IntroDisclaimer. The author is not a lawyer and this article should not be construed as legal advice.
As a school owner, you train and take care of your students (your customers) and your students all love you. However, will they love you when they are injured while sparring? You may be able to defend yourself against any attacker, but can you defend yourself against a lawsuit brought by an aggressive lawyer.
For example, a long-time student is sparring while you supervise. As the pair approaches the wall, you yell "BREAK!" One student stops action and relaxes but the other does not hear the call to break and kicks the student in the face. The student shrugs it off and completes class with no complaints. Then, weeks later, you receive a letter from a lawyer demanding $5,000 for the student's dental repairs due to the kick to the mouth, time lost from the job, and pain and suffering. The letter states that, if you do not pay, a lawsuit will be filed against you and the school.
What do you do now? How could the student do this to you? What could you have done differently? Maybe you could have stepped between the students. You think, it just an accident; everyone knows no one was at fault.
You have no friends when it comes to money. If it costs someone money or if they are convinced they could get some money, some people will turn on you in a second. Some never take responsibility for their actions. If they are injured, it is never their fault. They need to blame someone else and that someone else will be the one with money.
Liability insuranceThe martial arts have fewer serious injuries than other sports such as basketball, softball, and soccer but there is always the possibility of injury and its accompanying exposure to liability for the school or an instructor. Therefore, the first step in protecting your school and its instructors is to have adequate liability insurance. The policy must cover the types of activities in which the school participates, and it must have adequate coverage. The policy must also cover the school during away events, such as tournaments and camps. If the policy requires students wear safety equipment during activities, such as protective sparring equipment, then the school must have strict rules that require the use of the equipment when required, with no deviation.
Even if the school has insurance that pays for a lawyer and any settlement or judgment that results from a claim, any claim will still cost the school more money because it will cause an increase in insurance premiums. The school may suffer even more damage by a lawsuit, even if it wins, because of the school's damaged reputation.
Claims against martial arts instructors and schools occur everywhere in the country, but few gain the attention of the media. Few claims reach the appellate level and get reported in legal periodicals. Most are either settled or concluded at the trial level without an appeal. Therefore, don’t assume that just because you have not heard about the lawsuits that they do not occur.
Case law examplesA New Jersey court held that a karate instructor is required to exercise the skill and knowledge normally possessed by members of the profession in good standing in similar communities. The court further held that either party may offer expert testimony to establish what the appropriate standard is under the circumstances. For instance, if a student is allowed to spar without adequate training and an injury occurs, the school may be liable if professionally recognized standards for sparring were not met.
A New York court addressed the issue of whether a student should be barred from recovering for an injury received during sparring because he "assumed the risk," meaning that he undertook the activity with knowledge and appreciation of the possible consequences. The court held that because karate is not as common as football or baseball, the dangers are not readily apparent to the average person. Karate claims to teach students how to punch and kick in a manner not presumed to be known to the average person, therefore, the karate school must ensure that students are appropriately trained prior to sparring. The court held that, not only is sparring a dangerous activity, it is more dangerous to spar with a relatively unskilled partner than with an experienced opponent.
In a Florida case, a student was sparring with another student at the defendant's home when he was injured by a takedown. The court held that to determine whether a karate student assumed the risk of sparring, a jury must determine:
- whether the student either actually or subjectively knew of the risk, or, if not,
- whether the student, as a reasonable person, should have known of the risk of his activity, and
- whether the student voluntarily assumed the risk.
In this case, the court held that the plaintiff was aware of and voluntarily assumed the risk of injury. Since the plaintiff in this case only sued the student who injured him, the court did not address whether, under any circumstances, a karate instructor or school may be held liable for knowingly allowing, encouraging, or condoning students to spar outside of supervised class.
In Ohio, a court held that a student who fell on a slippery floor while kicking a bag was aware of the risk and was therefore barred from recovery.
- Have each student (or a parent or legal guardian of each minor student) read and sign a waiver and consent form. Your waiver should be tailored to suit the practices of your school and your state's laws. It should advise of the nature and risks of studying taekwondo, and it should be drafted to protect your school and its instructors, assistant instructors, and visiting instructors adequately from legal liability. Your waiver form should be drafted (or at least reviewed) by an experienced attorney.
- Ensure each student is ready to participate in the specific class activity.
- Ensure all class activities are supervised by a qualified, experienced instructor. Assistant instructors may conduct certain class activities if an experienced instructor is also present.
- All instructors should be properly trained in the art of teaching. Possessing a black belt does not automatically qualify a person to teach.
- The rules of each class activity should be fully explained to each student before he or she can participate, such as sparring rules. Rules should be strictly enforced, and students should be disciplined for violating the rules. The discipline should match the offense. Ignoring offenses will convey that you condone the activity.
- Due to the risk of disease, do not allow students to share sparring equipment, especially at tournaments. Each student should be required to own his or her own gear.
- Students of similar physical size and ability should be paired together during partner activities, such as sparring.
- Beginning students should be encouraged to practice alone at home, but not to engage in group activities or pair practice outside the school.
- Menard, S. (1996), The Best Defense? How About a Good LAWYER? Sure, you can block, kick, and punch. But can you really defend yourself - against a lawyer? Inside Kung Fu Magazine. November 1996.