Reasonable Doubt: Steve Moore vs. Todd Bertuzzi

The lawsuit of Steeve Moore versus Todd Bertuzzi: Kevin Yee explains how even the actions of professional athletes are subject to the law.

On March 8, 2004, a hockey game at GM Place ended in chaos when Todd Bertuzzi skated from behind and [insert adverb] [insert verb]-ed Steve Moore. This ongoing story is almost 10 years old and it won’t go away. For those sick of the saga, it’s best to look away!

The latest development is that the civil trial is slated to start this year on September 8. It is set to be heard before a jury at the Ontario Superior Court and is expected to last up to three months.

In the 10 years that have passed, a lot has happened. Bertuzzi was given a lengthy suspension in the NHL and received a conditional discharge in B.C. provincial court on the criminal charge of assault causing bodily harm. Most of the individuals involved have changed teams or retired. The NHL has gone through two lockouts since then. The international headlines faded away and the world seemed to move on.

As for Moore, he was never the same after the so-called Bertuzzi Incident. At that time, he was a 25-year-old forward in his breakout rookie year with the Colorado Avalanche. He suffered a concussion and a neck injury that cut his career short.

Moore started a civil lawsuit in 2006 against Bertuzzi, the Vancouver Canucks organization, and its owner Orca Bay. Since then, the lawsuit went through years of procedural wrangling between the parties. The delay may seem shocking. Early on, the parties had to sort out whether to have the lawsuit in B.C., Colorado, or Ontario. In fact, Moore started a suit in Colorado but their courts felt Ontario was a more appropriate jurisdiction. The delays may also be chalked up to the nature of the injuries suffered. With a brain injury, one or more parties may have wanted to see how his recovery progressed before pinning down a trial date. Of course, there is also the logistical issue of finding enough court time for a trial of this size.

Moore is seeking tens of millions in damages. He bases his lawsuit on the torts of negligence and assault. Moore included Bertuzzi’s employers (Orca Bay and the Vancouver Canucks organization) because Bertuzzi’s actions happened in the course of employment. Moore is alleging that his employers should be vicariously liable for the actions of their employee. He is also saying that his employers were negligent because they should have done more to have prevented the incident.

At its heart, this case is like a personal injury lawsuit involving a car accident or a fall in a grocery store. There is a plaintiff seeking damages as a result of an alleged wrongdoing. The plaintiff must first prove that the defendant(s) was at fault in the eyes of the law (i.e. liable). If successful, he’ll then need to prove his loss (i.e. damages). What makes this an interesting case are the complicating circumstances.

On the first issue of liability, it is tempting to oversimplify this as a clear cut assault but there are many contextual factors the court will have to consider. The alleged wrongdoing was a physical attack but it happened in a game where individuals are professional athletes who expect a certain level of physicality. The game itself was a rematch between division rivals; weeks earlier, Moore made a controversial hit and became the target of various threatening statements by several Canucks to the media. The sheer number of individuals involved also complicates matters. There could be evidence from a host of witnesses such as members of the hockey teams, their coaching staff, and their executive offices on what was said in the locker room, on the ice, in the executive office, et cetera. The court will likely consider these factors to determine which defendant is liable and to what extent they are liable.

Assuming Moore can prove that the defendants are liable, he must justify the millions that he is seeking. What would he have earned if he didn’t suffer his injuries? How long would he have lasted in the NHL? What would he have done with his Harvard education after his NHL career? What is he capable of doing now? Both sides will have expert witnesses to give medical diagnoses and prognoses, psychiatric assessments, vocational consultants to help the court come to these conclusions. I wonder if any side will get Don Cherry or Bob Mackenzie to show up and give their opinion on what kind of career Moore would have had!

Only the parties directly involved with this case know the likelihood of this lawsuit proceeding to trial. The parties may reach a settlement before, or even during, the trial. The trial could get adjourned as it has several times before. If it goes to trial in September, it certainly has the makings of a very intriguing case study. Will this pave the way for more lawsuits between players in sports? Do players need to be more careful with what they say against one another? What responsibility does the court think the team management and coaching staff have with in-game actions?

A word of caution: You should not act or rely on the information provided in this column. It is not legal advice. To ensure your interests are protected, retain or formally seek advice from a lawyer.

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