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Legal Issues Concerning Martial Artist
The Best Defense? How About a Good LAWYER?
Sure, you can block, kick, and punch. But can you really defend yourself
- against a lawyer? By Stephen D. Menard, Esquire -
Originally published in the November 1996 issue of Inside Kung-Fu Magazine
Your newest student, Wanna Feit, has been taking lessons at your karate school for two months. She is progressing well, and you want her to start sparring. Because she is 5 foot 11, you pair her up with a green belt who is approximately her size. In the first 30 seconds of the round, the green belt hits Wanna in the jaw with a roundhouse kick. You stop the round and examine Wanna for injury. There is no blood, and Wanna says that she is not hurt. You continue with the class. Three weeks later, you get a letter from Wanna's lawyer demanding that you pay $7,500 for Wanna's necessary dental treatment, time lost from her employment, and pain and suffering or a lawsuit will be filed against you.
Taking Precautions
What do you do? What could you have done differently to avoid getting that letter?
Like it or not, we live in an extremely litigious society. No lawsuit appears to be too frivolous in a country where someone who spills hot coffee on her own lap can recover millions from the fast food restaurant which sold it to her on the grounds that she never expected it to be so hot.
It seems like no one wants to take responsibility for his own actions. The name of the game is blame: if I get hurt, no matter how, there must be someone I can sue to recover for my injury and pain.
There are probably fewer serious injuries in martial arts than there are in many other recreational activities, such as football, hockey, basketball and baseball. There is always the possibility of injury, however, and therefore an enormous potential exposure for liability on the part of the instructor and/or school.
Certainly one important step in protecting yourself and your school is to ensure that you have adequate liability insurance coverage. Check your policy to be sure you understand which activities are covered. Many insurance companies will not provide coverage for full-contact fighting, or will do so only at increased premium rates. Also, most insurance companies will not provide coverage for any sparring unless the participants are wearing the appropriate protective gear (i.e., headgear, gloves, footgear, mouthpiece, protective cup for men, and breast protector for women). Further, additional premiums are usually required for coverage during tournament participation.
Safety Guidelines
It is more important, however, to ensure that your school and its instructors follow appropriate safety guidelines to avoid claims from arising in the first place. Even if you have insurance which will pay for your lawyer and any settlement or judgement, claims still cost you money by increasing your insurance premiums. Moreover, the cost of lost business as a result of a damaged reputation can be incalculable.
Courts across the country have addressed claims brought by martial arts students against their instructors and schools for injuries sustained in class. While there are few such cases which have reached the appellate level and are reported in the various legal periodicals, for every such case reported there are probably 100 others which either settled or were concluded at the trial level without an appeal.
A New Jersey court set forth that state's rule for measuring a martial arts school's conduct in connection with sparring. In that case a student was injured when he was allowed to spar after only 20 hours of training. The court held that a karate instructor is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities. The court further held that either party may offer expert testimony to establish what the appropriate standard is under a particular set of circumstances. The student offered an expert who testified that most martial arts instructors would agree that 20 hours of instruction is insufficient to allow that student to spar.
Proper Conduct
It is important to note that under this case the standard applies if it can be shown that the martial arts community would accept it as appropriate, even if there are those who do not in practice follow that standard. There are always going to be persons in every profession who do not follow what the vast majority of practitioners recognize as proper conduct.
A New York court addressed the issue of whether a student should be barred from recovering for an injury received during sparring because he "assumed the risk", meaning that he undertook that activity with knowledge and appreciation of the possible consequences.
In that case a student was injured when he was allowed to spar during his eighth lesson. The court held that because karate is not as common as football or baseball, the dangers are not as apparent to the average person. Part of the appeal of karate stems from the fact that it consists of specialized training to enable the practitioner to punch or kick in an effective manner which is presumed not to be known to the average person. Therefore, the karate school must ensure that the student is appropriately trained in defensive and offensive techniques prior to sparring. The court that not only is sparring a dangerous activity, but it is more dangerous to spar with a relatively unskilled partner than with an experienced opponent.
