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A deeper look at the Dennis Wideman lawsuit

News broke on Thursday afternoon about Don Henderson’s lawsuit against Dennis Wideman. Since then, CTV’s Chris Epp – who broke the story and is a good follow for whatever happens next in this suit – has been kind enough to share some documents with us so we actually have a grasp of the suit’s substance.

Here’s everything we know right now.

What’s the claim?

In the Statement of Claim, filed with the Court of Queen’s Bench of Alberta on April 18, Henderson claims two basic things:

  1. “At the time of the incident, Wideman intentionally and deliberately struck Don Henderson.”
  2. “Further, or in the alternative, at the time of the incident, Wideman owed Henderson a duty of care and was negligent in the exercise of that duty…”

The emphasis in the details of Wideman’s duty of care towards Henderson is a few repetitions that Wideman “knew or ought to have known” that his actions would injure Henderson. Essentially, Wideman’s responsible for his actions (and the damages they caused) because there’s a rule against abusing officials, that Henderson was unaware and defenseless, and that the specific circumstances of the incident essentially made injury in the event of such contact easy to foresee.

How do the Flames fit in?

There’s really only one mention of the Flames in the entire Statement of Claim: “The Calgary Flames are vicariously liable for the actions and omissions of their employee Wideman, as described in this Statement of Claim, and for the damages awarded in this action.”

The vicarious liability connection is pretty straightforward. The Flames employed Wideman for the authorized activity of slamming into other competitors on the ice. Since the “unauthorized act” that injured Henderson was very closely connected with the authorized acts of his employment, it would be extremely difficult for the Flames to argue in court that the activities weren’t connected (and that they shouldn’t be liable).

There’s been quite a bit of recent Supreme Court of Canada decisions clarifying the judicial tests for applying vicarious liability, but that’s the gist of it. He was working for them and his illegal actions were related to the activities of his employment, so they’re held liable.

What about Wideman’s concussion?

That’s where things get really tricky. In their well-documented appeal of Wideman’s 20-game suspension, the NHLPA argued that Wideman was concussed and so he wasn’t responsible for his actions. There are a couple issues here:

  1. The concussion wasn’t particularly well-documented at the time and a lot of the medical testing was done remotely and after the fact, which the NHL argued in rejecting the appeal.
  2. A concussion could be used to argue diminished capacity to commit a crime or follow rules – extenuating circumstances are often cited in criminal trials – but they don’t necessarily absolve Wideman of his civil responsibility for Henderson’s well-being during a game. Since this is a civil trial for damages, the standard that has to be met is significantly different.

Arguing “I’m allowed to hit him if I’m woozy” doesn’t really work in the context of 100 years of NHL games, many of which involved players without helmets crashing into each other while managing to avoid on-ice officials. We’ve never had an incident like this in the history of the game, which essentially frames the Henderson side’s argument rather plainly – when these types of things do happen, they need to be treated with seriousness.

What about the NHL concussion lawsuit?

While this suit is progressing, don’t forget that the NHL is currently in the midst of a class action lawsuit from former players regarding head injuries and their long term health impacts. In the context of this kind of ongoing litigation, it seems extremely unwise to allow a case like this to hit open court. If this case hits open court, there would almost definitely be a ton of ugliness in the testimony. Lawyers associated with an NHL club (the Flames) would be arguing about whether a player is or isn’t responsible for when they’re concussed, and there would be an even larger microscope put on the NHL’s concussion protocols. The league’s already suffered some embarrassment as a result of e-mails related to the concussion suit becoming unsealed. They definitely don’t want to deal with any more of that.

Between the potential ammunition given to the lawyers on the other side of the concussion lawsuit and the prospect of having the clip of Wideman decking Henderson running in a loop on Sportsnet for several more months, I would expect the Wideman/Flames side to be motivated to settle this case.

Isn’t $10.25 million a lot to ask for?

The suit’s value ($10.25 million) is based on a few vague calculations:

  • $200,000 in general damages
  • $50,000 in “special damages, housekeeping, yard work expenses and hospital expenses”
  • $10,000,000 in “loss of income, loss of future income, loss of earning capacity and loss of opportunity”

The claim also cites things like “cost of future care” and “loss of capacity to perform yard work” and other things that would be valued during the future action.

NHL linesmen make, on the high end, about $235,000 per year. Given Henderson’s age and his placement on the NHL pay-scale, $10 million is a big ask. But it’s also likely part of a legal strategy where you start with a big ask when you file the suit and things eventually get walked back to some manner of mid-point when a settlement happens.

What happens next?

The Wideman/Flames side has 30 days after the claim was filed – May 18 – to file a Statement of Defense, at which point it seems likely that things will progress towards either a court date or a settlement rather quickly. My feeling is it’ll be the latter, as one side seems to have some incentives to keep things out of open court.

  • RedMan

    I believe Wideman will sue also. The ref and the league failed to protect him and he not only suffered an injury himself because of the linesman dereliction of duty, but is further exposed to risk (lawzuit) because of it. And of course, if the Flames aellis@cacohs.com responsible because of the stupid nonsense posted, the NHL itself 8s responsible.
    Expect a counter suit.

    • Marcellus Wallace

      Not sure how a linesman’s dereliction of duties can be seen as connected to this. Did they miss an obvious off-side? Icing? Not break up a fight fast enough? As I said before, write a big cheque and move on. Wideman might have to play a couple years in Europe to make some money the way Bertuzzi played past his planned retirement days but anyway you argue this as a fault of the ref’s is not going help the Flames.
      The earlier comment about alternate ref’s…from where? The WHL? It’s a small fraternity and the Flames are just going to have to take their portion of the responsibility and get over it.

