Remember the "good 'ol days"?

[Gene DeMambro]

If there are damages as a result of a breech of duty, then there is a cause of action (in general). So, if I'm shot during loaded-gun disarms, then I have a cause of action, regardless of waiver or not. This is b/c of the "gross negligence" on the part of teacher. If the bullet misses, there still is a duty (not to bring a loaded gun into calss) and a breech of duty (bringing a loaded gun into class), but no damages ('cause no one got shot), therefore no cause of action. But, a lot of REALLY bad judgement...

Right?

If I hit a student too hard in sparring, or toss them hard in judo class, do I at least owe them a duty to at least teach them how to fall correctly? Do I owe them a duty to not knock them down harder than they know how to properly fall against?

Since we haven't established any statutory duty that goes beyond what is covered in a waiver; then it's still: sign a waiver and it's open season.

Gene



[This message has been edited by Gene DeMambro (edited March 08, 2002).]

[Van Canna]

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>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 (1968). Gonsalves v. Commonwealth, supra at 609 n.2.

In this case, the plaintiff argues that the release does not bar his action because the defendants had a statutory duty under the State Building Code (code) to maintain the ice skating rink in a safe condition, 780 Code Mass. Regs. § 104.1 (1990), and the release is void as against public policy.<HR></BLOCKQUOTE>

Under G. L. c. 143, § 3A, the State Building Code is applicable and enforceable in every municipality in Massachusetts. Under its provisions, an "owner" shall be responsible for maintaining all "buildings" and "structures" in a "safe and sanitary condition." 780 Code Mass. Regs. §§ 104.1 & 104.2 (1990).

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote

An owner is defined as "[e]very person(4) who alone or jointly or severally with others (a) has legal title to any building or structure; or (b) has care, charge, or control of any building or structure in any capacity including but not limited to agent . . . of the estate of the holder of legal title . . . ." 780 Code Mass. Regs. § 201.0 (1990).

Does this mean that GEM sensei fits the definition of “owner” when in control of the Hut on Saturday mornings for 90 minutes?
And he would be liable for a nail sticking into someone’s foot or for any other unsafe condition of the building leading to injury or death of a student?

Gross negligence

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote

Any action or an omission in reckless disregard of the consequences to the safety of another. Sometimes referred to as "very great negligence" and it is more then just neglect of ordinary care towards others or just inadvertence. Also known as the Latin term culpa lata.

The risk I see is that , given perceptions of the inherent dangers of karate training and the negative thoughts of violence associated with it in the minds of lay jurors, Would our peers lean more to a generous interpretation of the term “gross negligence”__

Think of all the activities Gene has mentioned. How would a jury perceive them in the light of “safety to another” ?

A good trial lawyer would create much havoc with “hired guns” selling a standard of care by karate instructors.



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Van Canna

[Alan K]

Thank you, Norm

I should have stated "gross negligence" instead of tort liability.

Your post was excellent; If only I could get you to contribute regularly in this forum.

Gene and Van, thanks for your contributions.

The liability of MA's and is not only a timely subject which should be addressed in this forum.

This could become the next project in this forum, and we will see how it develops.

Once I complete the Defamation posting, we can tackle this.

Norm has made a good start and he and any other member are welcome to begin.

Cordially,

Alan K

[Norm Abrahamson]

Dear Van Sensei,

The court in the skating case interpreted the building code and safety regs. to be primarily concerned with ensuring that there are safe ways in and out of the building,and that fire codes are complied with. The injury suffered by the Plaintiff, falling on a soft spot in the ice, was not the type of harm the building codes were intended to prevent, and so the Plaintiff could not recover.

I don't know the building codes well enough to comment on whether a raised nail head or other minor imperfection would run afoul of the code. However, a building owner is not an insurer of safety for anybody who enters or uses a facility.

As to using the Hut for 90 minutes, GEM is more analagous to a user. He is relying on the landlord to provide a safe, adequate space.

Sincerely,
Norm Abrahamson

[gmattson]

Al Kunian has helped guide me in making certain tough decisions involving liability over the years.

Back in the early days, karate had an image of being something only crazy people studied. Al mentioned that this image made it difficult to recruit new students, but would probably help me in any liability lawsuit. Essentially, the judge would say, "what do you expect, studying something as dangerous as Karate?"

Today, the image of karate has changed a great deal, mostly because the average dojo is filled with preteen kids rather than adults. In the 60s, I would have been probably called as an expert witness in a karate related negligence lawsuit. Today, your local TKD teacher would be called.

In other words, the standards for negligence has changed a great deal, even though the average Uechi dojo is being run pretty much the same way as it was during the 60s.

Think about the general type of sparring we did and continue to do in the Uechi dojo. . . few teachers require the wearing of TKD approved sparring equipment. . . and injuries do happen. Should one of your students sue, and his/her lawyer brought in an "expert" witness, do you think that "expert" would consider the way you conduct classes as dangerous and negligent? Do you think any waiver the student or parent signs relieve you of teaching in an unsafe manner?

