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Archive for April, 2010

Bertuzzi’s Gruesome Violence on NHL Ice – Against the Law?

Posted on April 30th, 2010 by The Firm

As a commercial litigators, much of our day is spent in a courtroom addressing complex business issues and disputes. Law in and of itself can be a competitive environment – just like sports – and sometimes the two cross paths.

In March 2004, hockey player Todd Bertuzzi punched player Steve Moore from behind, and in the process, may have changed the legal landscape of professional hockey forever.  Some of you may recall this incident. On March 8, 2004, the Colorado Avalanche were set to face the Vancouver Canucks. There was some bad blood between the teams and it was rumored before the game that the Canucks were looking for revenge.

Bertuzzi, a noted tough guy, attempted to entice Moore into an a fight.  When Moore ignored Bertuzzi’s attempts, Bertuzzi came up from behind Moore and sucker punched him in the side of the face and threw his  head into the ice with the weight of his body behind him.  Moore was unconscious from the blow and suffered a broken neck with fractures in the C3 and C4 vertebrae and a T1 avulsion fracture.  Moore’s professional hockey career was over.

A civil lawsuit followed and is currently pending before the Ontario Superior Court.  When incidents like this occur, lawyers immediately think of the doctrine of assumption of risk.  Basically, this means that a person who voluntarily assumes a risk of harm arising from the negligent or reckless conduct of others cannot recover for injuries resulting from that harm.  This doctrine is always present in contact sports, and for this reason, most injuries in sports are not compensable.

In Illinois, for instance, the Supreme Court expounded on the “contact sports exception” to ordinary negligence.  Karas v. Strevell, 227 Ill.2d 440, 884 N.E.2d 122 (2008).  The Illinois Supreme Court concluded that, “in a full contact sport such as ice hockey or tackle football, a participant breaches a duty of care to a coparticipant only if the participant intentionally injures the coparticipant or engages in conduct ‘totally outside the range of the ordinary activity involved in the sport.’”  Id. at 459.  This is a significant ruling when considering the Court’s rationale.  The Illinois Supreme Court is saying that in situations other than injuries that were intentionally caused, even if the players’ actions are with complete disregard for the safety of the injured player, the conduct must still be totally outside the range of activities for the sport.

The best way to explain this is by applying it to the facts of that particular case.  In Karas, the Court analyzed a situation where a player was checked from behind into the boards when he was skating for the puck.  The Court reasoned conduct such as body checking is within the range of normal activity of a hockey game, even if checking from behind is against the rules.  However, the Court inferred that if the plaintiff had been struck from behind away from the play and action of the game, that may well be a breach of the standard adopted by Illinois.

When applying the above reasoning to the facts in Karas, the Illinois Supreme Court ruled the plaintiff had no case.  Would this same standard make Bertuzzi liable for his actions in Illinois?  The answer is: It depends.

Fighting is an inherent part of professional hockey.  For hockey, more so than other sports, it is hard to draw the line on conduct outside the range of ordinary activity.  Sure Bertuzzi’s actions were intentional, but even he admits he had no intention of injuring Moore.  In hockey, you check or hit opposing players to gain a strategic advantage on the puck.  You are not meaning to hurt players, but rather you want to take them out of the play.

But when you watch Bertuzzi’s actions you will see Moore had no interest in fighting Bertuzzi and Bertuzzi’s actions had no connection to the play.  Surely, a professional hockey player does not expect another player to sucker punch him from behind and drive his head into the ice.  This was an intentional act that ended someone’s career.  The law should not protect such actions among sports’ participants.

In Illinois, the Courts may likely say that getting punched in the face is part of the sport.  However, the fact that Moore was skating away from Bertuzzi and Bertuzzi’s actions were completely unrelated to the play of the game, may make him liable in Illinois. Surely, this is outside the range of ordinary activity in a hockey game.  Bertuzzi gained no advantage on the play by knocking Moore out. I hope the Illinois courts would agree.

Of course, fighting is only allowed in professional hockey, but rulings such as Karas should be concerning for hockey parents, particularly when considering younger players.

Contact us today to discuss this or other Business or Commercial legal issues.

