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PostPosted: Wed Mar 06, 2002 1:13 am 
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Rockland man files suit against karate instructor


Bangor Daily News (Bangor, Maine)

February 6, 2002 Wednesday, THIRD EDITION

BYLINE: LEANNE M. ROBICHEAU, OF THE NEWS STAFF

DATELINE: ROCKLAND

A local man is suing a Rockland karate instructor for allegedly fracturing his cheekbone during a sparring session at a martial arts class.

Eric Allyn of Rockland filed a lawsuit Friday in Knox County Superior Court claiming that his karate instructor, William Whitmire of Camden, intentionally hit him in the face with his fist, fracturing his left orbital bone. The incident occurred May 17 during a class at Kaibutsu-Kan Karate-Do in Rockland, according to the court document.

The complaint, which seeks an unspecified amount of damages, lists five claims: assault, battery, intentional infliction of emotional distress, negligence and punitive damages.

In the suit, Allyn claims that he has incurred medical expenses in excess of $11,000 as a result of the assault.

Allyn is represented by Auburn attorney William Maselli, who could not be reached Tuesday for comment.

Contacted Tuesday, Whitmire indicated that the plaintiff's claim was false.

"It's a smear campaign of some sort," Whitmire said, noting that in his 16 years of business in the martial arts, he has never had any problem like this.

"We have a wonderful reputation," he said.

The instructor said that 30 people have graduated from his course with black belt certification. There are 60 youngsters in the program, he said.


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PostPosted: Wed Mar 06, 2002 4:43 am 
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To anyone's knowledge, has a MA instructor been held liable, either civilly or criminally, for injuries to his/her students?

I'd be interested in seeing how this case ends up.

"The instructor said that 30 people have graduated from his course with black belt certification".

GRADUATED from his course. Hmmm.....


Gene


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PostPosted: Wed Mar 06, 2002 1:35 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Gene DeMambro:
To anyone's knowledge, has a MA instructor been held liable, either civilly or criminally, for injuries to his/her students?
Gene
<HR></BLOCKQUOTE>

Yes.

Wells v. Colorado College, 478 F.2d 158 (10th Cir. 1973)

"In {this case a} judo instructor was accused of negligence. In response to a number of campus assaults, Colorado College arranged to offer its students a self-defense class, and hired two judo instructors from the Colorado Springs Police Department to conduct the class.

"Coed Cheryl Wells was paired with a partner who was unable to throw her in a hip throw. One of the police instructors, to demonstrate the throw, tossed Ms. Wells on her back. Instead of hitting the mat, however, she hit the floor. The mats had separated and she landed partly between them. Due to her injuries, Ms. Well underwent surgery and missed one year of college. She received a $150,000 verdict against the college, and the United States Tenth Circuit Court of Appeals upheld the substantial verdict.

"On appeal, the college contended that it was reversible error" -An error of such magnitude that the court must reverse the verdict. student - " for the trial court to fail to instruct on 'assumption of risk.' The Tenth Circuit held:

"'This is not a case involving participation in a sport which activity is commonly associated with the assumption of risk doctrine. Rather, the plaintiff'" - Ms. Wells. student -"' was participating in a scheduled class and was doing it for a very practical reason. But even if we were to consider it as a sport, the evidence presented would still be deficient to support assumption of risk becasue it is not shown that the plaintiff anticipated an extraordinary hazard such as to which she was subjected, She had a right to expect that she would be thrown on the mat and not on the hardwood floor.'"

Source: Brown, C., The Law And Martial Arts,, Ohara Publications, Inc., 1998, sc, pp. 177-178.

I did about one third of the research for this book. I do not agree with all of Carl's assertions and conclusions, but it's a good place to start research. One case leads to another, and another, and....

student


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PostPosted: Wed Mar 06, 2002 2:17 pm 
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The type of case that GEM, sensei reports is based upon purposeful tortious conduct togther with consequential physical and emotional damages.

Voluntary assumption of risk would of course, be no defense if the facts in any one of the torts could be proved.

