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It has been bandied about on these forums and others about how much, if any, protection waivers offer the martial arts teacher in the event of an injury resulting from negligence in the dojo. A recent Mass. Supreme Judicial Court case may help answer that question. In other states, your mileage may vary...

The case is MERAV SHARON vs. CITY OF NEWTON. Click to read the full opinion.

Ms. Sharon was a high school cheerleader in Newton, who during practice fell and broke her arm (requiring surgery). When she turned 18, she sued the city. The court threw the case out on summary judgement. So she appealled, and the SJC ruled in May on her appeal. The SJC ruled that:

"It is well established that the defense of a release must be raised as an affirmative defense and that the omission of an affirmative defense from an answer generally constitutes a waiver of that defense."

In other words, you must PROVE you have a waiver, not make the plaintiff prove that you don't.

"'[i]t is a rule in this Commonwealth that the failure to read or to understand the contents of a release, in the absence of fraud or duress, does not avoid its effects.'"

" Massachusetts law favors the enforcement of releases"

"A party may, by agreement, allocate risk and exempt itself from liability that it might subsequently incur as a result of its own negligence"

"'There can be no doubt . . . that under the law of Massachusetts . . . in the absence of fraud a person may make a valid contract exempting himself from any liability to another which he may in the future incur as a result of his negligence or that of his agents or employees acting on his behalf.'"

"Whether such contracts be called releases, covenants not to sue, or indemnification agreements, they represent 'a practice our courts have long found acceptable.'"

"'placing the risk of negligently caused injury on a person as a condition of that person's voluntary choice to engage in a potentially dangerous activity ordinarily contravenes no public policy of the Commonwealth.'"

The court, with the above language, ruled that releases for voluntary activity are enforceable.

Ms. Sharon also argues that she signed the form under duress, saying that if she didn't, she wouldn't be able to participate in cheerleading. The court decided otherwise, citing a case that said, "'take it or leave it' release as condition of voluntary participation enforceable".

With regards to minors, the court ruled that parents may make such waivers for "voluntary, nonessential activity", but the minors themselves may void this contract when they reach majority.

So if you have adult students who started when they were children, it might be in your best interest to have these students sign the releases again after they turn the age of majority. The one their parents signed when they were kids may not be enforceable after that.

The court also goes on the rule on such things as applicability to non-profits and to school systems.

And while the court is siding with the school and others with regards to voluntary, non-essential participation in events, it leaves open the question of whether releases are enforceable "in the context of a compelled activity or as a condition for the receipt of essential services (e.g., public education, medical attention, housing, public utilities)". But they intimate that these might violate public policy and aren't enforceable.

As long as the release is properly signed, fraud isn't used to secure its execution and the activity covered is "voluntary" "non-essential", you're covered.

Please note, however, that NO RELEASE protects you against willful, wanton, reckless or gross negligence, or reckless or intentional conduct. I'll leave it to the legal eagles to define these terms. But, if you intentially harm a student or act recklessly, you're screwed!

Any questions? Commentary, Al? Norm? Murray?

Gene

Great job in reporting that Newton case.

At one time, in the common law of this Commonwealth, there was a legal maxim that one cannort contract away their tort liability, and many cases were decided that way such as cases regarding bailments (e.g. you leave your car in a garage and get a ticket, upon which is printed "not responsible for damage or theft of wehicles")

This did not make sense in sports cases where there was always an assumption of risk, and a strict interpretation such as the common law, would result in quashing a lot of sport activity.

As GEM sensei alluded in a recent post on this forum, he was on the scene forty years ago, and has been keeping up to date from such characters as myself (last thirty years), and Mario Rizzo, Esq., plus a host of others in the Uechi family of MA's, and many outher sources.

Yet, as much as I hate to say this, forty years in the evolution of law is just a wink of time and the change is relatively gradual.

We do things differently than we did forty or more years ago, and I find that if enough interest is generated, the Courts usually go along with the majority of states decisions.

The case you reported, Gene and the general trend could result in great financial benefit to MA's who teach, own dojo, sponsor or participate in events, and otherwise expose themselves to possible legal process.

Part of the financial benefits are lower insurance rates for liability insurance.

GEM. sensei has constantly emphasized the adherence to published rules, safety equipment, and behavior of participants.

Insurance companies require saftey standards and equipment requirements with the inclusion of waivers in contracts, and events.

While it is important to note that a minority defense is also an affirmative defense, I owuld not think, as a practical matter, there is a problem with a release. Long term contracts are barred in Massachusetts, and many contracts are on a motnhly basis. Each event of competition should produce new waivers for such specific events; therefore it is not difficult to create the paper trail of current releases.

