I still think it's a joke he's going after the Orca Bay. I won't pretend to be in the know on details, because I'm not that interested in this case.
But why does Orca Bay have to defend themselves here and not the NHL and NHLPA?
Why would the NHL or NHLPA be liable for Bertuzzi's criminal action?
No joke.
There are two separate legal bases under which the Canucks could be found liable which in the past has been applied to pro sports teams in other sports - the NBA and NFL:
1. Vicarious liability
2, Negligent supervision
Under the law employers are liable in various situations for the wrongful acts of their employees (vicarious liability) and may be guilty of wrongdoing themselves if they failed to defuse a situation or handle players properly (negligent supervision).
By operation of law an employer can be held vicariously liable for the actions of its employees if damage or injury results from the actions of the employee.
If the evidence is that the Canucks and/or Orca Bay did create or materially enhance the risk of Bertuzzi's’s intentionally tortious behaviour, they could be found vicariously liable for Bertuzzi's actions. According to recent Supreme Court of Canada law on this issue if there is evidence that the employer created or enhanced the risk of an employee’s tortious conduct by creating an atmosphere of friction or confrontation, then that is sufficient to fix vicarious liability. It used to be that vicarious liablity only applied to negligent acts but now it can include intentional torts such as battery.
Also see: Steven I. Rubin, “The Vicarious Liability of Professional Sports Teams for On-the-Field Assaults Committed by Their Players†(1999) 1 Va. J. Sports & L. 266 at 280.
In other commonwealth jurisdictions there are similar findings. A case arose as
a result of injuries sustained in the course of a professional rugby match in
New South Wales, Australia. In holding a professional rugby club liable for
the deliberate tortious conduct (an illegal tackle) of one of its players, the
appellate court stated that:
Rugby league is a professional game: it may be inferred that the club benefits from the success of its players; that the players are paid for what they do; and that they are apt to be paid more if they are successful in doing it. Therefore there is, to put the matter no higher, a temptation to do what will win games and ensure that the player appears of use to the club in achieving its purposes. In the circumstances of this case there was, I believe, a clear risk that a player who was "revved up" might yield to the temptation to "stop" [the plaintiff] by whatever means could be employed. These things are, on one view, obvious. But it is proper that, having regard to the way in which the case has been conducted, they be spelled out. And they are, in my opinion, relevant in determining the responsibility of the Club. The court may take a degree of notice of the role which "motivation" or the like may play in achieving success in sporting and other areas of activity. It may be that, in professionalised sport, winning, and not playing, is the object. But motivating to win carries with it consequences. The risk that motivation will, in some, lead to illegitimate means of winning is, I believe, plain. There is a line between what is permitted and what is not. If an employer encourages action close to the line he may, in such circumstances, have to bear the consequences of action over the line. These matters are not conclusive. But, in my opinion, they are relevant in determining, inter alia, whether what was done was within the scope of the employment.
Negligent supervision is a little different as Moore is saying that the Canucks and Orca Bay committed a separate civil wrong (a tort).
The theory of negligent supervision is well suited to professional hockey as the theory is based on a straightforward causal connection between employer fault (i.e. negligence in supervising an employee) and an employee’s tort, a defendant cannot raise the defence that the employee was acting outside the scope of employment (as may occur with a claim based on vicarious liability).
A claim grounded on negligent supervision also provides Moore with the possibility of claiming punitive (i.e punishment) damages, something that is not available in a claim based on vicarious liability. Under Canadian law damages (a court award of money) for what are referred to as "pain and suffering" damages for the injuries and discomfort cause are currently limited to about $320,000 as a result of a series of Supreme Court of Canada court decisions. There is no limit to the amount of punitive damages that may be awarded to a plaintiff.
It is a rare act that would negate voluntary assumption of risk which is why there have been so few actions related to professional sport. There have been successful actions such as in the NBA which also involved a sucker punch. Rudy Tomjanovich, playing for the Houston Rockets of the NBA, was punched in the face by Kermit Washington of the Los Angeles Lakers as Tomjanovich attempted to break up a fight between Washington and a fellow Rockets player. The blow fractured Tomjanovich’s face and skull, crushed his jaw, broke his nose and caused a cerebral concussion which resulted in a loss of blood and leakage of spinal fluid from Tomjanovich’s brain cavity. Tomjanovich brought suit against Washington and the Lakers alleging both vicarious liability and negligent supervision.
The jury rendered its verdict in favour of Tomjanovich, finding the Lakers liable for the injuries caused as a result of Washington’s battery. Tomjanovich was awarded approximately $3.25 million, including $1.5 million allocated as punitive damages. This occurred in 1978 and Tomjanovich's career continued.
In the NFL the leading case is Hackbart vs. Cincinnati Bengals, Inc. which arose out of a National Football League game between the Cincinnati Bengals and the Denver Broncos in which the plaintiff, Dale Hackbart, a defensive player for Denver, was severely injured after a Cincinnati pass was intercepted near the goal line. Hackbart attempted to block the defendant, Booby Clark, an offensive player for Cincinnati, and fell to the ground. Clark, “[a]cting out of anger and frustration, but without a specific intent to injure,…stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff’s head with sufficient force to cause both players to fall forward to the ground.†Hackbart sustained a severe neck injury and was subsequently released by the Broncos. He sought recovery claiming, inter alia, reckless misconduct and, alternatively, negligence. The Tenth Circuit Court of Appeals held that Hackbart’s claim was actionable and should not have been dismissed merely because the injury had occurred during a professional sporting event. The court stressed that “there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.†The case subsequently settled.
As far as club liability on the part of the Canucks, Moore has compelling evidence on his side given the large fine levied against the Canucks. The NHL decision to fine the Canucks $250,000 would be evidence of negligent supervision (and/or vicarious liability - in fact Campbell's language in imposing the fine pretty much tracks the legal requirements to ground such a finding. There is strong external evidence for this claim of negligent supervision and/or vicarious liability on the part of the Canucks and its employees as the NHL imposed a significant fine on the team. In his decision suspending Bertuzzi and fining the Canucks, Colin Campbell noted the team had been warned and that it failed to properly supervise or control its players:
"In light of numerous player comments about Mr. Moore following the Vancouver-Colorado game of February 16, we believe the Vancouver organization ultimately bears some responsibility for monitoring and, to the extent necessary, attempting to moderate the focus of its team," said Campbell. "While the League provided appropriate advance warnings to both organizations... we believe that more could have and should have been done."
You also have the prior evidence of Bertuzzi in which he swears Crawford directed him to make Moore “pay the price†as set out in the Munson article I have linked.
A finding of vicarious liability for the Canucks would seem to be a strong possibility in light of recent Supreme Court of Canada decisions that have brought vicarious liability under intentional torts such as battery where in the past it only applied to negligent conduct.
The additional bonus for Moore in proving a separate tort for negligent supervision by the club is the addition of another claim for punitive damages (beyond that of Bertuzzi's battery itself) that is not available in a claim based on vicarious liability.
The "paying the price" comments by Crawford, bounty comments by May and Burke's comments and in particular the NHL fining the Canucks would all be evidence to support the claims of vicarious liability and/or negligent supervision.
