Alberta boy, 9, sues 11-year-old for injuring his finger with a toy dinosaur at daycare
Usually, if a child swats another child with a toy dinosaur, it does not cause catastrophic injury.
Usually, if a child gets hurt at a daycare, it is the daycare owners who get dragged into court.
And usually, if someone goes to court claiming someone else owes them thousands of dollars to compensate for a finger that three years ago was “essentially severed at the bone but still attached,” they bring along some medical records to illustrate such a gruesome claim.
A court case newly decided in Grande Prairie, Alta., bucked all these trends.
It also offered what a judge called a “quite rare” instance of child litigants squaring off against each other in civil court, a nine-year-old suing an 11-year-old for the tort of an injury at daycare.
This type of lawsuit raises all sorts of problems, the trial judge noted, including concerns about a child’s capacity to make decisions and to give voluntary consent to assuming the risks of litigation, which can often involve paying the other side’s legal costs if you lose.
The plaintiff did lose here, as it turned out, but no costs were ordered against him. He is still only 13 years old. His finger has healed nicely.
Fortunately, there were no $1,000-an-hour hotshot litigators involved when the trial of Elijah Dominic Robinson against Xavier Fellin went ahead last month before Judge Brian Robert Hougestol of the Alberta Court of Justice in Grande Prairie.
Procedural rules required that each child had a litigation representative: Nsamba Mamisa Robinson for Elijah, and Courtney and Josh Fellin for Xavier. But the action was formally child versus child. The decision does not say if the litigation representatives were the children’s parents, or other relatives.
“Although not now relevant, I will say that if liability was found, the damages sought would have been $10,000.00 in general damages plus out-of-pocket expenses,” the judge wrote.
The plaintiff Elijah testified, but the judge found his descriptions of the incident were “not very detailed,” as he was trying to remember events from three years previously when he was younger. His mother also testified, and so did the mother of the defendant Xavier.
At issue was a dispute over a toy dinosaur that took place between the two boys at 11 o’clock in the morning on Aug. 9, 2022, at a daycare in Grande Prairie run by a non-governmental organization that has since closed down. Neither boy previously knew the other very well.
The judge does not record what sort of dinosaur this was, whether fictional like Barney or historical like triceratops, but he does describe the toy evocatively as “about the size of a 500ml water bottle.”
A “swatting match” ensued, in which the defendant Xavier used the toy to “strike at” the plaintiff Elijah, the younger boy. The dinosaur hit his hand, causing what the judge accepted was a “serious dislocational fracture” to the ring finger on Elijah’s right hand, which required surgery or else the finger “would apparently have been lost.”
“Unfortunately,” the judge wrote, “no actual hospital or doctor’s records were produced.”
Justice Hougestol walked himself through the legal issues in his recent judgement .
There was no evidence the defendants parents, who were later added to the case as co-defendants, did anything wrong. They did not give the boy a dangerous weapon, there was no lack of supervision, no encouragement, and no evidence of bad parenting.
Elijah’s mother, as the judge put it, “seemed fixated” on the fact that Xavier’s parents did not contact her after the injury.
This might have been “polite and courteous,” the judge observed, but there was no legal obligation. The daycare likewise shared no information because of privacy or liability reasons. It was an “awkward situation,” the judge noted, but “failure to make that contact or to offer to “help out” does not found legal liability.”
For Xavier’s part, the judge found his swatting with the dinosaur was not part of “any concerted or intentional assault” on Elijah. In the end, he decided this was a “highly accidental fluke from children engaging in typical enough child activities.”
“Reasonable people expect the possibility of children having minor disagreements and minor altercations,” the judge wrote. “Children in these situations are within the expected scope of risk of injury, especially a difficult to foresee risk. For these reasons I dismiss the Plaintiff’s claim against the minor child.”
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