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 Post subject: Duty
PostPosted: Thu Mar 07, 2002 4:13 pm 
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Location: Weymouth, MA US of A
Recent posts on dojo liability brought back some important information I think needs sharing. A good background on duties and responsibilities is essential in any kind of endevour where people might be harmed or damaged.

In order to prove neglegence, a PLAINTIFF in a civil case must prove the following:

(1) The Duty imposed on the defendant.
(2) There was a breach of duty by the defendant
(3) The breach of duty caused the injury
(4) There was an injury


For medical cases, for example, the pliantiff must prove the doctor had a duty to remove the correct kidney, the doctor didn't remove the correct kidney, but reomeved the wrong one, the breech caused and injury, and the patient is now on dialysis for the rest of their life. Simple enough here in the example, but sometimes can be VERY difficult to prove. This is why medical practice lawyers need to be highly specialized, potentially can make a lot of money for themselves and their clients. This is also why the vast majority of medical malpractice plaintiffs are told by their attorneys that there isn't a case, b/c it would be impossible to prove the four necessary elements.

Now, turning our attention to dojos.

Duty-What duties do instructors owe their students?

Maybe, just maybe, they have a duty to excercise that degree of skill and knowledge that would be exercised by a competant practitioner in the same or similar circumstances.

What would constitute a breech of this duty?

Would KOing someone during class constitute a breech? Would hitting someone so hard in Sanchin testing that a finger breaks constitute a breech?

Would NOT teaching someone effective self-defense techniques constitute a breech (i.e. the Cardio Kickboxing folks who get a good work-out, but aint' so good for self-defense)?

Who would be the expert witnesses lined up for the plaintiffs? The defense?

WOuld the plaintiffs be forced to get only Uechi-Ryu expert witnesses? What minimum rank would they need to be? Could the plaintiff only need to get ANY competent MA instructor, regardless of style?

Q: In your opinion, sir, is bare knuckle sparring dangerous?

A: Yes. In my 23 year experience as a Tae Kwon Do instructor at the Greater Boston Sport TKD School, bare knuckle sparring is very dangerous and the participants always seem to be prone to injuries. That's why my TKD federeation mandates mouth pieces, sparring gloves, chest protectors, groin cups and foot pads. We train as hard as the Uechi-Ryu school down the street. TKD is an Olympic sprt, mind you. But, we rarely have injuries like the ones the plaintiff have.

Any answers? Maybe I'll take a look at the book written by student's friend.

Gene


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 Post subject: Duty
PostPosted: Fri Mar 08, 2002 2:58 pm 
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Posts: 493
Location: Framingham, MA USA
Hello Gene:

It is Friday morning and I am sneaking time here and there to finish the Defamation presentation.

Your post here and on the GEM,sensei post get to the heart of the problems faced by instructors, dojo owners, and fellow MA's whom engage in kumite, bunkai or any combination of exercise between the students.

To completely and throughly answer your questions in the proper legal sense requires not only a knowledge of tort law, and the laws of agency, all required statutory or regulations of adminstative agencies, contract law (breaches etc.) I think that your questions are well organized and get to the point and you research very well.

In law school we learn by legal subject such as torts 1 and torts 2 and contracts 1 and contracts 2. We also learn by case study assigned by the professors.

So we have subjects, lectures on the subjects, case law and adminstrative law studies, and statutory studies.

At about the senior year you begin to realize that very few reported cases are purely tort, contract, agency and all the other segmented studies. The trick is to be able to answer the multiple choice questions, which are not labeled as to subject matter, and on the essay part, the hypothetical case is presented and you must answer "how will you advise your client."

You are probably aware of this and I write this for people who are less aware of how lawyers must analyze cases.

I would love to have more lawyers on this forum to cover specialties subject matter and otherwise break down and answer these questions.

I would like to begin addressing these issues soon.

Regards,

Alan K


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 Post subject: Duty
PostPosted: Fri Mar 08, 2002 9:40 pm 
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Location: Weymouth, MA US of A
My "research" is actually a culmination of the risk management lectures I attended as a requirement to maintain my pharmacist license in Mass. Also, I just completed my first semester of grad school where one of the courses was public health law. Negligence was one of the subject matters we talked about.