I think that the plaintiff in the Maine case has a difficult burden of proof to maintain a case of this nature against an credible sensei. However, if the facts prove even unpurposeful negligence, the assumption of risk defense could be asserted if the facts develop in that direction.

Good post and research Student; I will make note of that book.

I think Gene is right on his "hmmm" questioning what the sensei will face on examination in court on his credentials.

Many cases of this type are settled by insurance companies and we do not see many reported.

When you consider the amount of MA students out there, the amount of litigation is small compared to sports or other disciplines requiring physical contact of some type.

The case that Student reports could be one of those that might go the other way if retried in another court; however we do not have all the facts in cases reported in outline or review form.

I would like to see the outcome of this Maine case.

Alan K


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PostPosted: Wed Mar 06, 2002 4:01 pm 
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Forgive the digression, but I want to make a point that sometimes is misunderstood by laymen.

Not all cases that are tried are reported. When a lawyer of judge cites case law, he/she is citing a case that has been appealed to a higer court - maybe appealed more than once, to the highest court of the jurisdiction.

Most cases are not tried; they are settled by agreement. Most tried cases are not appealed. Most appealed cases are not overturned. Many appealed cases are not even reported (the decision to rep[ort or not is solely that of the appellate courts; if I had my 'druthers' everything would be reported. But I don't.)

Judges and lawyers should be guided by these applellate decisions, case law, as to what the statues, ordinances, etc. really mean. But looking at case law alone is a skewed view, as is relying on a 'common-sense' interpretation of the statutes.
Image

In other words: we're professionals; don't try this at home.
Image

student


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PostPosted: Wed Mar 06, 2002 7:04 pm 
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Good point, Student

I think I take it for granted that everyone is aware of the steps taken when a case is filed in the first instance, and to trial, and the appelate process.

I know I have explained in many of my posts that I prefer to report on cases in this forum which have been reported by the state or federal appellate divisions for the reasons you state. In some cases, when I can I do read the case to discern more factual matters than disclosed on appeal.

In my posting on the questions eminating from libel and slander cases posed by Van Canna and GEM sensei, I went to the text book type to explain and expound on the various types of defamation that exist without even citing the case law. It is complex for a lawyer and a nightmare for lay-persons.

Your comments are welcome. Jump in any time.

Alan K


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PostPosted: Wed Mar 06, 2002 7:23 pm 
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To you teachers out there,

As a practical matter, a well drafted release signed by adult students can go a long way toward nipping litigation in the bud. A parent can sign a release on behalf of a minor, but I wouldn't feel as confident relying on one in an instance of injury to a minor.

An ounce of prevention . . .

Sincerely,
Norm Abrahamson


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PostPosted: Thu Mar 07, 2002 3:22 am 
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Would such a release say "...the teacher(s) during any particular workout or class may strike or hit you so hard as to cause injury. You voluntarily assume any and all risk from such activity..."

Would even the best drafted release shield a teacher from liability if he hits a student with such force or at such a target area (testicles, eyeballs) to cause an injury?

Would such a release shield a teacher from liability if students get injured during an activity that they are not qualified or trained for (fast speed sparring, "realism" drills performed at full speed or full power or an obviously mismathced sparring match between a senior student and newer student)?

Like Ms. Wells in the judo case, do students have a right to expect that Sensei and fellow students will not hit them with such force or veracity to cause injury? Stubbed toes, jammed fingers and sore muscles notwithstanding, but are we as teachers liable everytime we do a drill and someone ends up with a bloody lip, or cracked tooth?

What does the Wells case ultimately say about the state of repair of our dojos? Do students anticipate an extraordinary hazard such as to which they are subjected when nailheads stick up from hardwood floors, implailing heels and arches when landing on a Seisan jump? Does the student assume risk when (s)he moves full speed in sparring, catches a big toe on a break in the mats on the floor, falls and twists an ankle or breaks a wrist when falling?

