LEGAL LIABILITY AND THE MARTIAL ARTIST

Editor's Note:  This article is intended to be an introduction to issues which should be considered in the responsible operation of a Martial Arts training program.  The author is not an attorney, and cautions that the concepts discussed herein are general guides only, and for specific answers to your questions, or for design of injury waivers and releases, you should consult the services of an attorney in your locale.

You've been struggling for several years, but at long last, thanks to considerable sacrifice, sweat and hard work, you're finally making a living doing what you love the most -- teaching martial arts. The day starts like any other -- the students line up, and class begins. After warmups, you elect to work with the advanced students. You take several advanced students to the far end of the floor, leaving the remainder under the charge of one of your brown belts. You instruct the brown belt to drill the beginners in basics. Everything runs smoothly, until a scream rips through the studio atmosphere. You look to your brown belt and find him kneeling beside one of your newest students. She is a model, in her 20's, and had joined the class "for the exercise." Sizing the situation as you hurry closer, you see that the right pant leg of her Gi is rolled up, exposing an already deformed and swelling right knee. An ambulance is summoned.

The brown belt explains later that he was drilling her in the front stance when he heard a "popping" sound and she fell. The following morning you visit her in the hospital and learn that she is scheduled for ligament surgery later in the day. She relates the brown belt was explaining the need for strong stances when he tested her right front stance by pushing against her thigh. The pushing motion caused her right knee to "come apart," and now she awaits surgery. She will be out of work for several months and is very concerned. Moreover, the surgery will leave visible scarring which will affect her career as a model. She is upset, says that you should leave and puts a business card into your hand. As you leave, you look at the card and see that she has retained an attorney.

All martial arts involve physical contact, and the reality for every instructor is not the concern of whether an injury will occur but when it will occur and how serious it will be. A responsible instructor will take every measure within his or her power to prevent injury to students; however, as is the case with virtually any physical activity, accidents will eventually happen, and injuries may result. Of course, we've all experienced our bruises, strains and sprains and have never even thought of making a legal issue of them. However, we can't expect every student walking onto the mat to have the same Spartan attitude. In the case of our injured model, there is ample reason for concern that her attorney will eventually present a sizable claim for medical bills, lost income and related damages.

Since teaching martial arts involves the potential for accidental injuries, it is essential the black belt instructor have at least a fundamental understanding of the basic elements creating liability to an injured third party (third party is a legal/insurance term used to identify the accident victim or injured person. When the injured person decides to make a claim against you, it is referred to as a third party claim. You are referred to as the first party.) Knowing what creates legal liability is the first step in avoiding those situations most likely to bring it about. Should an accidental injury occur in spite of your precautions, then knowing the elements of legal liability will help you to take appropriate action without unnecessary delay.
 

THE ELEMENTS OF LEGAL LIABILITY

The body of law as we know it is divided into numerous specialty fields. As martial artists, we find ourselves most influenced by Tort Law, Contract Law, Warranty Law, Statutory Law and Criminal Law. As professional instructors, we might find ourselves in positions of legal liability under any one or several of the above fields. Nevertheless, whatever fields of law are involved, an instructor's civil liability for damages or injury to a third party requires three elements (Click to see Figure I). First, there must be a legal duty owed by the instructor to the injured third party. This duty would arise from the Tort, Contract, Warranty, Statutory and/or Criminal Law which applies to the particular situation. The second element requires that there be a breach or violation of the duty owed. Finally, in all fields of law, legal liability would not arise until the final element occurred. There must be damages and/or injury sustained by the third party (as was noted earlier, third party is the legal terminology describing what we might informally refer to as the "victim" of an accidental injury.) Of course, it stands to reason that the breach or violation of the duty owed was the causative factor in the resulting injury or damages to the third party.

Perhaps an example would serve to demonstrate how these elements work together to bring about legal liability. Take the New Year's Eve drinker. He's tipped one too many but is confident he's able to drive. Leaving the club, he approaches a stop sign, drives through without stopping and broadsides a vehicle in cross traffic. The innocent driver is alone and is injured. Both cars are totalled.