Maybe the question of "duty" owed to students is an unanswered one?

I'll be waiting for your answer Image

Take care!

Gene


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 Post subject: Duty
PostPosted: Mon Mar 11, 2002 4:21 pm 
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Location: Framingham, MA USA
Gene,

Your questions are quite valid when negligence and the duty of care requirements are applied to Martial Arts schools and instructors.

Unless conduct is grossly negligent or guilty of wilful and wanton misconduct,to the extent that a judge could rule as a matter of law that a defendant is responsible, we have to look at decided case law which may apply, any administrative regulations or applicable statutes.

Just like issues involving self-defense, what is required of a Dojo owner, sensei, or junior instructor is a matter of fact governed by "the reasonable person" standard as to how a person acts or fails to act and as to the facts as found by a jury or judge.

The examples given in case law may be helpful particularly where you have a case right on point to your case.

So we go down the line and establish that in order to develop a case, you need to prove facts, and if conduct of persons is to be measured, you need a yardstick and opinions of so called "experts".

Let us say that you bring in a TKD expert who will give opinion of excessive force of a Uechi Ryu instructor who caused an abdominal hernia by hard Sanchin testing.

If the witness qualifies with credentials strong enough to have the judge rule on that area of his expertise (reasonable force), his testimony would be weighed by the jury.

Perhaps a Uechi Hanshi is called in, then the testimony of he or she would be evaluated by the jury.

The jury determines the facts guided by the law instructions of the judge.

If evidence is deemed to be inadmissable, and either side takes exceptions to admission, this can be the subject matter of an appeal. The same is true of the judges instructions to the jury.

Unless errors are made, as determined by the appropriate appellate court, the juries finding of fact will stand.

You have given an outline of requirements in a civil tort case as follows:

"In order to prove neglegence, a PLAINTIFF in a civil case must prove the following:
(1) The Duty imposed on the defendant.
(2) There was a breach of duty by the defendant
(3) The breach of duty caused the injury
(4) There was an injury"

To answer your question in a general way, yu could say that the duty would consist of what is required, under a given set of circmmstances, to protect the student from injury, and FURTHER what is required post injury care or conduct to abate the injury.

People who are not MA's are going to judge this based on what is presented and often their own interpretation of what is reasonable.

The duty may vary depending on what could be expected in a studio (such as a chain) or Good Guy Joe, who teaches his friend by teaching in the basement of his home where they move the pool table to begin class.

In your medical example, the degree of care expected of medical people can, as one measure, to be of the standard expected in that particular medical commnunity.

If the Sensei and Dojo require the best of equipment for sparring, have and maintain a proper first aid or medical kit, have on hand proper sterile gloves, and other such equipment this would be a good indicator of a degree of care and rsponsibility.

I know I'll catch flack on this, but if you want to follow the letter of the law, you do not permit any sparring in at least the kyu ranks without full equipment i.e. proper gloves, full helmet, chest protectors (especially for females and children) & groin cups for males. No sparring without having sensei or qualified junior instructors on the floor to supervise the amount of persons performing kumite.
The use of floor mats in any isntruction involving take-downs, and at least instruction in front and back falls. The list goes on, and the more we refrain, and the more we insure that injury can occur the less likely we are to be liable in a tort case. But if go to extremes to insure, do we turn MA's into helpless whimps?

Next print rules of conduct that each student is given relative to treatment to fellow students and to contact in sparring.

The more you require all to act like a wussy, the less you will be likely to be deemed negligent.

If this is an oxymoron to good MA effectiveness, it becomes an issue with those who fear the legal consequences.

Another issue you raise, is the right of a student to effective self defense instruction.

This is a good question when some studios use the term even in their name.

This would be an issue for anything from breach of contract to consumer fraud.
I've even felt that an utter failure to teach basic self defense could result in a suit for the consequences of tort liablility of a "teacher" who failed to provide any self defense teaching.

You bring up the example of cardiac kick-boxing instruction as an example of failure to teach basic self-defense.

Did the school misrepresent that the workout was something more than physical exercise?

Was there a representation or expectation based on advertising that cardio kickboxing was a form of self-defense?

As I am sure you are aware that the medical community was in a crisis state several years ago, by rising malpractice insurance costs, and now there is a certification process necessary to enable a lawsuit based on malpractice.

I can only tell you that these same issues were around since I got into Uechi-ryu in the beginning of 1973, and great inroads have been made thanks to GEM, and the Sensei & hanshi who have developed standards, which if employed, will provide for less injuries, IMHO.

Alan K


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 Post subject: Duty
PostPosted: Tue Mar 12, 2002 2:01 am 
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Location: Weymouth, MA US of A
Hi Alan,

"I know I'll catch flack on this, but if you want to follow the letter of the law, you do not permit any sparring in at least the kyu ranks without full equipment i.e. proper gloves, full helmet, chest protectors (especially for females and children) & groin cups for males."

This is resonable for full contact or full speed sparring. For lesser speed, "Tai Chi"-type sparring, maybe the risk isn't there, so the above protections may not be necessary.

Higher risk = Greater protections

Right?

"The use of floor mats in any isntruction involving take-downs, and at least instruction in front and back falls."

Reasonable to me...

"The list goes on, and the more we refrain, and the more we insure that injury can occur the less likely we are to be liable in a tort case"

MORE protection = LESS liability

Right?

"But if go to extremes to insure, do we turn MA's into helpless whimps?"

If we go to "extremes", haven't we gone past the "reasonableness" standard? Granted "reasonable" is a minimum, not a maximum. But, are we expected to go past reasonable if the situation doesn't warrant?

"Next print rules of conduct that each student is given relative to treatment to fellow students and to contact in sparring."

I have a training partner (green belt) who as a white belt, grabbed a sparring opponents kick, turned the opponent so his back was facing him, and them kicked him in the testicles (not hard and cups were worn). When adminished, he said "I thought anything goes?"

"The more you require all to act like a wussy, the less you will be likely to be deemed negligent."

Wussiness is not reasonable for a MA school, and no one (I hope) is expecting that charecteristic, including any laymen on the jury (again...I hope). But, no one (I hope) thinks it's ok to break the orbital bones of their students either.

"If this is an oxymoron to good MA effectiveness, it becomes an issue with those who fear the legal consequences."

If one acts reasonably and with due care, then there is no problem. The problem right now is no one knows what "good care" for a MA instructor is.

Practice hard and motivate our students (and ourselves). Treat them with propriety and respect and they will do right by you.

Break their orbital bones...KO them in "light" sparring"...Viciously beat them in Sanchin while they are stand there motionless and defenseless, concentrating on "focus" and "breathing" while you hit them again and again with full force abdominal blows that lift them off the ground causing injury...leave the nailhead sticking out the hardwood floor creating a new fashion trend ( "The Pierced Toe" )...

...and you deserve whatever you get, for you acted unreasonably, and without due care.

I use the word "you" pluraly, 'cause I also am an assistant instructor, and I do my best to train hard, motivate my charges, and act safely.

Gene


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 Post subject: Duty
PostPosted: Tue Mar 12, 2002 2:06 am 
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Location: Weymouth, MA US of A
Remember, in order to prove a case the plaintiff must prove, among other things, that there were damages. Even when tagging someone really hard, if I don't cause an in ury, then there is no liability.

Gene


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 Post subject: Duty
PostPosted: Tue Mar 12, 2002 2:02 pm 
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Posts: 493
Location: Framingham, MA USA
Gene,

You said in your last post:

"Remember, in order to prove a case the plaintiff must prove, among other things, that there were damages. Even when tagging someone really hard, if I don't cause an in ury, then there is no liability"

And that statement is absolutely correct.

After submitting evidence & Proof that the conduct of the defendant was tortious plaintiff also has the burden of proving injury, which resulted in damage to the plaintiff and show in detail what the injury consisted of and the amount of pain, suffering, anguish and the extent of the disability. Proof will be needed for the extent (if any) of total disability (how long) and the extent of partial disability.
Special damages also must be proved such as loss of wages and a litany of other things.

If plaintiff proves his case but cannot establish damages which the jury can, from the evidence presented, calculate dollar damages, then damages will be de minimus.
I am sure you have heard of a one dollar verdict.

