A former NHL player who was left brain injured in an assault at a notorious North Delta nightclub lost his lawsuit against the Corporation of Delta and its police department.
Garrett Burnett, a former enforcer with the Anaheim Mighty Ducks, was struck in the head with a bar stool at Cheers nightclub during a fight in Dec. 2006. He was knocked unconscious and was in a coma for 20 days.
Burnett's lawsuit heard in B.C. Supreme Court claimed the municipality didn't properly warn patrons that the Cheers was dangerous.
His lawsuit claimed police "failed to properly identify Cheers as a nuisance to the public, a trap for the unwary and to take pre-emptive steps to abate the danger it represented to potential patrons."
Evidence presented at the trial showed that over a nine-year period, police were called to the club at the North Delta Inn more than 2,400 times. The lawsuit also claimed that over-serving of alcohol was the most likely cause of the altercation.
Lawyers for Delta and the police department argued there was no proof that Burnett's injuries could have been prevented.
Police chief Jim Cessford said the number of calls seemed high, but it involved the whole of the North Delta Inn complex, not specifically Cheers.
In a ruling released Wednesday, Justice Austin Cullen said he was unable to conclude that the plaintiff met the burden of establishing liability against the defendants.
"It is objectively improbable that the plaintiff would have encountered a warning had one been issued, in respect of the Cheers pub, given his lack of connection to Delta and unfamiliarity with the Delta Defendants' website or any local news sources. Equally, it is objectively improbable that he would have heeded any such warning had he encountered it, given the evidence of his attendance at other bars or nightclubs with similar environments to Cheers, and his consumption of drugs that would tend to affect his judgment," Cullen said.
Although Delta came out on top in the lawsuit, the municipality still faces more legal headaches in the case.
The province this year filed legal action to recover the health care costs of Burnett, under the Healthcare Cost Recovery Act.
The act, which went into effect two years ago, allows the Ministry of Health to recover health care costs paid by government related to a beneficiary's injury that was caused by the wrongful act of a third party.
In its lawsuit, the government is claiming that a Delta police exhibit, a surveillance video and hard drive, was lost or destroyed after it was seized from the scene.
The government's lawsuit also claims Delta, its employees and its police failed to control the frequent violence at the nightclub.
This September at the Union of B.C. Municipalities convention, other municipalities endorsed Delta's motion calling on the provincial government to drop all claims against cities under the act. The application of the legislation to local governments "merely transfers money from one government pocket to another," said Mayor Lois Jackson.
After the government's lawsuit was launched against Delta, police chief Jim Cessford took the unprecedented step of speaking publicly about the allegations, saying he took exception "that an absolute untruth is left in the public domain bringing into question the integrity of the Delta police as an organization."