A few more notes on the Wells case:


"...This is not a case involving participation in a sport which activity is commonly associated with the assumption of risk doctrine. Rather, the plaintiff was participating in a scheduled class and was doing it for a very practical reason..."

So the court recognizes the difference between sport MA and self-defense MA.

"...deficient to support assumption of risk becasue it is not shown that the plaintiff anticipated an extraordinary hazard such as to which she was subjected..."

In order to have an assumption of risk, one must anticipate the extraordinary hazard. Yes?

If the hazard is extraordinary, how do we find out about it to anticipate it?

Sorry so long winded

Gene


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PostPosted: Thu Mar 07, 2002 12:03 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Norm Abrahamson:
To you teachers out there,

As a practical matter, a well drafted release signed by adult students can go a long way toward nipping litigation in the bud.
<HR></BLOCKQUOTE>

Norm is right.

Gene is right.

How the hell can they both be right? Image

Gene is right in that even the most well written waiver will not cover all situations, will certainly not cover any malicious or intentional behavior on the part of the teacher, and may have very limited use in protecting you in court.

But Norm is right because many people are daunted from pursing litigation just because of the waiver.

Bottom line: craft the best waiver possible, but do not depend upon it to forestall all problems.

student


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PostPosted: Thu Mar 07, 2002 1:54 pm 
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Good point Norm:

I think that its best use is probably to disuade the filing of a complaint.

Of course it would negate the theory that there was no voluntary assumption of risk.

At least in Massachusetts we have the theory that you cannot contract away your tort liability.

I can remember discussing this (the release) with GEM, sensei years ago, and at least at one point in time, students signed a waiver in most Mattson Acadamy.

IMHO, I think that it would be wise to have a liability insurance policy. The companies no longer take MA as an archane science and in fact sort of police their insured's by requiring such things as first aid kits in dojo, use of safety equipment, and the proper condition of equpment, floors, mats, etc.

I remember a few years ago, at Summer camp in Cape Cod, there was a seminar on insurance, and one of the speakers was a New Hampshire attorney who was a Kung Fu Sifu.

We have discussed the general concept of dojo owner liability in these posts and in other forums, and it continues to be an economic problem for those having small classes and who teach not for the financial reward, and for the MA community in general.

Thanks for the posts guys.

Alan K


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PostPosted: Thu Mar 07, 2002 3:46 pm 
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Thank you, gentelmen, for your answers.

My questions were only meant to be half-rhetorical. Sometimes the teacher who "doesn't teach to make money" uses that as an excuse, either wittingly or unwittingly, to neglect some things (s)he ought not neglect, like proper repair of dojo and equipment. And then there is a whole issue of (im)proper training.

Would a post by one of you attorneys on the Assumption of Risk Doctrine be appropriate? I think it would answer many questions regarding liability.

So, in real day-to-day practices, what can I do as a teacher to make sure I am "risk-managed" appropriately?

Another question that just came to me:

As an iinstructor at my teacher's dojo, what kinds of protections do I have under his insurance policy?

Since I am also an instructor, do I also have different expectations of the extraordinary hazards with MA practice, by virtue I (supposedly) know more about the MA than less advanced students? Do I, therefore, assume a higher degree of risk?

Gene


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PostPosted: Thu Mar 07, 2002 9:03 pm 
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Dear Alan,

A waiver of the right to sue for negligence, even before it occurs, is valid in Massachusetts. The Massachusetts Appeals Court, in Vallone v. Donna, stated, “As a general proposition, releases of liability for ordinary negligence are valid." Gonsalves v. Commonwealth, 27 Mass.App.Ct. 606, 608 & n. 2, 541 N.E.2d 366 (1989). See Cormier v. Central Mass. Chapter of the Natl. Safety Council, 416 Mass. 286, 288, 620 N.E.2d 784 (1993). However, a release may not shield a defendant from responsibility for violation of a statutory duty. Henry v. Mansfield Beauty Academy, Inc., 353 Mass. 507, 511, 233 N.E.2d 22 (1968). Gonsalves v. Commonwealth, supra at 609 n. 2, 541 N.E.2d 366.