Reserve Sympathy For Asbestos Victims, Not Fallen Profiteers

Posted on April 29th, 2010 by RJ Abernathy

A recent article published by an arm of the US Chamber of Commerce noted that another company “collapsed” under the weight of asbestos claims.  According to this article, 89 such companies have “collapsed” since 1982.  In the latest case, Durabla Manufacturing sold products containing asbestos well into the 1980’s, long after asbestos was recognized as a dangerous and deadly material.

A closer look at the other 88 “collapsed” companies reveals that not only have many of these companies remained in business, but many of them thrived after ‘going bankrupt.’  Walk into any Home Depot or Lowe’s home improvement stores and you will find a large percentage of these “collapsed” companies’ products on the shelves.  For example, the Pink Panther didn’t lose his job when Owens Corning went bankrupt.  Dick Cheney’s former employer, Halliburton, never missed a beat over the past seven years during the Iraq war since filing for bankruptcy protection due to its subsidiaries asbestos liabilities.

In another case, W.R. Grace filed for bankruptcy protection in 2001, even though it has annual sales of nearly 3 billion dollars.  In 2005, the United States Department of Justice filed criminal charges against Grace, including counts for fraudulent transfers of nearly 5 billion dollars just prior to the bankruptcy filing.

In other cases, I think it is hard to argue that these companies should not have “collapsed.”  The miners, manufacturers and purveyors of raw asbestos fibers should have been out of business sooner than they were.  If these companies had heeded the scientific and medical warnings in the 1930’s, 40’s, 50’s, 60’s or 70’s, maybe some of the victims who suffered needlessly would have been spared.  Perhaps these companies would still be in business had they only listened to their own insurance companies rather than their accountants back in the 1930’s and 40’s.  Perhaps these companies would still be around had they worked harder at developing safe substitutes rather than marketing asbestos as the miracle mineral for over 40 years.

So before we break out the black armbands and head out to candlelight vigils for yet another “collapsed” asbestos company, remember that the majority of these “bankrupt” companies are still manufacturing and selling products, still earning and delivering profits for their shareholders.  Please don’t pity a company that chose its course. Instead, let’s remember those folks who were never warned of the dangers of asbestos until many years after these ticking time bombs were inhaled into their lungs.  Let’s remember the men and women who worked for five or ten bucks an hour in dirty and dusty jobs, not the corporations that continue to profit after being relieved of the responsibilities they owe to these men and women who built America.

These companies had a chance to head off asbestos litigation 60 or 70 years ago.  These companies gambled that profits would exceed liabilities.  Thanks to favorable corporate bankruptcy law, in most cases, they bet correctly.

To learn more or discuss your Mesothelioma case, contact RJ Abernathy.

Related post:  Why RJ became an Asbestos Attorney: RJ Abernathy – An Introduction.

Goldenberg Heller Festival of Speed Time Trials

Posted on April 22nd, 2010 by Elizabeth V. Heller

Goldenberg Heller Antognoli & Rowland, P.C. is proud to sponsor the Goldenberg Heller Festival of Speed Time Trial Series.

Produced by Big Shark Cycles in St. Louis, this time trial series will be held for fifteen weeks, beginning Wednesday, April 21st with the first rider off at 6:31 p.m. All riders are required to wear helmets.  The course is a flat, 9.3 mile (15 kilometer) out and back time trial course located near Kilroy’s Restaurant at Smart Field in St. Charles, Missouri.

Registration opens at 5:00 p.m. and closes at 6:15 p.m.   The 1st race begins at 6:31 pm. The registration fee is $20 for the 1st race, $10 for each race thereafter. USA Cycling One Day and Annual License required.

Mark Goldenberg and Liz Heller hope to participate.  Come join us and always wear a helmet.  Happy cycling!

Conversation with Lee Presser – Elizabeth Heller discusses Asbestos and Mesothelioma

Posted on April 3rd, 2010 by Elizabeth V. Heller

Goldenberg Heller Antognoli & Rowland’s Elizabeth Heller sat down with Lee Presser in a three part interview to discuss asbestos and mesothelioma.  Elizabeth discusses the history of asbestos, it’s commercial uses, and the health and legal consequences of exposure.  Elizabeth is a partner in the firm which has over twenty (20) years of experience representing victims of asbestos disease, including mesothelioma and lung cancer.  We think you will find this interview helpful if you, or a loved one, have been affected by this devastating disease.

For more information, please contact Elizabeth Heller or Robert D. Rowland.

Part 1:

Part 2:

Part 3: