A former NHL player who suffered brain injuries 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 December of 2006. He was knocked unconscious and was in a coma for 20 days.
Heard in B.C. Supreme Court, Burnett's lawsuit claimed the municipality didn't properly warn patrons that 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 over a nine-year period, police were called to the nowclosed 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 North Delta Inn complex, not specifically Cheers.
In a ruling released Wednesday, Justice Austin Cullen said he was unable to conclude 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.
Burnett settled a lawsuit against the nightclub out of court.
Although Delta came out on top in its lawsuit, it still faces more legal headaches in the case. The province filed legal action this year to recover Burnett's health care costs 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.