These trials are quite expensive even if you win as a defendant. This alone can be a reason for having liability insurance,
Many businesses have specific negligence insurance and back it up with say a million dollar "umbrella policy".

Like GEM,sensei in the Good ole days post, that when martial arts were young in this country, it was a struggle to pay expenses and even after things got rolling, there were not too many cases of student law suits.

Times have changed and so have the laws to some extent.

All that we can do in this forum is to make readers aware of liability and to some extent apprise them of liability laws.
While we are at it, no one has even mentioned the fact that dojo renters or owners should have a general liability policy or coverage for things such as falling or slipping in the dojo, for students and guests. As a rule, lessor's usually require this in a lease which often provides indemnification to the lessor.

Alan K


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 Post subject: Duty
PostPosted: Tue Mar 12, 2002 4:59 pm 
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You can and should buy a personal Umbrella liability policy, over and above your underlying homeowner's liability limits! Most, but not all, umbrellas will extend coverage to defense and indemnification of the insured [you] -- if the intentional act, empty hand or with weapons, was as a result of self defense! You must check with your agent to be sure your policy will cover this! An umbrella is usually written for $ 1 M and it only costs about $200 per year!

The basic homeowner’s policy excludes intentional acts [such as raising your hands to hit in self defense] even if you were justified.

If you are a martial artist and or carry a weapon, be smart and buy the policy.


------------------
Van Canna


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 Post subject: Duty
PostPosted: Fri Mar 15, 2002 6:40 am 
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Posts: 181
Location: Sacramento, California, USA
Gene and Alan:

OK, I will be the first to confess that it has been quite some time since I last curled up with Prosser on Torts, but Gene's list seems to be missing proximate cause. Is this no longer a requirement for negligence?

Robb


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 Post subject: Duty
PostPosted: Fri Mar 15, 2002 1:51 pm 
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3. The breach of the duty caused the injury.

Gene and Alan have used the concept of proximate cause. They merely have used understandable English rather than legal jargon. Contrary to what you may be thinking, this choice to omit jargon is not a reason to report the lawyers to their respective bar aaociations. Image

Say I, a teacher, owe a student the duty of keeping the gymnasium environment safe. (This hypothetical requires a huge suspension of disbelief, a number of belt promotions for me, and a gym and students, but bear with me. Image)

Say the mats are faulty, and I know it. I have not repaired them. This is a breach of that duty.

Say a home/gym invader comes in uninvited, unexpected, and brains my student with a baseball bat. He is injured; there are damages.

But these damages are not due to my breach of duty by having unsafe mats. There was an intervening and superseding cause of his injury: the thug with the bat. The thug is wholy responsible.

Now, suppose my student was knocked off his feet and fell onto the faulty part of the mat. He becomes injured again, because the mats were faulty. Was my breach of duty a cause of this injury?

Yes. While it is not generally foreseeable that your dojo will be invaded (now that John Keehan has been dead for over a decade Image ), it is foreseeable that someone will fall on a mat used in martial training; that is the purpose of such mats. If the mats are faulty, it is foreseeable that someone will be injured in the fall.

If an injury is so unlikely that it is unforeseeable, one should not be held liable for not having taken unreasonably high precautions against it.

Now one gets into the delightful concepts of multiple causation, apportionment, and comparative/contributory negligence. But that's for another post.

Damn; almost like being in law school again.... Image

student

[This message has been edited by student (edited March 15, 2002).]


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 Post subject: Duty
PostPosted: Fri Mar 15, 2002 1:54 pm 
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And this is not that follow up post; this is a double post. Sorry. Alan; feel free to delete. In fact, I'd take a deletion as a favor.

student



[This message has been edited by student (edited March 15, 2002).]


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 Post subject: Duty
PostPosted: Fri Mar 15, 2002 2:36 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
There was an intervening and superseding cause of his injury: the thug with the bat. The thug is wholly responsible.


Good point made better by the addendum of “multiple causation”

Had a case a few years back where a small family restaurant and bar on a main drag got a visit from half a dozen unruly bikers.

At some point their drinking was shut off, and they left in a huff threatening to return later, like in “I’ll be back” __

They did, 45 minutes later, with baseball bats, and started swinging at the seated patrons. One person, husband and father, was killed.