  • BurningSensation

    This is one of those situations where I feel bad for almost everyone involved. Hendersion because he was badly hurt, list his career, and now is getting smeared by the hockey media as part of lowering that $10m claim. Wideman because he too was hurt, has essentially lost his career, and is facing legal action.

    The only party I dont feel bad for (at all) is the league. They have dragged their feet on concussions and failed to protect the players.

    I just hope the ugliness ends for all quickky.

    • Connor'sGotHart

      This should all be put to bed. Wideman was responsible but he needed the 10 games and that should have been it. Nothing else. This lawsuit reeks of bullsh!t and a cash grab. This should not hamper Wideman in his ability to land a contract , just not a huge contract.

  • al rain

    The logical response from someone who is a Flames fan (and who won’t have to pony up any $) is to say that the billionaire should write a cheque to Henderson for $10.25 million yesterday. But with the understanding that the penalty differential goes back to normal next season.

  • KenBone18

    The linesman and his law team are no better than ambulance chasers. It was a simple mistake. Should everyone involved in an NHL hockey game (player or official) be awarded millions of dollars every time they are cross checked? That’s what this law suit seems to suggest.

    • CussingTortoise

      The argument is Mr. Henderson is not paid to be cross checked and was therefore not expecting a hit exacerbating his injury. Hockey players are paid to get hit referees are not. His career is over and will likely have long term health issues and symptoms. Aren’t hockey players seeing the NHL for essentially the same thing?

      • KenBone18

        The flames broke my heart by getting swept. Shall I sue them for undue pain and suffering? Those games against the ducks generally had a late start and work wasn’t as fun the next day…

        • CussingTortoise

          No you had a choice to watch the games and become emotionally attached to professional hockey players. That pain and suffering is part of being a fan. You know it and I know but we’ll all be back next year to have our hearts broken again. I’m assuming you were able to work though and continue earning an income though.

          Henderson never signed up to be cross checked by a professional athletes and never had the notion that it could happen.

  • Bilman

    As a Flames fan, I would like to see the Flames try and settle, settle soon and hopefully repair the relationship with the refs. Getting into a long, drawn out battle on this won’t help going into next season. That being said, I know that the outcome will set a precedence moving forward, and that the NHL, NHLPA and the ownership groups may be trying to influence the outcome.

    • class1div1

      The relationship with the ref’s should be no different with the Flames than the 29 other teams, regardless of this incident. If it was different than that would suggest that the officials were not now,in the past ,or in the future acting in a professional manner. Fans should never accept that.

  • Matty Franchise Jr

    What part will the NHLPA take in this? Do they represent Wideman or does he get his own legal counsel? Will this be used as a pawn in the suit with the league regarding concussions?

  • KenBone18

    I wouldn’t pay the ambulance chaser a dime. It should be a WCB claim for the NHL. How is Wideman responsible? How are the Flames responsible? It’s like a window washer getting wet and then suing the sky scraper.

    • 24% body fat

      you actually think WCB covers professional sports?

      Wideman did the cross check whether he was of sound mind or not. Civily he is responsible.

      The flames are partially responsible as his employer.

      By your suggestion you are saying that if someone is mentally ill (not in proper mind state), and on the street hits someone with a hockey stick than they are not responsible for hurting that person. Think harder.

    • 99CupsofCoffey

      KenBone: “How is Wideman responsible?” What? He cowardly cross-checked a referee from behind. A fricken REFEREE! I don’t recall them giving the Refs sticks to use during the games. WTH are you smoking? Doesn’t matter if he was woozy or not, doesn’t matter if the Ref missed a few calls. Wideman hit him with his stick for Christ’s sake.

    • Baalzamon

      This is Torts law, not criminal law. “Innocent until proven guilty” doesn’t apply. Wideman’s only defense is to claim contributory negligence (which will be difficult at best in this case) or reducing that preposterous $10,000,000 in “loss of income, loss of future income, loss of earning capacity and loss of opportunity” to something less outrageous.

  • beloch

    What’s especially damning for the NHL is that both Wideman and Henderson were left on the ice to finish the game, despite being concussed. Yes, that hit finished Henderson’s career, but the league still expected him to finish out the game! I wouldn’t be surprised if one or both of these guys wind up suing the league once they’re done with each other. This could go on for years.

  • madjam

    Flames should have settled out of court before it got to this stage . No way is Wideman going to weasel out of what he did to official , and he will be made to be the culprit in a court . Pay up and get rid of him (Wideman) and backlash of league and officials , before next season starts or even court proceedings .

  • Lucky 13

    If I run into another car while I’m driving, I’m responsible regardless. I could claim innocence, but I’m still responsible for my actions or in this respect.

    No Insurance Company is going to back me up, it was my fault therefore I pay via increased rates. That’s why we have insurance.

    Henderson doesn’t have insurance in the same sense, what do you expect him to do? Wait and hope that the NHL OA is going to renumerate him for lost wages?

    Flames and Wideman need to address for what it is… cash grab? Hardly, the man can’t work again in his chosen career.

    Pay Henderson and move on, this will get settled out of court.

  • Alberta Ice

    Should be a very good series with lots of drama. I’m for my Alberta teams over the California teams this year. This could easily be similar to the Capitals versus the Leafs games in the last round. Hold on to your seat belts.