the 2013 Red River Exhibition. The defendant JOHN DOE being Ride operator resides at a location unknown to the plaintiff, and was at all material times hereto one of the ride operators operating the amusement ride called the ?Crazy Mouse? roller coaster at the Red River Exhibition on June 20, 2013, which is the ride at which the Plaintiff sustained his injuries. Despite reasonable efforts to ascertain the name of this defendant, the plaintiff has not discovered their name, and seeks leave to amend this claim to identify this defendant by name once their identity becomes known. The defendant JOHN DOE being Ride operator resides at a location unknown to the plaintiff, and was at all material times hereto one of the ride operators operating the amusement ride called the ?Crazy Mouse? roller coaster at the Red Rive Exhibition on June 20, 2013, which is the ride at which the Plaintiff sustained his injuries. Despite reasonable efforts to ascertain the name of this defendant, the plaintiff has not discovered their name, and the plaintiff seeks leave to amend this claim to identify this defendant by name once their identity becomes known. The defendant JOHN DOE being Ride operator resides at a location unknown to the plaintiff, and was at all material times hereto one of the ride operators operating the amusement ride called the ?Crazy Mouse? roller coaster at the Red Rive Exhibition on June 20, 2013, which is the ride at which the Plaintiff sustained his injuries. Despite reasonable efforts to ascertain the name of this defendant, the plaintiff has not discovered their name, and the plaintiff seeks leave to amend this claim to identify this defendant by name once their identity becomes known. The defendant, NORTH AMERICAN MIDWAY ENTERTAINMENT, is the employer of the individual defendant ride operators, and is vicariously liable for the wrongful acts of the ride operators, its employees, and those contractors retained by it who operate the rides pursuant to its instructions or under its effective control. C. The Duty of Care. Governed by the Manitoba Occupiers Liability Act. 10. 11. 12. l3. 14. 15. The plaintiff relies upon the provisions of he Occupiers Liability Act, C.C.S.M. 0.08. Each of the defendants are an ?occupier? as that term is de?ned in the Occupiers Liability Act. Each of the defendants owed the plaintiff a duty of care pursuant to section 3(1) of The Occupiers? Liabilities Act, to take such care as, in all circumstances of the case, is reasonable to see that the plaintiff and his property would be reasonably safe while on the premises. Furthermore, as set forth in section 3(2) of The Occupiers Liability Act, the duty referred to in subsection 3(1) of The Occupiers Liability Act, applies in respect of: the condition of the premises; activities on the premises; and the conduct of third parties on the premises. The plaintiff further states the corporate defendants are responsible at law for any and all acts of their respective employees and/or their agents falling under each defendants? authority and/or supervision relating to and/or leading to the injury and damage. On June 20, 2013 at approximately 5:00 pm. the plaintiff, then a child of 6 years, attended at the Red River Exhibition fair grounds, in Manitoba, located in the proximity of the Assiniboia Downs Racetrack. D. Breaches of duty 0 The premises were not reasonably safe as required by the Occupiers Liability Act. 16. The location on the premises where the incident causing the injury took place, was called the ?Crazy Mouse? amusement ride. 17. The perimeter of the ?Crazy Mouse? ride was not fully or properly fenced off in a manner so as to effectively deter or prevent children from entering the part of the ride where the roller coaster tracks are located, and where the roller coaster cars travel at high rates of speed, and present danger to any person in the vicinity. - N0 warnings were given. 0 N0 written warnings. 18. At approximately 5:25 pm. the plaintiff was preparing to enter the ?Crazy Mouse? ride. 19. Prior to boarding the Crazy Mouse? ride: a) there were no written warnings for riders to avoid wearing baseball caps; b) there were no written warnings for riders to not enter the Crazy Mouse ride area to retrieve objects following the ride. 0) Any written warnings that did exist: were not suf?ciently prominently displayed; (ii) were in respect of ?hats?, as opposed to tighter ?tting baseball caps; were not sufficiently brought to the plaintiff attention. 0 No verbal warnings before, during or after the ride. 20. 21. 22. 23. 24. 