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Fowl

Official files lawsuit against Wideman & Flames

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IMO this looks more like a workers comp claim to me since Wideman was diagnosed with a concussion.  Hard to prove intent on Wideman if his consciousness is impaired.  Seems the same would apply to an official injured in a pile up, or struck by a puck.  Some rumblings by Flames fans that they have unfairly penalized in concert with Wideman's actions since last season; this is referred to as the Wideman effect.

http://www.sportsnet.ca/hockey/nhl/west-coast-bias-examining-wideman-effect/

Edited by Fowl

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The arbitration decision won't influence a court, though at least it provides a hint at what the facts could be.  I'm not sure how a jury would decide.  The video of the incident shows Wideman sort of grab at his head after his body is pushed (it didn't look that hard in the video i saw) against the boards.  

Not sure how the law works out on this.  If you're drunk, you don't have intent to cause a death by car accident, but you chose to drink in the first place, and it's reasonable to know that you may be deciding to drive later, and so the law puts the onus on you, even though you weren't compos mentis.  

Wideman put himself in the game, like all players, and it's foreseeable to have concussions... I guess he could argue with a straight face that he didn't have intent to hit the referee, but did he intend to hit someone on the other team instead?  Mistake of who you are trying to harm is not a defense.   

Alternatively, if I forced narcotics on you, and then you ended up hurting someone while affected by the narcotics, you'd have a strong argument against any part of it being your fault.  If Wideman was actually feeling the effects of a concussion caused by another player, maybe the legal situation is closer to this.  Still, players are imbued with informed consent with respect to common injuries on the ice (otherwise every corner play would be an assault).

Wideman has to argue that he just plain wasn't in control of his body at that point, which is basically a temporary insanity plea.  Even then, that kind of plea is typically only a defense against criminal liability, not civil liability.  

The other strange thing - I don't think I've seen the Queen sue for medical damages before.  I thought the whole idea of socialized medicine was that lawsuit damages awards for personal injuries would be a lot less, because you didn't count medical costs.  Maybe she can come in for some $$$ when the harm is alleged as intentional.  I guess that makes sense - society takes the hit with negligence (an incentive to protect yourself and be careful), but goes after $$$ when the harm is intentional (an incentive to not intentionally harm someone).  Shrug. 

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22 hours ago, Fisix said:

Wideman has to argue that he just plain wasn't in control of his body at that point, which is basically a temporary insanity plea.  Even then, that kind of plea is typically only a defense against criminal liability, not civil liability.  

Henderson just has to show that it is more likely than not that Wideman wasn't concussed and did it intentionally, right? Heck, he probably doesn't even need to show that Wideman wasn't concussed, just that there was a more than 50% likelihood that he did it on purpose.

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What an ugly situation, hope Henderson recovers, I didn't realize he was unable to return after that. I don't know what to say about the lawsuit, but it looked pretty clear to me that Wideman was loopy when he got up from the hit, but he also clearly measured the vicious attack on the vulnerable official. One of the worst abuses of an official I've seen.

I'm sure they'll settle for a lesser amount, but what were the Flames thinking? They should have dumped Wideman after that and distanced themselves from the incident.

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54 minutes ago, nieder said:

Henderson just has to show that it is more likely than not that Wideman wasn't concussed and did it intentionally, right? Heck, he probably doesn't even need to show that Wideman wasn't concussed, just that there was a more than 50% likelihood that he did it on purpose.

I think the video shows he did it intentionally.  Separately, Wideman can argue that he wasn't in control of his faculties, and so regardless of what the video shows, he can't be considered to have the mental ability to form intent.  I believe the standard of proof is preponderance (greater than 50%).  

Was he concussed?  Was he concussed enough not to recognize what he was doing, and on autopilot?  If he wasn't responsible, was the league responsible?  There's all kinds of questions.   

Unless there's a trick in Canada law, I think it's a complete crap shoot whether a jury thinks he was out of it enough not to be responsible for his actions.  That, to me, means settle ASAP.  While Wideman did clutch his helmet, he also had just gotten pummeled by a player and didn't get a call that he might have expected (though it was a linesman), and so there's motive to take it out on the ref.  There's also motive to take it out on any opposing player... and like I mentioned above, mistake of recipient of a beatdown isn't a defense.  Even if he was blind and couldn't tell the difference between the ref and an opposing player, because of the concussion, you don't get to shirk responsibility just because you meant to punch a different guy.  I think you'd have to find a ridiculously hockey-player-sympathetic jury for Wideman not to lose.

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This will settle for an undisclosed amount that is nowhere near the $10M figure. IMO, Henderson screwed himself because he finished the game. That's another 28 minutes of game time that he was out there skating, conducting face offs, and jumping between players In hockey scrums. He was even the guy who dropped the puck on the very next face-off after that hit. How does he even conduct that face off, let alone ref for another 28 minutes, if he has just ruptured two discs in his neck? Its still a stretch, but I could maybe see him finishing the period solely due to adrenaline. But coming back out for the 3rd after the 10 minute period break? Hmmmm.... You sure you just ruptured two discs, Don?

So I think he's going to have trouble with causation for all of those "permanent" injuries due to him staying on the ice. If I stomp on your foot and then you immediately go for a 5 mile jog, you've likely contributed to the severity of your own injuries. No jury (do they have those in Canada?) would blame my foot stomp for the entirety of the injuries in that instance.

I also think he'd have to prove that his injuries didn't exist prior to the hit, particularly his back and neck injuries. For a guy who has spent his entire life in the middle of hockey scrums, having players playing punch him in the back of the head while he holds another player's arms down to prevent a line brawl, I don't see how he can prove that. The defense will have 1300+ game tapes to find a single punch or an errant stick connecting with his back, neck, or shoulder to bring into question Wideman's responsibility for the permanency and/or severity of each injury.

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yeah, but if you show all that to the jury, you're going to confuse them and probably make them think you're snowing them on the real damage done by the intentional act, if they have any sympathy for the ref at all.

I think you can probably pretty easily wipe away the continuing to play issue just by saying it didn't feel bad, probably because it was game night.  I've reffed through an ankle sprain in the first half of a 90 minute game, and I didn't feel it after the 10 minute break in between halfs... i only started to feel it after i got home and started to relax.  I have to imagine he has evidence of the injuries...

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^^ That's not really how it works. There's $10M on the table. The defense will have plenty of experts with a lot of initials after their name to clearly explain to the jury how much more damage Henderson did to himself by finishing the game. Especially with respect to the concussion. Rule #1 after you are concussed is to cease all activity immediately or else you risk permanent brain damage. You actually don't even need an expert to learn that. You can read that anywhere and everywhere in the concussion literature available online.

I think the real question here is how was Henderson permitted to stay on the ice? Are the concussion spotters not paying any attention to the zebras? If not, doesn't THAT seem like actionable negligence on the part of the league and the referees union? So why are they not named in the suit too? Seems like someone should have had the good sense to pull him off the ice and subject him to the protocol, no?

oh, and you probably did more damage to your ankle by continuing to run on it for another 45 minutes too. You're lucky you didn't cause permanent damage, because I don't think a jury would have given you any money if you tried to sue the league or the parks and recs association for their crappy field causing your injury. 

;)

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might depend on the Jx whether there's shared fault for post "intentional act" incidental injury - negligence damages might be universally dolled out proportional to attributable damage in a series of acts, but intentional act damages, i think not.    

plus, if we're going to think about holding Wideman blameless because he had a concussion, then we also have to think about whether Henderson continued on after making a "real" choice.  frankly, if you argued I injured myself by continuing on after getting hit intentionally, I'd counter that the only reason I continued on was because I was severely brain addled by the hit, and so the hit is still the root cause.  the league might be on the hook too, but maybe the Flames medical staff take responsibility on game night? 

I'm sure I did extra damage by continuing to ref, but the story was more about how self-evaluation sucks, even with 10-15 minutes in between periods/halfs, and no concussion.  

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Page 15 covers some arbitration issues.  6.3(b)(4) sates that the Commissioner shall have full and exclusive jurisdiction and authority to arbitrate and resolve any dispute between a player and any official of the League, and 6.3(b)(5) seems to be a catch all - any dispute involving a Member Club or any players or employees of the League... that in the opinion of the Commissioner is detrimental to the best interests of the League or professional hockey or involves or affects League policy.  

So, that looks to cover the suit against the player, team, and league, by the referee (an employee of the league, or an official of the league).

