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Posts in the ‘Personal Injury’ category

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

Posted on April 30th, 2010 by Ryan J. Mahoney

As a commercial litigator, much of my day is spent in a courtroom addressing complex business issues and disputes.  I love it.  A big reason I enjoy what I do is it allows me to remain in a competitive environment. Much of my competitive edge comes from playing sports, especially hockey.  Growing up in Fargo, North Dakota, hockey is not optional.  It’s a way of life.  But since becoming a lawyer, I see the application of the law in everything in life, even hockey.  It’s forced me to change the way I play and watch the sport.

The best example of the law crossing over into hockey is when Todd Bertuzzi punched Steve Moore from behind in March 2004, 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?  I guess 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.

The author, Ryan Mahoney, is available to be contacted to discuss this or other Business or Commercial legal issues.

A Colossus Mistake

Posted on January 26th, 2010 by The Firm

Colossus is a claims evaluation software program used by 25% of the insurance companies to assist with determining the settlement value of personal injury claims. The following companies use Colossus: Allstate, American Family, CNS, Farmers, The Hartford, Met Auto and Life, Travelers and USAA. While the insurance companies claim that the program is just a tool to aid its adjusters, many adjusters have come forward saying that the Colossus numbers are those used for settlement offers.

We normally caution our clients against trusting insurance adjusters. But at least adjusters are human and can look at photographs, listen to eye witness statements, take into account pain and suffering, and recognize drastic life-style changes after an accident. Colossus isn’t human. It uses formulas, not compassion. A computer cannot give consideration to the effects of losing your job, permanent scarring, painful medical procedures or lost time with your family. Colossus looks at the entered data only. It will search for surgical procedures, diagnostic testing (MRIs, x-rays, CT scans) and lost wages. It will determine what your medical diagnosis is and assign a certain dollar value according to that diagnosis.

Juries do not evaluate claims like this. Think about this situation – you are in a car accident and while your pain is immediate, you hope it will go away. When it doesn’t, you go to your doctor who runs several tests on you. All the tests are normal. Although there is nothing that can be done to help you medically, you experience daily pain. You cannot hold your grandchildren. You can no longer play golf. A jury would find that you have suffered a loss. Colossus, however, would consider you to have no injury at all. To trust Colossus as the authority on what your claim is worth would be a huge mistake. You have already been injured. If you are dealing with an insurance adjuster, it is in your best interest to hire an attorney who has experience with Colossus so that you are not injured again.

To learn more, contact Robert D. Rowland.

Check Yourself Before You Wreck Yourself!

Posted on December 21st, 2009 by The Firm

Been in a car accident?  Check out these 7 deadly sins that can wreck your case.

1.  Failing to call the police - Don’t ever assume that it will later be obvious what happened.  Call the police and tell your story.

2.  Providing a recorded statement to an insurance adjuster - Whether it is your company or the other driver’s, don’t speak to the adjuster without first talking to an attorney.  Despite what the commercials say, the insurance company is not on your side – you are not in good hands.

3.  Failing to see your doctor after a traumatic event - You may not think you are hurt but you are not a doctor.  If for, whatever reason, you didn’t go to the hospital from the scene be sure to follow-up with your primary care physician as soon as possible.  Insurance adjusters, and more importantly, jurors, notice when you take too long to make that appointment.  They will say, he couldn’t have been that hurt, he didn’t see a doctor for a month!

4.  Failing to be honest with your doctor - If something hurts, tell your doctor.  If it doesn’t hurt, please don’t say it does.  This is a common theme you will hear from us – be honest.  If you are honest, you have nothing to be nervous about.  Don’t conceal prior injuries.  Don’t assume that your minor pain is no big deal.  Let the doctor do his job.

5.  Talking to your doctor about a potential lawsuit - If you walk into your appointment asking if you will get money for your injury, your doctor isn’t going to trust you and neither will the jury.  Keep your lawsuit and your medical treatment separate.  Most doctors do not want to be involved in a lawsuit.  If you seem focused on your case, it may compromise your medical treatment.  Your first priority should be your health.

6.  Missing or showing up late for medical appointments - If you don’t care about your health, why should the insurance adjuster?  Better yet, why should the jury?  Missed appointments are indeed something the jury will hear about.  Just don’t do it.

7.  Failing to be honest with your attorney - We are here to help you.  If you aren’t honest with us, we cannot help you.  The insurance company will pay large sums of money to prove you aren’t hurt.  If you say you can’t move, they will try to videotape you mowing the lawn.  We need to always be updated on your health status so that we can properly represent you.  Finding out at trial that you aren’t as hurt as you said you were is too late.  Likewise, if you have a skeleton in your past that could affect the case, it is better to be up-front with us.

To learn more about Personal Injury, contact Bob Rowland.