25. The ride operator facilitating the entrance to the ride (taking tickets/checking wrist bands/controlling entrance to the ride), (ride operator gave no verbal warning to the plaintiff that he should take off his baseball cap, even though the fact he was wearing a baseball cap was clearly evident. The ride operator facilitating the boarding of the ?car? in which the plaintiff rode, (the employee who ensures the riders are strapped in and the ?car? door is closed;- ride operator gave no verbal warning to the plaintiff that he should take off his baseball cap, even though the fact he was wearing a baseball cap was clearly evident. During the ride, the plaintiff? baseball cap blew off, and fell to the ground below, near the tracks of the roller coaster. To the defendants, this was a foreseeable event. After the plaintiff got off the ride, he asked the person who let him off the ride (ride operator whether a ride operator would retrieve his baseball cap for him. The ride operator refused to do so, responding in a negative fashion, using expletive language. No ride operator advised the plaintiff of the existence of a policy that baseball caps or other personal belongings could be retrieved at some other time or at the end of the day, nor did any ride operator advise the plaintiff not to attempt to retrieve his own baseball cap. The plaintiff says he was left with the impression from the ride operators that if the plaintiff wanted his baseball cap back, he would have to retrieve it himself. 26. 27. 28. In full View of the ride operators, the plaintiff walked through a gap in the fence, which fenced area should have, but did not, fully encircle the ?Crazy Mouse? ride and which should have been constructed in a manner so as to pose an effective deterrent to prevent children from entering. No warnings were called out to the plaintiff not enter the ride area, and no ride operator took any emergent steps to stop the ride in a timely fashion, when they saw, or ought, with the exercise of reasonable care, to have seen the plaintiff, prior to the incident, present inside the improperly partially fenced area. As the plaintiff was standing up after bending down to retrieve his baseball cap, he was struck by the under carriage of one of the cars of the ?Crazy Mouse? ride (herein the ?Incident?), suffering a high level traumatic cervical spinal cord injury as well as injuries to his cranial nerves ultimately leading to paralysis, as well as numerous and grievous physical injuries. The plaintiff was immediately rushed to the Children?s Hospital Where he was treated. He has been a quadriplegic since the Incident. 0 Unreasonable policy regarding delayed retrieval of baseball caps and other belongings 29. that the defendants knew would be falling off. The plaintiff has subsequently learned that the ?Crazy Mouse? ride is operated pursuant to a policy that: a) It is to be operated continuously, and without stoppage, during the period when the fair is open; b) The ride will not be stopped at any time during the business hours to facilitate retrieval of possessions that fall off patrons during the day; 30. 31. 32. 33. c) Ride operators are instructed to advise riders that the only time they can retrieve possessions that may have fallen off While riding the ?Crazy Mouse?, is at the end of the night when the ride is closed down. (This is at approximately 1 am. each day). The rationale for the policy includes: The fact that keeping the ?Crazy Mouse? ride running for the whole day without stoppage, maximizes revenues for the defendants; The fact that compelling people to return to retrieve belongings at the end of the day, acts as an incentive for them to stay at the fair until closing, thereby causing them to likely spend more money, all to the bene?t of the defendants. Regardless of the rationales, such a policy is objectively unreasonable under the circumstances. It requires out of town guests and children, who often come to the fair during the day, and who intend to only stay a few hours, (as the plaintiff intended) to wait until the end of the day to retrieve their belongings. It is known to the defendants that the average attendance duration per visitor is measured in a few hours, and that it is not realistically possible for visitors from out of town or children (such as the plaintiff), to wait until the end of the day to retrieve their valuables. Each year the ride operators and the amusement park company NORTH AMERICAN MIDWAY ENTERTAINMENT collect the valuables which go unclaimed, and those valuables are either retained by the defendants or sold by them and the proceeds kept by the defendants. The unclaimed items are a source of revenue for them. 34. It was reasonably foreseeable that out of town children would not likely be prepared to wait until closing time, and might attempt to retrieve their own baseball caps and other articles of value during their stay, thereby putting themselves in harm?s way. 0 Summary of particulars of breaches of Duty. 35. The plaintiff states the Incident was caused by the breaches of duty particulars of which include: a) Failing to set up a properly