Today, the "realist" schools of self-defense enjoy the same reputation that karate did 40 years ago. Students (and therefore judges) believes what they are doing is dangerous and therefore chances of the teacher being sued are less. However, I bet there is "experts" who will be able to define the levels of training and the type of danger students might expect to experience while training in these new-age realistic methods.

Although few actual cases of karate related lawsuits are publicized, I know for a fact that many are being settled out of court. WHY? Because the insurance companies and defendant's lawyers know they don't stand a chance in court!

Those of us who are trying to run our dojo and conduct tournament and camps in a safer manner than we did in the 60s, continually receive criticizm for not adhering to "traditional" values by those who fondly remember the "good ol' days" when we could (and did) get away with just about anything.

I'm pleased to see these discussions taking place and hopefully being read by teachers who continue to instruct in a manner that will most probably be deemed a negligent manner by a court and/or jury.

And I believe your insurance company would quickly abandon you, once it was determined you were neglegent and/or failed to abide by the fine print in their contract. (use of approved protective equipment during "all" sparring and activity involving contact!)

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GEM

[Van Canna]

Thank you Norm,Al, for your time and contributions.

As GEM sensei points out, we are on the right track in discussing these potential exposures looming over our heads.

One thing to keep in mind, of course, is that theories of liabilities, summary judgement findings notwithstanding,litigation will be brought to force a defendant into some sort of "nuisance" settlement for fear of incurring defense costs which in many cases, exceed the value of the claim.

This is the reason why I have settled 99% of all litigated claims I ever handled in my office.

Many questionable liability claims are settled under the advice of corporate counsel for insurance companies for fear of creating a legal precedent if an adverse finding should come down.



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Van Canna

[Gene DeMambro]

One of the executives for the risk management company who takes care of the malpracative issues at work, at a talk I attended once, said that they fight every malpractice case that is filed against a client, except when there were obvious issues of negligence. In that case, they move to settle.

Van Sensei: Of the cases you elected to go to court over, did you think they were slam dunks, and you could win easily?

Early on in my career, I was advised by peers NOT to carry liability insurance. The theory was that if I didn't have any money or insurance, I wouldn't be sued. That mentality quickly changed, and I pay $111/year for $4 million in malpractice coverage, and I sleep very well at night.

"Many questionable liability claims are settled under the advice of corporate counsel for insurance companies for fear of creating a legal precedent if an adverse finding should come down."

This is true of many avenues. One landmark case involving pharmacists was decided at the Mass. Appeals Court level in favor of a patient who was harmed by pharmacist malpractice. The insurance company and the pharmacy chain felt they could win at the SJC level, but there was that doubt that they could lose even bigger at the high court, so they settled.

Settling cases when there is a questionable suit may be good for the plaintiffs, the insurance companies and the defendant; but it leaves lay people twisting in the breeze, because there is no clear precedent we can turn to in order to find definitive answers.

Gene




[This message has been edited by Gene DeMambro (edited March 08, 2002).]

[Alan K]

I had forgotten the image of karateka in the eyes of the courts and a good deal of the public, 30 + years ago until reminded by GEM sensei, in his latest post. They did think we were quite insane until there was a proliferation of dojo sparked by action movies out of Hong Kong, and particularly Bruce Lee. Their were also the fears generated by attacks on women and muggings that were legion in the early 1970's.

Now it is accepted in today's American culture to the same degree as that s hockey or soccer is for our children. I have a seven year old grandson who began karate classes when he was four, and now most of my daughter's neighbors have children taking karate lessons.

The image has improved from crazy to excentric, IMHO.

However to a court of law, I wonder how the big bad sensei is considered as opposed to the poor helpless student, by fact finders.

I wrote a reply to Gene DeMabro's post in this forum on "Duty", before I had read the last post here, but would not change it, but do appreciate the struggles we had in those days with liability versus effective karate.
The beat goes on.

Alan K

[Alan K]

I had forgotten the image of karateka in the eyes of the courts and a good deal of the public, 30 + years ago until reminded by GEM sensei, in his latest post. They did think we were quite insane until there was a proliferation of dojo sparked by action movies out of Hong Kong, and particularly Bruce Lee. Their were also the fears generated by attacks on women and muggings that were legion in the early 1970's.

Now it is accepted in today's American culture to the same degree as that s hockey or soccer is for our children. I have a seven year old grandson who began karate classes when he was four, and now most of my daughter's neighbors have children taking karate lessons.

The image has improved from crazy to excentric, IMHO.

However to a court of law, I wonder how the big bad sensei is considered as opposed to the poor helpless student, by fact finders.

I wrote a reply to Gene DeMabro's post in this forum on "Duty", before I had read the last post here, but would not change it, but do appreciate the struggles we had in those days with liability versus effective karate.
The beat goes on.

Alan K