One doesn't have to dig far to identify the duties owed. In this instance, our New Year's celebrant is in violation of Statutory Law and perhaps even Criminal Law for driving while intoxicated. Secondly, he has violated the statutes governing action at a stop sign. His failure to uphold his duties was the direct cause of an impact with an innocent party, resulting in injury and property damage. For all practical purposes, this man is responsible in law for the consequences of his actions. If he has insurance, the appropriate insurance representative will attempt to reach an eventual settlement with the injured party. If he does not have insurance, his personal assets may be at risk.

An interesting aside is the question, "How would the situation differ had there been no collision?". Remembering the three requisite elements for legal liability, had there been no collision, the third element would be missing, and there would be no legal liability for injury or damage. Nevertheless, our New Year's celebrant would still be in violation of Statutory and/or Criminal Law and, if discovered by the appropriate enforcement authorities, would have to face the prescribed consequences (fines, suspension of privileges and possibly even incarceration).

The case of our injured model is not nearly so easy to decipher. Assuming she has not signed an injury release when first enrolling, we will have to look to the actions of our instructor to determine whether he upheld his duty to provide instruction in a responsible or non-negligent fashion. One thing the court would consider is whether he was acting properly in putting the brown belt in charge of the beginners. Also, the jury would scrutinize the manner in which the injury occurred to arrive at some conclusion as to whether the brown belt was acting properly. The defense would look to other possible causes for the injury, perhaps even finding that the young lady had a longstanding history of problems in her right knee which would have necessitated surgery anyway.
 

MINIMIZING THE RISKS OF LEGAL LIABILITY

Undoubtedly, going through the ordeal of trial and the uncertainties involved would place a heavy financial and emotional burden upon any instructor. Ultimately, the only solution is to learn to recognize the risks and to take the appropriate safeguards in advance. The following suggestions should point you in the right direction:

1. Get liability insurance, especially if there is any question as to whether your students can execute a binding injury waiver.. Sure it's expensive, but once you're confronted with an injury situation, you'll probably agree it's a bargain when weighed against the consequences of not having it.

2. Develop a relationship with an attorney whose judgment you trust. Seek the attorney's advice whenever questions or problems arise.

3. Know your students. Require a medical screening by a physician as part of your admission requirements. Never push a student beyond his or her respective physical limitations.

4. Does your state recognize an injury waiver? If so, have one signed by every adult student when they begin training (Click to see Figure II, an example of a strongly worded waiver).  A minor cannot execute a binding injury waiver nor can a minor's parent or guardian sign a binding waiver on the child's behalf. Though it has no legal impact, many instructors elect to have parents and guardians sign such waivers anyway so that at the least an "informal" understanding is established that the instructor and his school will not be held to task for accidental injury to the child.

5. Instruct safely. You don't have to be a safety engineer to know what hurts people and how to avoid it. Instill safety consciousness in all members of the class. Be sure that your assistant instructors share your concern for the safety of every person on the premises (this includes guests and visitors). Unless you oppose it philosophically, use safety gear whenever conducting freesparring. No one should be permitted to freespar without mouth protection, shin guards and groin protection. Exclude target areas that are easily injured, such as the eyes, knees, spine, chest, etc. Impact should be controlled, especially to the head. Use mats for throws, sweeps and takedowns. Most importantly, don't force injured students to work out -- give them every chance to heal without complication. Develop learning alternatives that will allow them to continue progressing even while recovering from injury.

6. Maintain your equipment and premises in a safe state. Torn head gear, gloves and foot pads should be repaired or discarded. Weapons should be routinely inspected for safety. Pointed tips have been known to fly from spears, and blades have been seen snapping from inexpensive swords. Nunchaku will fly apart when the connecting cord or chain is defective. They might even decide to fly away on their own. Throwing weapons (knives, darts, etc.) should have their own special place and time in the studio.

The premises should be clean, well lit, comfortable and safe. Remember -- you're trying to get normal human beings to visit, develop a favorable impression and perhaps return as students. Having an obstacle course by the front door not only turns people off ... it can be hazardous. Always remember Murphy's law. If there's glass on the floor, someone will cut a foot. If there's a tear in the mat, someone will trip. If there's ice on the doorstep, someone will fall