$1.3 Million Award Against Missouri Department of Transportation

Posted on November 24th, 2009 by The Firm

A former member of GHAR represented the family of Jemma Dant, a 28 year-old woman who was tragically killed on December 6, 2005. Ms. Dant, on what would have been her second day at a new job, was sitting in traffic on westbound 44 at Vandeventer. Traffic backup was so severe that Ms. Dant was 1450 feet from the exit. The backup caused her to sit, stopped, on the actual interstate where cars were traveling at high speeds. At the same time, a tractor trailer was traveling in the middle lane. The truck driver saw that his exit was after Vandeventer so he merged right. He saw that traffic was stopped and although he tried, was unable to stop his truck resulting in a collision with Ms. Dant’s vehicle. The collision was so violent that it shoved Ms. Dant’s car underneath the tractor trailer stopped in front of her, killing her instantly.

We all know how big and scary semi-trucks can be, especially when traveling fast. Most people fear driving too close to a semi because we know it is impossible for a, 80,000 pound truck to stop quickly. MoDot knew that traffic was backing up at this location for two years prior to this accident. In fact, it had a plan in place since 2003 to try to correct the problem. Even though it knew of the danger, MoDot did not warn motorists of the stopped traffic. We filed suit against MoDot and the truck driver, on behalf of Ms. Dant’s family. We settled out of court with the truck driver and his family.

The case was tried to a panel of three Arbitrators on November 9, 2009. We argued that the stopped traffic on the highway caused a dangerous condition that motorists should have been warned of. MoDot could have put in place signing telling thru traffic to stay out of the far right lane. It could have put up signing warning motorists of the traffic backup. We see signs similar to this all over today. MoDot had no answer as to why there were no signs. They didn’t think the signs were needed. A MoDot engineer even argued that putting up a sign would have been too difficult because the wind would have blown it down.

The Arbitrators agreed with us that MoDot was partly responsible for Ms. Dant’s death. They agreed that while the truck driver was to blame, MoDot shared that blame for failing to warn motorists, especially out-of-town motorists. An award of $1.3 million was entered in favor of the family. According to Missouri law, MoDot can only be liable up to $378,814 in such a case. This award will be reduced to the current cap.

This was one of the most unfortunate cases I have ever worked on not only because of the immense loss, but because it was preventable. Hopefully, this case will be a reminder to MoDot, and other public entities, that corners should not be cut when it comes to human life.

To learn more, contact us

Personal Injuries and Workers’ Compensation – Don’t Speak to the Insurance Company!

Posted on November 24th, 2009 by The Firm

Nothing is more frustrating to me than when an insurance company takes advantage of an injured person. It happens frequently. As soon as you notify the insurance company of your injury, whether it be from a fall, injury at work, or automobile accident, the insurance company will immediately try to take your recorded statement. Is the adjuster doing this to help you get compensated for your harms and losses? Absolutely not! He/she is trying to box in your story. The insurance adjuster knows it is unlikely that you have already hired an attorney to help you so the adjuster will try to get you to speak early. An attorney can help you avoid certain pitfalls – like providing details you aren’t sure of, downplaying your injuries, and providing irrelevant information.

If you are asked to provide a recorded statement, kindly tell the adjuster that you will be happy to do so, after you hire counsel. Then, hire counsel! We can walk through the likely questions with you and discuss your case. You likely have questions – the insurance adjuster is not the one to ask. The insurance company can, and will, withhold any benefits due to you until you provide a recorded statement which it is why it is crucial to find legal representation quickly. If you were in an automobile accident, it may make sense for you to contact your own insurance company but there are exceptions. You need to speak to an attorney about that question. Until you hire an attorney, follow your doctor’s advise, get well, and do not speak to the insurance company.

To learn more or to discuss Workers’ Compensation, contact Robert Rowland.

Be Picky When Hiring an Injury Attorney

Posted on November 24th, 2009 by The Firm

Whether you were injured in Illinois or Missouri…whether you were injured at work, on property, by a doctor, by a product, or in an automobile, finding the right attorney for you will be one of the most important decisions you will make. There are lots of lawyers out there – some are alike but some are very different. Would you go to just any doctor? Would you buy any house? No. Big decisions need to be made according to what is right for you.

Anyone can buy a fancy ad these days. That doesn’t make him a good lawyer. That doesn’t mean he will listen to your needs, and be responsive when you need him to be. Ask yourself what you expect from your attorney and then research and ask around to find the right match. Check out the attorney’s prior success and read testimonials. Most importantly, at least speak to or meet with the attorney in person before you hire him or her. If you do not feel comfortable with the attorney, it probably isn’t a good match.

Do you want a huge firm with so many cases that the attorneys are too busy to work on your file? Or do you want a smaller firm who is selective in what cases it takes so that the attorney can provide you with individualized attention? Do you want a firm with a proven track record and respected in the community? Do you want a responsive attorney that you can get a hold of? Do you want an attorney who will work on your file until completion or one that will pass your file off to other attorneys? These are all important issues that may affect how pleased you are with your choice of counsel. Choose wisely.

To learn more about hiring an attorney, contact Robert Rowland or fill out our contact form.