Not entire clear if the league officials/referees are employees of the league... But see, page 17 - 6.3(i), and see page 22 - 8.1(d) - this lists "employee" different from umpire, referee, and linesman, but they are all listed as "of the League."  I'm leaning towards the referee being an employee of the NHL, and the Commissioner has decided that in his opinion he should be resolving the dispute, at least as between league employees and teams and players, through arbitration.

The one caveat - unless the NHL signed some special deal with the Alberta government, the CON doesn't appear to cover the Queen's suit for compensation of the medical costs.  Not sure how that plays out.  Probably separate settlement.

That said, it's all fine and dandy to have the constitution, but it's not effective with respect to the referee unless he knowingly agreed to be held to the limits stated in the CON.  This is likely included in an agreement he signed with his union, but if he's nuking his relationship with the league and the union as well, he could argue he wasn't made aware enough to be held by those limits.  You might also be able to argue that even though the CON is in place, the type of acts contemplated in the suit aren't acts that can be arbitrated (some acts are carved out by statute), OR you can argue that the act perpetrated on the referee was not covered by the CON.  

There's actually some support for this last argument within the CON itself - see page 15 - 6.3(b)(2) - "(unless such dispute is unrelated to and outside the course and scope of the employment of the disputants)."  There's a good argument that the intentional attack was outside the course and scope of the employment of the player, whereas an accidental injuring of the referee would not be outside the course and scope.  Of course, that language is only in 6.3(b)(2), not (4) or (5) (the provisions that seems to be at play here), but I think there's at least a chance that argument could fly... If the judge allows the Queen to sue, then he might use such argument as an excuse to allow the rest of the suit to go forward in the courts.

Anyway, that's my short take.  Anyone know for sure whether the referee was an employee of the NHL?    

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22 minutes ago, Fisix said:

Page 15 covers some arbitration issues.  6.3(b)(4) sates that the Commissioner shall have full and exclusive jurisdiction and authority to arbitrate and resolve any dispute between a player and any official of the League, and 6.3(b)(5) seems to be a catch all - any dispute involving a Member Club or any players or employees of the League... that in the opinion of the Commissioner is detrimental to the best interests of the League or professional hockey or involves or affects League policy.  

So, that looks to cover the suit against the player, team, and league, by the referee (an employee of the league, or an official of the league).

Not entire clear if the league officials/referees are employees of the league... But see, page 17 - 6.3(i), and see page 22 - 8.1(d) - this lists "employee" different from umpire, referee, and linesman, but they are all listed as "of the League."  I'm leaning towards the referee being an employee of the NHL, and the Commissioner has decided that in his opinion he should be resolving the dispute, at least as between league employees and teams and players, through arbitration.

The one caveat - unless the NHL signed some special deal with the Alberta government, the CON doesn't appear to cover the Queen's suit for compensation of the medical costs.  Not sure how that plays out.  Probably separate settlement.

That said, it's all fine and dandy to have the constitution, but it's not effective with respect to the referee unless he knowingly agreed to be held to the limits stated in the CON.  This is likely included in an agreement he signed with his union, but if he's nuking his relationship with the league and the union as well, he could argue he wasn't made aware enough to be held by those limits.  You might also be able to argue that even though the CON is in place, the type of acts contemplated in the suit aren't acts that can be arbitrated (some acts are carved out by statute), OR you can argue that the act perpetrated on the referee was not covered by the CON.  

There's actually some support for this last argument within the CON itself - see page 15 - 6.3(b)(2) - "(unless such dispute is unrelated to and outside the course and scope of the employment of the disputants)."  There's a good argument that the intentional attack was outside the course and scope of the employment of the player, whereas an accidental injuring of the referee would not be outside the course and scope.  Of course, that language is only in 6.3(b)(2), not (4) or (5) (the provisions that seems to be at play here), but I think there's at least a chance that argument could fly... If the judge allows the Queen to sue, then he might use such argument as an excuse to allow the rest of the suit to go forward in the courts.

Anyway, that's my short take.  Anyone know for sure whether the referee was an employee of the NHL?    

Since Steve Moore's suit against Todd Bertuzzi was allowed to proceed, I'd guess that the bolded is where jurisdiction with the courts and not with the Commissioner kicks in.

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