NHL player uses concussion defence to negligence claim by linesman

The $10 Million case of NHLer Dennis Wideman and a Linesman

On January 26, 2016, the Calgary Flames hosted the Nashville Predators in a regular season game.  Midway in the second period, the Flames’ veteran blueliner Dennis Wideman took an awkward hit in the corner and his head spun into the glass.  Shaken up, he immediately skated towards his bench as the play continued down the ice.  As he approached his bench, a linesman skated backwards into Wideman’s path.  Wideman reacted with a swift two-handed shove to the linesman’s back.  The unsuspecting linesman crumpled headfirst towards the boards.  It was a shocking case of abuse of an on-ice official.  Watch the replay and come to your own conclusions.

There was an uproar in the hockey world.  Wideman pleaded that the hit was accidental.  He maintained it was not an intentional hit because, in the moments beforehand, he suffered a concussion himself.  Wideman was suspended for a staggering 19 games without pay.  He challenged his suspension at an arbitration and had his sentence reduced to ten games.  Wideman returned to finish that season and has since played out one more.  And all this time, that linesman never returned to work.  And so a $10 million lawsuit arose.

Last month, linesman Don Henderson started his lawsuit in the Alberta Court of Queen’s Bench.  He is suing Dennis Wideman and the Calgary Flames.  His alleged injuries are numerous and include a concussion.

As any civil case of personal injury, this boils down to two questions.  First, did Wideman’s actions qualify as a legal wrongdoing such as negligence?  A negligent action has various elements that need to be proven.  That’s why the lawyers on both sides will be searching for evidence relating to those elements.  They might try to obtain witness statements taken by the NHL or the NHLPA (players’ union).  They’ll get the video footage of the game itself from as many camera angles as possible.  They could compile Wideman’s interviews and public statements about the hit.  They could reach out to anyone who witnessed the event such as players, trainers, coaches, and officials.

Unlike the typical personal injury case, we have a high profile athlete, a televised event, and a strange set of circumstances leading up to the incident itself.  Does Wideman’s concussion excuse him from negligence?  That argument draws parallels with another defence.  It’s similar to when the courts decline to blame a driver who loses consciousness due to an unknown medical condition and in turn causes an accident.  Similarly, Wideman might argue that he didn’t know what he was doing because he was so woozy.  The fact that Wideman suffered a concussion himself may have helped reduce his suspension by garnering him sympathy.  But whether it amounts to a successful defence on alleged negligence in a civil court is a different matter.  This “concussion defence” seems a bit of a stretch but the medical evidence of Wideman in the minutes after his own hit will be key.

Let’s say that this “concussion defence” fails and that there is enough evidence to find Wideman negligent.  If so, we need to consider the second question of a personal injury case – what are the damages owing to Henderson?  Damages are awarded in various ways such as for pain and suffering, past and future income loss, lost expenses, and future medical care.  His medical condition will be scrutinized.  Medical records will be combed over and Henderson may be examined by doctors hired by the lawyers.  The two sides may argue the cause and severity of Henderson’s injuries.  They could also argue over his likelihood of recovery.

In Henderson’s statement of claim, he alleges over $10 million of damages.  The bulk of this is for the income loss that he, as a veteran NHL linesman, could have earned had he not been injured.  On this issue, the lawyers will need evidence to paint a picture as to what work Henderson would have done if he hadn’t suffered his injuries.  Was his job stable?  Was he good at his job?  Would he have been promoted?  When would he have retired?  And what is Henderson capable of doing with his injuries?

Ultimately, this case is headed towards one of two results.  Either the parties will agree in an out-of-court settlement or they will go to a trial.  From now until then, both sides will investigate to learn their case’s strengths and weaknesses.  At some point, there will likely be negotiations based on those investigations.  Just like the last high profile lawsuit involving NHLers – Steve Moore v. Todd Bertuzzi – there will be a tremendous pressure to resolve this quietly and out of the public eye.  That pressure will only ratchet up as the case gets closer to trial.

 

Note: the author is not involved in this ongoing case.  The author’s opinions are not based on firsthand knowledge of the lawsuit or its parties.