The case decided was of course one resulting from ordinary negligence, and not one dependent upon degrees of gross negligence. A whole seminar could be be drafted concerning that suject matter, but for simpification, the latter conduct can usually be determined by examining the evidence and evaluating the "reaonableness or Unreasonableness of the conduct of the offending party".

We take great pride and create check lists, enter into detailed discussions, and plan in detail tournaments, seminars and a host of other activities, to insure a well attended and liked event.

However your defenses will be tested in Court by your promulgation of standard manuals, rules of conduct, behavior, and other self serving, but necessary paper trails and your conduct to test your duty of care, ergo, your awareness of negligence and what you have done to avoid the same and protect the participants and guests.

Alan K

_________________
"The Goddess of Justice is Blind"

I think now the focus of all future discussions must be on what types of conduct in Uechi dojos are reasonable and what types of conduct are unreasonable. What about hard Sanchin testing, resulting in broken fingers or ruptured abdomnial muscles? Full speed/contact sparring between two mismatched opponents, resulting in injuries to one of them? Obvious neglect in the upkeep of the dojo space, resulting in injuries do to loose floor boards, loose mats, nail heads sticking out or what have you?

So what separates ordinary negligence from gross negligence?

Also, since releases that cover voluntary and non-essential activity are valid, what about voluntary, but essential activity?

Even thought participation in karate is a voluintary undertaking, is participation in possibly dangerous drills or practices within the dojo covered, such as hard Sanchin testing or full contact sparring?

So what separates ordinary neglicgence from gross negligence?

Gene

These ticket releases, the court decied some time ago, are NOT legal, and those types of cases are different from the types of things a signed waiver might protect against.

Gene

Most if not all of the stupid pet tricks you refer to would, I believe, be judged gross negligence on the part of the teacher!

Now getting back to a more difficult to explain concept: Required activities: There should be no "required" activity. Students must be made aware of the risks involved in a typical class. Should they not be willing to accept these risks, they should either not join the school or not expect to be promoted.

Over the years we have had very few serious injuries in the dojo. This is as much because of "luck" as teaching skill. All of the serious injuries were caused during free style sparring. Lack of equipment and no clear sense of what was expected by students are the two factors credited by insurance companies for causing these injuries.

Statistics credit the safety equipment with the huge reduction in injuries. My feeling is that injuries have been reduced because students now spar as a sport instead of some kind of test of their all-out self defense skills.

In the old days, sparring was felt by many, to be the ultimate fighting test. Egos and reputations were very much a part of the tournament scene. Guys like Chuck Norris, Joe Lewis and K. Shinjo took their tournaments very, very seriously.

Today, competitors win and lose with the understanding that as a sport, they will have good days and bad days. They don't enter the ring (tournaments or dojo) with the idea that they should be seriously injured. In the old days, the stress was much more intense and the likelyhood of someone getting a full power punch in the face was very real. Competitors would rather brag that they were "disqualified" instead of losing by points.

Long winded explanation that validates my belief that today teachers should not have to instruct in a neglegent manner in order to turn out good students. These students may not be able to enter and win a NHB event, but they just might be able to fend off a local drunk wielding a club.

_________________
GEM
"Do or do not. there is no try!"

"On the nosey"
-Young Frankenstein

I suspect that the "strictness" of those requirements vary from carrier to carrier.

A lot of people jumped all over the WKF rules for sparring. Too violent, they claimed. And many of the same dojo have insurance that mandate head gear, foot pads and sometimes chest protectors for sparring (as well as mouthpieces and groin cups). However, during Summer Camp in 1999, John Hassel (who teaches in Shrewsbury, MA) said during a seminar run by Ron Fagan that there is dojo insurance available for schools that just use the WKF rules _ just the foam/cloth hand pads, a mouthpiece and groin cup.

So before someone gets on the insurance company's backs for mandating full body armor (and I don't think you are, GEM-Sensei), maybe it's just the insurance company you're using. Now I know that there are many factors going into the choice of insurance carriers-cost, prior dealings, types of insurance offered and other things. But some of the things we complain about could be relieved by shopping around your business.

Gene

I've asked John Hassell to send me info on this insurance. I believe he said it came from the AAU or another sports association.

I'm not sure, but the AAU may be "self-insured". They charge dojo a "per student" fee. Now this sounds great, except if you are running an "open" event. The AAU makes every student in a dojo join and only members may participate in tournaments. This would be very expensive for promoters like our group, who hope to attract competitors from every dojo, group and association.

