Last nitght in Vancouver Todd Bertuzzi broke Steve Moore’s neck when he punched him from behind. The Vancouver Police are talking about laying charges against Bertuzzi. I thought that sports players were generally immune from criminal assult charges during actual play.
If he’s charged will it stick? What will be the charge; ‘assult’? What will be his defense; ‘consent’?
I can think of at least 2 other times on-ice fights have led to police intervention. Once in St. Loius (in the 60’s I believe), several players were carted off to jail, and more recently there was a stick swinging incident in 2000 between Donald Brashear and Marty McSorley.
In the latter, McSorley was convicted of assault and given an 18-month conditional discharge, and suspended by the league for 1 year.
The answer to these questions largely depends on the law as written by the province of British Columbia (or Canada if there is a national law). These are largely difficult questions, and the result could go either way, however, immunity from prosecution is not easily attainable, and requires more than simply playing a sport. I’m sort of biased against this type of cowardly behavior, so take my responses with a grain of salt (though, as always, I try to objective).
In the US, there seems justification for the DA to bring charges or for the police to arrest, based on the fact pattern. Moore should have a cause of action in the civil arena for some intentional tort (depends on the law(s) available in his jurisdiction) probably of battery, or some other type of intentional harm. Likewise, in whatever jurisdiction Moore makes his complain, the DA should have some criminal cause of action, probably a battery of some type. Assault is different from Battery such that an assault is the offer (for lack of a better word) to inflict immediate unwanted touching that results in the fear or apprehension of the unwanted touching. The Defendant has to have fear or apprehension of the unwanted touching, and the tortfeasor needs to have intended it. A battery is the actual unwanted touching that causes harm (damage - but the amount of damage varies according to the type of battery, e.g. emotional or mental harm). Given the actions of Betruzzi, I would argue that his actions due indeed constitute a battery.
The probability of the plaintiff to win, however, depend, imo, on whatever is customarily acceptable actions; of course, all of this based on reasonableness and the assumption of risk involved, i.e. consent.
Out of the hockey rink, it probably isn’t reasonable to expect to be clocked from behind when your walking down the street. Likewise, because Person A hurt Person B, it doesn’t mean that Person A expects Person B to retaliate. But, in the hockey rink, this reasonable standard doesn’t apply.
The key to resolving the Consent issue and the reasonableness of the actions is to decide if retaliation is both reasonable and expected. Many will argue that retaliation and fighting are part of the game. Conversely, it probably isn’t reasonable to expect to be hit from behind with such force to break vertebrae (sp?), or to be hit later for something done much earlier – then again, my hockey player friends tell me that often the players fighting talk about fighting and plan it well in advance (no cite).
Regardless of the damage done, it is the plaintiff who has the burden of proof who has to show that he has not consented to the touching. Expectation or assumption of risk also plays a role in this analysis. If Moore had suffered a broken nose or jaw even, depending on the contact (touching) and events leading up to the battery, the defense could easily argue that it’s part of the game, that there is a reasonable expectation to suffer injuries of that nature. Generally, tortfeasors are to take defendants as they are; e.g. if A batters B with such force to knock any other normal person an inch back, but for some weird degenerative defect, causes B’s shoulder to break, the non-intended extreme damage doesn’t negate the charge, and A is liable for the excess damage he inflicted. However, in a violent sport like hockey, Bertuzzi’s hit on Moore may have been no less common than any other behind the back cheap-shots doled out any other day in the league.
For some interesting reading, you can read Prosser. Prosser is some dude who wrote this treatise (restatement) on Torts, basically, a super in-depth look and analysis of torts in general; a great start for doing legal research and answering tough theoretical questions.
There’s been a few cases in English football of violent or reckless tackles being investigated by the police, such as this, but AFAIK nobody has ever been convicted of an offence.
I dunno about English football, but up in Scotland Duncan Ferguson served three months for assaulting a Raith Rovers player during a game.
How is he doing? Will he walk again? Play again?
http://search.csmonitor.com/durable/2000/02/28/p1s5.htm
http://cbs.sportsline.com/b/page/pressbox/0,1328,5381768,00.html
Civil and criminal liability are both possible. The touchstones would seem to be whether the violent conduct grossly exceeded the rules of the game, or went clearly beyond the degree and nature of violence to which the victim consented by participating in the game. Of course, people have died or been paralyzed with no civil or criminal charges arising at all, whereas some less-severe (still violent) acts have drawn legal sanction. I seem to recall the first big NFL case involved a football player, for the Chargers, in the 1960s suing for battery by way of a vicious tackle that hurt (but didn’t paralyze or kill) him.
There was movment from Moore on the ice after the hit. He also shook hands with the GM in the trainers room after being taken off the ice. The injury, from what I have heard, is cracked vertabra (on the C3 and C4, I believe is correct). Whether or not he’ll play again (at 100%), too early to tell, but I believe a full recovery is expected.