Reasonable Doubt: Steve Moore vs. Todd Bertuzzi

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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 re-match 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?

Comments (9) Add New Comment
Buddislander
Moore was about to return to the minors at the time of the incident. It should not be forgotten that Moore sealed his own fate when he gave a cheap shot to Marcus Naslund resulting in a concussion. It is hard to see why he should be able to sue anyone. He will however come away with some monies.
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ACMESalesRep
I think only the most die-hard Canucks fans would think that Moore is somehow not entitled to seek redress for Bertuzzi's hit. The more interesting aspect of the case is the punitive damages being sought. There is an argument to be made that the team as it now stands, having changed ownership, management, and players since the incident, can hardly be held accountable for anything beyond Moore's losses; however, there's also an argument to be made that the team still preaches a culture of thuggishness and dirty play. The line brawl with the Flames and Torts' subsequent suspension for going after the Flames off the ice don't exactly help the Canucks' case.
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458 Speciale
If Bertuzzi was a smarter hockey player, he would have fought Moore face to face instead of punching Moore from behind and eventually collapsing on top of Moore.

There would be no lawsuit/civil trial if it was a face to face fight with willing participants.
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Proving liability ought to be easy...
This wasn't a consensual fight, it was an attack from behind if I recall. If someone had done it to YOU, dear reader, I am 100% convinced you'd be calling it a "sucker punch".


I don't understand why Colorado was the first jurisdictional choice other than potentially huge American payout potential.

And could the author enlighten us why Ontario would have even been considered as having jurisdiction? New York, as NHL HQ (isn't it?) maybe, but Vancouver seems the hands-down only place to have the trial.

Indeed, the location of NHL HQ would seem irrelevant anyway. And I doubt this would be a jury trial, so one can expect a non-biased judge. Unless it IS a jury trial (if that's possible in a civil suit?), in which case a change of venue makes more sense.



Mr Yee? Your expertise is needed, please enlighten us further!
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Pat Crowe
Moore, cheap shot, blindsided Naslund a franchise player and hurt him bad with a shoulder to the head. However,when it was time for Moore to turn and face the music he chicken shitted out and kept his back turned trying to get away. That is where the men are seperated from the boys. And boy did Moore get separated.
Bert's hit was brutal and ugly but so was Moore's hit on Naslund. All Moore had to do was turn and finish what he started.
But cowards rarely provide proper optics.
Fuck off Moore and go play Ringette with the girls.
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Kevin Yee
It's not commonly noted in the media reports, but Steve Moore is not the only plaintiff in the lawsuit. His parents are also claiming damages for the emotional effect the incident has caused on them. I believe the Moores live in Ontario so that may have factored into their choice of jurisdiction. Of course, I am not involved in this case so I don't know the parties' specific reasons.

More generally, a plaintiff is the one making the lawsuit. They decide on the venue. In the adversarial nature of our court system, it's up to the defendants to take issue with something the plaintiff has done. If the parties disagree on something procedural like the jurisdiction, then the defendant can ask the court to rule on the issue. That's what happened in Colorado and the case was dismissed. I'm not sure if the defendants opposed having the case heard in Ontario as well. It could be that they didn't take issue with it. Conversely, this procedural matter may have been heard before the courts and they felt it was a suitable venue.

And to answer your question, civil trials can be heard before a jury! They happen in BC as well. It's an interesting topic that we may have to raise in a future piece.
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my 2 bits and moore
without overstating the obvious, the violence in hockey is out of control. re: the recent canucks vs calgary game i had sat down to watch with my 7 year old grandaughter telling her how much fun it is to watch hockey and what happens? as soon as the freakin' puck drops, calgary drops their gloves and lay a beating on the canucks and then the whole torts thing. i was disgusted. my granddaughter was confused. it took a lot of explaining to her about how that is not how to play hockey but it was too late. she saw it and remembered it and the damage is done. in the long run bertuzzi was abandoned by the nhl and moore is still paying the consequences, too. i don't agree with what happened, it was terrible. no one should have to lose their ability to earn a living due to their livelihood. how ironic is that? while playing in a game they strove and endeavoured for most of their lives to play, now to suffer the consequences for the rest of their lives. there are no winners here, just losers. we have a commissioner who has been noted for not embracing a safer game. don cherry is right, the under uniform protection is armour. try taking a hit to the head from that. there are those of you out there that would say the extreme hits are just part of the game. in response, i would say that the best hockey is olympic hockey. no fighting, no one gets hurt and the game is what it should be - a game. btw, isn't it time we had a new commissioner of hockey? people have a tendency to become corrupt when in positions of power too long. just sayin'.
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Me
First of all, people seem to forget that in the first period of the game Moore dropped the gloves with Matt Cooke. That should have been where it ended. Moore had no reason to fight again after that especially with someone out of his weight class. The fact that the Canucks were being blown out during the game added to the frustration and instead of trying to turn things around and win the game it just became about getting Moore. Todd Bertuzzi's actions were cowardly just like Shawn Thortons were against Brooks Orpik. Personally, I think Steve Moore should get every dime Todd Bertuzzi has made in the NHL since the incident. To me, Todd Bertuzzi's career should have ended the same night Steve Moore's did.
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Baby gorilla 42
Steve Moore hit Marcus Naslund with a body check that was deemed legal by the NHL rule book . There was no penalty on the play nor after when it was reviewed by the league. Of course in the NHL the inmates run the asylum and Steve Moore had to pay for his legal check. it shouldn't matter if people didn't like the optics of the hit, it was a legal hockey hit and for all those saying Steve Moore should have had to answer for the hit, well then every legal hit in hockey should be open for retribution.
As the trial approaches, many of Bertuzzi's former teammates are refusing to cooperate with Moore's lawyer. We still live in a blame the victim society and it's more important to protect the higher profile athlete than the victim of this senseless assault.
I hope Steve Moore gets every penny he can out of the NHL and the Vancouver Canucks for allowing these types of incidents to occur before during and since the Steve Moore assault
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