The courts have upheld waivers signed prior to any incident in a variety of situations. In Vallone v. Donna, the Appeals Court held that a waiver of negligence against a skating rink and its employees was valid as to an injury sustained by a skater due to a negligently maintained ice surface. In Cormier v. Central Mass. Chapter of National Safety Council, 620 NE2d 784 (1993), the appeals court upheld a waiver in favor of a company that taught motor cycle safety in a suit by a student who claimed she was injured due to the negligence of the school. In that case, (as with dojos), the student was informed that if she did not sign the waiver, she could not take the course.

It is important to note that lower trial courts generally follow this rule and grant summary judgment (a win without the need for trial) to business owners. The District Court granted summary judgment to a hockey league against a player who alleged he was injured due to the negligence of the league. Hunter v. Skate III, 199 Mass. App. Div. 274. A stable owner was granted summary judgment against a rider who alleged injury due to the negligence of the stable. Powers v. Mukpo, Sept. 1999, Judge Botsford.

As of yet, I have not found any cases dealing with a waiver signed in favor of a dojo. However, a dojo should not be treated any differently from the other businesses mentioned.

Hope this helps somebody out.

Sincerely,

Norm Abrahamson


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PostPosted: Thu Mar 07, 2002 9:05 pm 
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Gene,

If you want to know if you are covered by the dojo owner's policy, ask to see the policy. Most do cover "agents and employees" of the business, so I would suspect that if the dojo is insured, you are covered. As you know, my interest is similar to yours.

Norm


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PostPosted: Fri Mar 08, 2002 12:41 am 
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“'As a general proposition, releases of liability for ordinary negligence are valid.'"

"However, a release may not shield a defendant from responsibility for violation of a statutory duty."

What are some things that may occur that are the result of "ordinary negligence"? Sprained ankles? Jammed fingers? Chipped teeth?

What goes above "ordinary negligence" that would not be covered under the waiver? Sensei driling student full force, breaking orbital bones? Do students have a right NOT to have their orbital bones broke?

As I mentioned in another post, what "statutory duty" do teachers owe their students? Is there any statutory language that covers MA teachers in this regard? What about the civil and criminal statutes against battery and assault?

"the student was informed that if she did not sign the waiver, she could not take the course."

Choices are:

(1) Not sign the waiver, and not be admitted into the MA school. Too bad, 'cause my money's green like everyone elses.

(2) Sign the waiver, and its open season. Nailheads sticking out of the hardwood floor? Covered by the waiver. Get drilled by senior students or sensei during sparring and get injured? Covered by the waiver. Sensei forcing you to drill sokusen kicks into the hard concrete walls for "conditioning", causing permanent disfigurement? Covered by the waiver. Get beat severely and injured in Sanchin focus test, where you stand motionless and defenseless while Sensei gets his rocks off while hitting and hitting you so you learn "focus"? Covered by the waiver.

Where does the waiver stop and the "statutory duty" protections start?

I do not ask rhetorically, the above. I am seriously and legitimately interested in learned opinions.

Gene


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PostPosted: Fri Mar 08, 2002 1:08 am 
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Gene,
The degree of negligence is not necessarily measured by the degree of damage or injury suffered by the "victim." A sensei can do something grossly negligent and cause very little damage. For instance, work on disarming techniques with a loaded gun. The gun can go off and the bullet may only scratch or entirely miss a student. The school is still liable for the damage because the action was grossly negligent.

Ordinary negligence could include striking a student too hard in a sparring match where everybody is wearing good safety equipment. The student could fall down and break his neck causing paraplegia. Where the negligence is not "gross" the student may not recover for his injury. This assumes proper signed releases.

I am not aware of any special statutory duty owed by marial arts teachers to students with one exception. That is the dute under chapter 51A to report instances of suspected child abuse. As a teacher, a martial arts instructor could be a mandated reporter. I'm not aware of any caselaw on point. (Then again, I haven't looked.)

Sincerely,
Norm Abrahamson


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