2/26/2004
TKD ARTICLE
by Peter W. Berger Esq

What follows should not be relied upon as specific legal advice. The purpose of this article is to give the reader a general idea of how courts around the country approach certain issues. Remember, not only can the law differ from state to state, but even the cases I talk about here, can be changed tomorrow. With that said, the most common concerns I see, are about liability waivers that parents are asked to sign at events and at their DoJang; and the potential liability of instructors and/or other students when someone is injured.

In 1991, the highest court in the land, the United States Supreme Court, promulgated the general rule that a parent cannot waive the right of a child to sue. That means that even where there is a signed waiver on behalf of a minor (usually defined as less than age 18), it may have no legal significance at all. In 2002, in the case of Cooper v. Aspen Skiing Co, 48 P.3d.1229 (2002) the Colorado Supreme Court held it was against public policy to allow parents to waive the potential litigation right of their child. This was because the parent has an “unacceptable conflict of interest” when the parent is deciding to release, or waive, “….a minor’s own prospective claim for negligence”. (In my state of Iowa, for example, a minor has until one year after turning 18 to file a lawsuit. This greatly extends the normal statute of limitations which is 2 years in most types of cases). The New York and Texas courts agree that children are not bound by such a waiver, but California held that a parent may contract for a child and therefore CAN sign a release on behalf of their child. In Ohio, parents have the authority to bind their minor children to waivers having to do with volunteer and non profit sports. Other states may have different interpretations. The bottom line? Sometimes waivers that don’t have any legal significance may have the desired result of discouraging litigation.

That brings us to can an instructor or fellow student be sued for injury? Anybody can sue. Would they win? That is another question, but most legal questions can be answered by simply using common sense. The key factor is what is reasonable under the circumstances at the time of injury, taking into consideration the dangerous nature of the sport. The most recent appeals court case I could find in the United States is Rodrigo v. Koryo Martial Arts, 100 Cal.App.4th 946 (2002). Roxane Rodrigo believed she suffered a ruptured Achilles tendon during a drill when she may have been kicked from behind by another student. The California appeals court’s description of what happened is interesting: “…she was attending a class conducted by Master Ki Bok Kim, a fourth degree black belt, certified as a ‘master’ by the world governing body for tae kwon do. Six adults were involved in the class being conducted by Master Kim. A class of 11 children…simultaneously was… under the control of an assistant… The adult students were practicing a kick in which they were aiming at a target—a cushioned leather pad held by Master Kim. The adults were lined up, waiting for a turn to kick the target, when appellant’s injury occurred”. Ms. Rodrigo lost her case against Master Ki Bok Kim. What is enlightening, is the detailed description of TKD, and the legal “intersection” of the instructor’s duty to the student, and the assumption of risk that students assume when learning, and participating in TKD, or any contact sport.

There is a balancing test. Compare those risks inherent to the sport, with the instructor’s duty not to make the sport more dangerous than it already is! The Court in the Rodrigo case said: “Tae kwon do is a martial art that ‘seeks to integrate mental acuity and emotional discipline with strenuous physical activity and interpersonal combat with both kicking and punching. Personal discipline and respect for the teaching master and other students are essential elements of the sport”. In Master Kim’s case, he didn’t increase the risk of injury to Ms. Rodrigo, other than what could normally be expected in this sport. “…Tae kwon do is a martial art…. It is self-evident that a sport that involves interpersonal combat with both kicking and punching carries not just the inherent risk—but arguably the certainty—that a participant will not only kick and punch other participants but will also be kicked and punched by others. Likewise, learning how to kick and punch in a case in which other students are also learning the same skills involves the same risks”.

The court opinion in Master Kim’s case provides a roadmap to others about how courts around the country will analyze a claim lodged by a TKD student for injury, where negligence of the instructor is alleged. The key factor will be whether the instructor increased the risk to the student, more than the risk that is inherent in learning (or participating in) the sport. In the cases about assumption of risk for athletes getting hurt while learning or participating in sports interesting examples come up: like the placement of “moguls” on a ski run; playing football; or riding horses. In the skiing example, the ski resort had a “duty to maintain its towropes in a safe, working condition so as not to expose skiers to an increased risk of harm..” but the presence of moguls (small hills on the course) didn’t expose the skiers to an increased risk of harm. In another California case, the claim of a judo student was “thrown” out of court, after he was injured while practicing with an instructor; because of the inherent danger of the sport. Bushnell (43 Cal.App.4th)

So, there is the issue of whether the sport is dangerous to begin with, coupled with whether that activity was made more dangerous by the instructor. In Master Kim’s case it was not. In Petretti vs. Jefferson Valley Racquet Club Inc. 668 N.Y.S. 221(1998) there was a different result. There, a novice tennis player was hit in her eye by the instructor, who was hitting balls to students in “quick succession”. The court gave examples of others being injured who were novices: “While the student may properly be found to have assumed risks inherent in the process of learning the particular sport, this does not mean that a novice skier automatically assumes risks associated with the expert slope, or that student taking his first karate lesson automatically assumes risks inherent in defending himself or herself against full scale assault carried out by a martial artist.” (Emphasis added). The Court concluded that given the limited amount of preparation, the risk of being hit with the ball, under those circumstances was not necessarily “known, apparent or reasonably foreseeable to her.”

It is interesting to note that what the student expects to happen isn’t necessarily important in court. A great example of this concept was the participation by Ms. Knight in a coed football game that she believed would be “mellow”. She was injured even after she complained the game was getting too rough, and after she was given the “impression” the game would be less aggressive. In Staten v. Superior Court 45 Cal.App4th 1628, (1996) the defendant’s aggressive play did not constitute intentional misconduct or reckless behavior outside the “range of the ordinary activity involved in the sport”. This again pointed out the Doctrine of Assumption of risk. The person who sued after she was injured, had her case thrown out because her injury was one that naturally occurs in the sport she participated in.

An interesting thing to think about, at least from this lawyer’s perspective, concerns the routine allowance of “experts” to spar “lower belts” in training. This may be fundamental to growth, when handled correctly, but full trust must be place in the senior student or instructor by the supervising instructor or master. But, what are the legal ramifications of injury sustained by the novice during this training? Of course there are many variations of this scenario, but the question remains, what if the green or blue belt is injured while sparring a black belt in training? Given the extreme example of the New York Petretti case, we discussed above, where the novice karate student had to defend against a “full scale assault” by a martial artist, that could spell legal trouble for those involved. But, things aren’t usually that “black and white”. There are many factors to consider. For example, does assumption of risk require the lower belt to accept his fate as part of training in this contact sport? What amount of force was used, and should have been expected? Was the expert previously known to have dangerous technique? If the sport is inherently risky, the novice could have been injured anyway, through no fault of the expert. Is the expert/black belt and/or instructor still liable legally then? Even if the injury was caused by an improper technique of the novice, or by the contact expected in the sport, there could be blame placed on others. In my opinion, the most dangerous potential legal pitfall for the higher belt and instructor is injury caused to a lower belt in class. Food for thought, and the subject of future discussion.