fenced and secure perimeter to deter children such as the plaintiff from entering the area where the cars proceed on the tracks; b) Failing to take reasonable care to provide written or verbal notice, warnings and cautions to persons riding the Crazy Mouse ride not to wear baseball caps and not to attempt to retrieve baseball caps following the ride; c) Failing to take reasonable care to prevent the plaintiff from entering the partially enclosed ride area to retrieve his baseball cap; d) Failing to act in a timely fashion when the presence of the plaintiff within the partially fenced in ride area was known or ought to have been known by the defendants. e) Failing to operate the ride with the care and diligence expected in the circumstances; t) Failing to implement a policy that allows time for children and out of town visitors to retrieve their belongings every few hours, rather than having to wait until the end of the night; g) Failing to take reasonable care to ensure the safety of persons entering on the premises of the Red River Exhibition. E. The harms. 36. The plaintiff states that by virtue of the Incident and the breach by the defendants of the duty of reasonable care he suffer substantial loss, injury and damage. 37. 38. 10 As a result of the defendants? negligence and/or breach of duty the plaintiff has suffered personal injury and damages including: a) C1 fracture; b) L5 fracture on his back; c) Broken femur; d) Broken jaw; 6) Hearing damage in right eardrum; f) Double Vision; g) Body tremors; h) Permanent discomfort and dis?gurement; i) Damage to his vocal chords; j) Inability to reproduce or engage in sexual activity; k) Paralysis; 1) Loss of enjoyment of life including but not limited to loss of ability to attend school, take trips, become employed, participate in the normal physical activities of daily life and live independently; m) Anxiety, stress and loss of enjoyment of life as a result of the injuries generally and speci?cally but not limited to paralysis and dis?gurement; n) Depression; 0) Loss of Earning Capacity; p) Loss of Opportunity to Invest; q) Loss of ability to maintain a household and housekeeping abilities. The catastrophic injuries have led to a signi?cant change in lifestyle. Before the injury, Adam was an active teenager. He broke in his own two horses to ride, he played hockey, 39. 11 baseball, drove the car, and had a girlfriend who he adored. He took his nephews four? wheeling, and had his own garden. He was an active teenager, and was happy to get up in the mornings. He can?t play with his nephews and niece now, go swimming with them, camping or canoeing, or put them on one of the geldings that he trained himself. He now requires constant 24/7 home care for such things as cleaning him when he has a bowel movement, washing his body getting him from his bed into the tub. He cannot pee on his own or brush his teeth or shave. He no longer can change the channel on the TV or pick music from his iPod nor can he make a telephone call or speak. He cannot go to bed on his own when he is tired. He cannot drive a car or skate, or do any of the things that he previously enjoyed. He no longer can enjoy food because of the paralysis he cannot swallow food. Attempting to return to school was made dif?cult because the other kids could not converse with him, and he was a new student living in a Wheelchair living in a silent world. He is sick much of the time with chronic bladder infections. He suffers from multiple kidney stones in both kidneys and is prone to pneumonia. He is a prisoner in a body that no longer works. He will not walk down the graduation isle to receive his diploma with his peers and friends. As a further result of the negligence and/or breach of duty of the defendants the plaintiff has suffered special damages including medical treatment expenses, drug and pharmaceutical expenses, travel expenses related to medical treatment, medical care, home care and other miscellaneous expenses. Particulars of all such expenses and further expenses to be incurred by the plaintiff as a result of his injuries will be proven at trial. 12 F. Service Outside Of Manitoba. 40. In accordance with Rule 17.02, this claim is an originating process which may be served outside of Manitoba without leave because the claim: a) Is in respect of a tort committed in Manitoba; or b) Is in respect of loss or damage sustained in Manitoba arising from any cause of action, wherever committed; or c) Is against a person outside Manitoba who is a necessary or proper party to a proceeding properly brought against another person served in Manitoba. 41. The plaintiff therefore claims as set out in paragraph 1 hereof. June 16, 2015 DUBOFF EDWARDS HAIGHT SCHACHTER 1900 - 155 Carlton Street Winnipeg, Manitoba R3C 3H8 HARLEY I. SCHACHTER Telephone (204) 942-3361 Fax: (204) 942-3362