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 Post subject: Waivers again
PostPosted: Tue Mar 06, 2001 3:27 pm 
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Alan,

Could you give us your views about the real value of signed waivers by a student or parents before being allowed to join and train ?

We have looked into this over and over but it would be useful to have a Mass. attorney's opinion.

One of the biggest misunderstandings, I think, is that Dojo owners are under the impression that by a waiver they can contract away their common law liabilities.

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Van Canna


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 Post subject: Waivers again
PostPosted: Tue Mar 06, 2001 3:30 pm 
Also, what if you teach for free? What kinds of liabilities are there there also, Alan.

BTW, it was a pleasure to meet you at the Regional last Saturday.

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Allen Moulton from Uechi-ryu Etcetera


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 Post subject: Waivers again
PostPosted: Tue Mar 06, 2001 6:29 pm 
Thanks Van, that is a real concern.

George, mine's shakin' too. It's a-rockin' with the high school a-closed and teens with White Winter Blues.


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 Post subject: Waivers again
PostPosted: Wed Mar 07, 2001 5:38 am 
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Allen,

Alan K., I am sure will provide a solid response to your question.

One of the problems is that wether teaching for free or for money you are still subject to civil liabilities for negligent conduct.

The question will always be what duty did the teacher owe to the student under the circumstances of the injury and damages.

The other question is will your homeowner's coverage pick up defense and indemnity in a law suit against you, if an injury occurs, say in your basement as you teach a student.

An insurance company may smell a "business pursuit" regardless of what it will be told of the "arrangement" with the student.

The fact you have authored and sold books may also weigh against you as to a business intent.

Alan can really enlighten us on this subject fraught with real danger.




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Van Canna


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 Post subject: Waivers again
PostPosted: Wed Mar 07, 2001 5:41 am 
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Location: Mount Dora, Florida
FYI: Attorney Kunian does all his internet work at the office. As everyone has heard by now, New England is snow bound and many people have stayed home.

The wind is so bad, my house is shaking!

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GEM


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 Post subject: Waivers again
PostPosted: Wed Mar 07, 2001 8:41 pm 
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Location: Framingham, MA USA
Van and the group.

I have been snow bound and have arrived at the office and work bound.

In response to Van's original question as to the effect of signing a liability waiver, the general law in Massachusetts is that you can't contract away your tort liablity.

Most of you know what a tort is but the simple definitions is its a group of miscellaneous civil wrongs.

So if Sensei Jones or Sensei Smith have you sign a waiver of liability as to your entry into martial arts taught by them, their negligent conduct if any is owed in the circumstances, cannot be abrogated or abated, by the execution of a waiver, either in the contract or by separate document. Why? The short answer is that such conduct is against public policy.

I have not had time to do any research on specific examples, having been anxious to at least make this reply.

Van hints at their being a business purpose to the transaction which gives rise to the duty to protect or converseley not to be negligent in your operations.

He also alludes to it being easy to attribute a business purpose thereby conferring the duty.

He is right on both counts.

A Blatant example might be Sensei X allowing children to spar in three different rings, with only one person supervising and that person not checking at least the minimum protective gear such as groin cups for boys and chest protectors for girls.

The scenario can go on and on, but the bottom line is that you can't contract away your liability and negligent conduct can be attributed even for minor lapses in supervision. In this educated group of MA's, you all know a plethora of situations in which an MA in teaching or supervisory capacity can be liable.

GEM constantly elaborates on this in his teaching and appearances.

There could be examples of where tournament fighters of high skill assume more risk, and the duty of the promoter might be not as liable as a MA instructor in his dojo in conducting classes.

Alan K


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 Post subject: Waivers again
PostPosted: Thu Mar 08, 2001 10:29 am 
I'd like to rephrase my original question and give a specific example:

On the contract the candidate signs before he becomes your student, there is a paragraph that explicitly states that he must be in good health and has had a recent physical.

He has stomach pains after a class, goes to thedoctor and blames either or both the dojo and the instructor. Is the dojo or instructor liable for paying his physician and/or emergency room bills?

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Allen Moulton from Uechi-ryu Etcetera


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 Post subject: Waivers again
PostPosted: Thu Mar 08, 2001 3:05 pm 
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Location: Framingham, MA USA
To Allen M

It was indeed nice to meet you at the Saturday conclave.

The student, who I will assume was an adult,
makes a statement about his physical condition in one section of the contract with the MA sensei.

I will assume again that he does not reveal any significant health problems.

You state that the student became ill after the workout and inquire whether the Dojo (MA or organization) is responsible for medical bills or expenses.

We know that Dojo cannot contract away its tort liability.

The next question is one of cause and effect.

What caused the condition of the student to become ill.

If it was something like hard Sanchin testing to the stomach of a new student which caused the problem (using this as an example with which you can readily identify)
The it would be obvious that the Dojo would be liable, wether or not the student failed to reveal a physical condition.