Regular insurance carriers will not cover such events.

Please remember my earlier words about safety. I really don't think its the equipment that makes for a safe event. If you have ever attended a seminar or tournament run by Ron Fagan's group or a seminar taught by Carlos or any other official from WKF, you will know they emphasize skill, conditioning and control, not "full contact" fighting like many teachers believe.

_________________
GEM
"Do or do not. there is no try!"

I believe that we are often torn between the fear of legal liability and the dimunution of fighting reality when we start to breakdown the categories of negligence to see what will involve liability.

Most of us can, by using our experience and acquired common sense, figure out what consitutes ordinary negligence and wilfull wanton, reckless misconduct.

But in our sporting games, sport karate included, there will be purists who believe that resorting to structured rules of contact and prescribed equipment, water down the effects of what we train for and our ability to defend in real situations.

I can remember the time when almost all NHL players never wore helmuts.

Players had personalities and we loved to watch their expressions and recognize their faces.

Then came the incident when Teddy Green of the Bruins was attacked with hard blows to the head high sticking and severely injured. After that we all enjoyed hockey in any event and expected head protection.

Instead of trying to guess how hard we can go and still avoid liability, we should adjust to the idea that we have to create unified published rules categories and trained people to conduct events and tournaments.
Few can argue that we need our youth participation to be active in these events to perpetuate karate/martial arts.

This statement concerning youth can be true of any sport, hobby or art.
Amateur Radio was a powerful force in self perpetuation and future development prior to the internet, Now, other forms of communication interest the young.

We must live with the rules which protect sponsors, sensei and all the advocates and also protect the participants and the audience.

Rules are not cast in stone and can be changed or modified to suit their practicality.

The good news is that the IUKF (and other organizations) have long recognized the need of fairness and uniformity and you will all be seeing this come to reality in future events.

Alan K

_________________
"The Goddess of Justice is Blind"

Liability protections does not have to result in diminished fighting ability.

There are those people who think that the liability protections imposed by the courts and insurance companies directly result in the diminishing of fighting skills when hard-core self-defense is required. These same people complain that sparring has become watered down, there is no realism, punching got the face is discouraged or even disallowed, yada yada yada. Usually these people also pine for the "good ole days", when men were men and Uechi people hit!

To that I say:

If, over the last 40 years, we haven't moved past the "school of hard knocks" sparring regimen, then we deserve what we get. There are way better ways to teach hard-core "realism" than the kill or be killed sparring lessons.

The fact that we think that sparring rules = pansy Uechi is a testament to how far we still have to go.

But, that's just me

Gene

I happen to agree with you, Gene, but my job is to try to assess some happy medium of both schools of thought and still be able to teach and act within the spheres of rational and humane safety.

I believe the student can elect the style of training that he/she will receive in the Uechi ryu world.

As an example, if you train with Canna sensei or Bethoney sensei, you will receive the ultimate in practical defense training withour sacrificing needed emphasis on safety, the value of forms and a host of other things.

The list of others in Uechi who do the same thing is legion and I mean no disrespect to the these teachers.

The reason is that these sensei already have keen knowledge of what is legal and what is reasonable, all learned during their many years of service.

Gene, I am sure that you know most of these sensei.

My problem is that it is very easy to adopt the type of philosophy that you describe which is fine for any MA practitioner, but very dangerous for those persons who would teach the so called "hard style" who are unable to balance the real world of law and order and they advocate physical risk and contact based upon the premise of realism.

It is for that reason, rules and regulations are necessary to prevent mayhem and blood draining litigation.

The UFC, which at first catered to audience, pay TV customers, and those that advocate gladiator- like conduct.

Well the new UFC has many rules and regulations and come to think of it, so did the ancient gladiators.

We are fortunate to have in the IUKF talented and intelligent sensei who have drafted and published the multi-faceted rules and regulations designed to maintain a balance and equalibrium.

These are under review by legal and professional persons who will suggest changes or revisions and of course this Board will monitor for reaction of participants and the audience.

Readers who have not seen the harder side of martial arts should go to see our own Joe Pomfret fight in the NHB (no holds barred) fight (see home page of Forums for January fight information).

Regards,

Alan K

_________________
"The Goddess of Justice is Blind"

I'm willing to bet that, as hard as Joe and hsi sutdents train, that there are no injuries. Same thing with Gary Khoury's school and Steve Perry's school as well.

Gene