Know Your Students
While this is counterintuitive to the average person, an experienced martial artist is well aware that discipline and self-control in sparring come only with experience.
A Florida court held that, to determine whether a karate student assumed the risk of sparring, a jury must determine whether (1) the student either actually/subjectively knew of the risk, or if not, whether that student, as a reasonable person, should have known of the risk of his activity, and (2) whether he voluntarily assumed the risk. In that case the student was sparring with another student at the defendant's home when he was injured by a takedown maneuver. The court held that the plaintiff was aware of and voluntarily assumed the risk of injury.
Because the plaintiff in that case sued only the student who injured him, the court did not address whether, under any circumstances, a karate instructor or school can be held liable for knowingly allowing, encouraging or condoning its students' participation in sparring outside supervised class.
Assumption of the risk applies to other injuries as well. In Ohio, a court held that a student who fell on a slippery floor while kicking a bag was aware of the risk, and was therefore barred from recovery.
The above caselaw demonstrates that a martial arts instructor or school may be liable under certain circumstances for injuries to a student sustained during class activities.
Some of the preventive measures which may help to avoid legal claims include:
- Always be sure that the student is ready to participate in the class activity. While this sounds simple, it often isn't. It takes an experienced instructor to know when a particular student is ready to punch a bag, break a board, or spar.
- Every class activity should be supervised by a qualified, experienced instructor. This includes teaching new material, refereeing sparring matches, and all other class activities. Assistant instructors may conduct certain class activities if an experienced instructor is also present. There is no substitute for the trained judgement of a full instructor.
- All instructors should be properly trained in the art of teaching, as well as skilled in martial arts techniques. A black belt does not automatically qualify a person to teach.
- The rules of each class activity should be fully explained to each student before he is allowed to participate. For instance, in sparring, the participants should be fully aware of the legal targets, the illegal targets, the rules for contact, and the required protective equipment. Rules should be strictly enforced, and students should be disciplined for violating the rules.
- Do not allow students to share sparring equipment. Each student should be required to own his own gear. This can become an issue particularly at tournaments, where it is becoming increasingly common for tournament officials to request that competitors share sparring gear. (This author is aware of one recent incident where a request was made at a tournament for someone to lend a competitor a mouthpiece during sparring competition. As anyone with basic medical training could tell you, there are numerous diseases which can be spread through the exchange of body fluids.)
- The discipline should match the offense. Serious offenses which could result in injury to the offender or to fellow students should be dealt with seriously. A mere "slap on the wrist" might inadvertently convey a message that you condone the activity.
- Students of similar physical size and ability should be put together during pair activities, such as sparring.
- Beginning students can be encouraged to practice on their own at home, but not to engage in group activities or pair practice without the instructor's supervision.
The information above is nothing more than basic, common-sense approaches
to ensuring the safety of your students while maximizing the effectiveness
of the workout. It is up to the individual, experienced instructor to determine
what other guidelines and procedures are appropriate for any particular
school and student.
In addition to securing appropriate insurance coverage and implementing safety rules and procedures, a martial arts school should have each student (or a parent or legal guardian of each minor student) read and sign a waiver and consent form. Do not settle for a pre-fabricated form from a book. Your waiver should be tailored to suit the particular practices of your school. It should appropriately advise each student of the nature and risks of studying the Martial Arts, and should be drafted to adequately protect your school and its instructors, assistant instructors and visiting instructors from legal liability. Your waiver form should be drafted (or at least reviewed) by an experienced attorney.
Following these guidelines does not guarantee that you and your school will never face a legal claim from an injured student. It should, however, help to minimize the probability of such a claim, and should help to protect you once a claim is brought.
Above all, use your common sense. While the law can be complex in many areas, lawyers tend to make things sound more complicated than they need to be. It should not be difficult for a skilled, experienced and disciplined instructor to run a safe and productive Martial Arts class.