If on the otherhand the student had a condition of stomach ulcers, high blood pressure and atrial fribalation, and was ill after a long tedious drill, and had failed to reveal any of these conditions where asked in the contract, or pre-contract screening form, then according to the degree, this student might be guilty of contributory negligence.

Explicit facts as found by the trier of facts make the difference in these matters and can sometimes be quite subtle.

Now in this sphere we have entered the world of what conduct represents negligence in a specific set of circumstances; and what is the duty of the MA/Dojo, to protect and conversely to refrain from.

In summary after the public policy doctrine of no contracting away tort liability, we come to the need to consider the facts in each and every case to:

A. Determine if there is negligent conduct.
B. Is the responsibility owed diminished in any numerical degree by the contributory negligence of the (in your case) student.

And at arriving at A. above, the duty to protect or refrain of the MA/Dojo.

Alan K


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 Post subject: Waivers again
PostPosted: Thu Mar 08, 2001 3:21 pm 
Thank you Alan.


Whew! I have to make sure I know the difference between what is negligence and what is not, and I don't want teaching in small groups the way I do to be like walking on a bed of broken glass.

The problem I mentioned was something that brought into the dojo.



[This message has been edited by Allen M. (edited March 08, 2001).]


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 Post subject: Waivers again
PostPosted: Fri Mar 09, 2001 12:46 am 
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Location: Richmond, VA
Hi all. I have talked about this before but my carrier is AMICA of Rhode Island. When I first inquired about my Excess Liability Insurance covering me in the event of a martial arts mishap the first reaction was 'we will be cancelling your policy'.

I took them to task and they checked their database and found they had never had a martial arts related claim. With millions of policy holders they rightfully assumed that there must statistically be quite a few who are involved in MA. Once they assessed the risk, so far non existent, they backed off. However, I am an amateur instructor (no regular fees) and must have a day job or they will cancel my policy. And yes, I have their response in writing.

Markel of Richmond sells specialty insurance for roughly $500 for $500,000 in coverage. Should I ever spend more time teaching I would purchase this protection.

I do have a waiver that must be signed. It is to document the understanding of risk if nothing else and could help me should a problem arise. Bill G. and I currently have 25 or so students and so far all injuries have been minor or repairable with no one ever looking for remuneration.

Rich


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 Post subject: Waivers again
PostPosted: Fri Mar 09, 2001 3:56 pm 
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Location: Framingham, MA USA
Rich Castanet:

Professional, full time, part time or any degree of running a Dojo, Dojang, kwoon or whatever does result in exposure to tort liability, and I am pleased that you have an insurance policy.

You made the following statement:
However, I am an amateur instructor (no regular fees) and must have a day job or they will cancel my policy. And yes, I have their response in writing

If I understand this correctly, they require you to have a day job so their risk may be assessed on the basis of limited exposure resulting from your having less students.

In determining whether in a given set of facts that the MA is or is not liable for negligence and in what percentage, the waiver can be useful in determing if there was a voluntary assumption of risk.

Although in Massachusetts the waiver is void as such, might not the response of the student, coupled with the questions generally asked in either applications of written inquiries given by the MA to the prospective student be useful.

On the otherhand insurance companies are multi-state generally and it is in their SOP to get this form signed.

Pre application forms ( interviews ) can be useful in determining the health, sophistication and background of the student.

When my office was in Natick a few years ago I worked out in a Kenpo dojo next door to my office for over three years. It was part of a small chain.

I can tell you that the MA sensei were made very aware of the dictates of the insurance companies and possible acts which could constitute negliegence.

The loss of such insurance or the implementation of high surcharge fees can be a lethal blow.

I think, that in the long run, it was benficial to students in that mats, safety floors and equipment coupled with no sparring without full gear.

However it diluted the training that one gets from sparring with minimum gear (say gloves and foot pads only)without the blind side effect of full head gear (except for HighGear).

It was also my understanding that claims were few in comparison with the amount of students taught, but if anyone can tell you more about this on a practical basis, it would be GEM, sensei.

Alan K


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 Post subject: Waivers again
PostPosted: Fri Mar 09, 2001 6:05 pm 
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Location: Weymouth, MA US of A
I as wondering if some of the full-time instructors could talk about what insurance coverage they have, and what kind of waivers they use?

Gene


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 Post subject: Waivers again
PostPosted: Sat Mar 10, 2001 5:36 am 
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A home owner's liability policy or umbrella coverage would deny defense and indemnity on the strength of the business pursuit exclusion. So if the teacher's activities [ when the injury occurred] are deemed to fit the definition of a business pursuit, coverage would not apply.

The alternative is a commercial liability policy, even so, you must make sure to follow the restrictions, such as no sparring without approved safety equipment, or coverage would be denied on the basis of contract [ policy] violations.

Also, no insurance policy will cover you in cases of alleged molestation or sexual harassement in the dojo, or for any injuries or emotional distress, caused intentionally as opposed to negligently.
------------------
Van Canna



[This message has been edited by Van Canna (edited March 10, 2001).]


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