Our defense law firm advised that the establishment owed a duty to keep the patrons safe and should have foreseen such element in the public place, and taken precautions.

The very fact of the owner not calling the police to advise of the threat and of not shutting down the business for the day was enough to expose them to liability.

We paid off big bucks to the estate, not under the liquor liability policy, but under the business liability policy.

Any dojo owner, to be on the safe side, should foresee interference from unsavory characters at one time or another, among the myriads of mishaps that can befall the student body or the individual student.

And he should have some reasonable mechanism in place that will make him appear as a reasonable man in the eyes of the law.

My cases of premises liability are nothing short of fascinating.

Thanks, student, for defining this for us.


------------------
Van Canna


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 Post subject: Duty
PostPosted: Sat Mar 16, 2002 2:58 am 
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Location: Sacramento, California, USA
Student:

I must disagree with you. Duty and proximate cause are not the same. If we're going to discuss the concepts, we don't need to use jargon, but we do need to follow the same steps a plaintiff attorney must follow to prove a case against a defendant. If there is a break in any of the elements, the case against the defendant falters. While the concepts of duty and proximate cause are related, they are distinguishable. In the case Van cites, apparently there was some duty of care owed, and the acts that led to injury were foreseeable. Without the two, the case should have gone away. But hey, not my area of law. That's why I asked.
Robb


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 Post subject: Duty
PostPosted: Mon Mar 18, 2002 3:18 pm 
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Location: Framingham, MA USA
We have had some interesting posts concerning liability in tort caes; Student, I would not dream of editing out your post.
The issues presented by Canna, sensei go to the essence of the fact very few cases involve only one legal concept. You have facts involving many areas of the law in most cases.

Proximate cause, duties of persons or entitties, procuring cause and many more terms become relevant only when the case "the entire story" is analyzed.

New concepts continually appear and one example I cite was a case reported in this forum some time ago (now in archives)involving a Dram Keeper (tavern owner) who was sued for overserving a patron, who after imbibing large quantities of alchohol, walked out of the tavern and onto a highway and was struck and killed. The decedent had been accompanied by two companions who left the decedent in the tavern.

The plaintiff intestate's counsel sought damages by seeking to impose third party liability on the companions for failing to see to his safety.

Just the issue of the dram keeper alone raises several issues of duty too long to gon into here. Clearly duties and proximate cause are two different elements, but each must be weighed in view of the circumstances.
Another element in some cases is the doctrine of "res ipsa loquitor" latin for the thing speaks for itself, which concept may be applied to both tort and contract situations.

Student said: "Now one gets into the delightful concepts of multiple causation, apportionment, and comparative/contributory negligence. But that's for another post"

Well stated and all of the above issues become the subject of the difficult study needed by counsel in whether or not to accept a medical malpractice case in this state. There must be a certification process as a condition precedent to entering a suit in court. Counsel for plaintiff must go into great depth into determining if such a case has a chance for recovery.

Gene: Thanks for your post in response to my plea for what we can do to meet saftey standards without turning martial arts into a waltz.

Van, sensei: The umbrella converage is quite inexpensive, and in my experience, the coverage does begin at one million.

My own agent wanted to five me an umbrella and if combined with automobile converage would result in a savings. I am pleased at your post because this advice will be highly regarded by readers. Suit ad damanum of over a million dollars are not uncommon.

Robb: Don't feel badly for not having immediate command of "tort" law when you have long since concentrated in other areas.

I report cases, which are usually from the state and federal (1st Circuit) appellate courts or our own Supreme Judicial Court, and in preparing an article, go back to the text books. By the way Prosser(now called Prosser and Keeton, Law of Torts) is still popular, as is Restatement, 2d Torts.

Alan K


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 Post subject: Duty
PostPosted: Mon Mar 18, 2002 8:35 pm 
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Robb:

Respectfully, I think you misread my post. I did not state that duty and proximate cause were the same.

I did state in bold that the breach of the duty caused the injury (meaning this to be the equivalent of proximate cause), and then attempted - not very succesfully, I see - to illuminate this with examples where the plaintiff was injured, but there was no proximate cause.

My access to the Internet is limited for some reason on my own computer, and I am using a public library computer, so I shall not be making an extended post at this time.

student


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