by Andy Marty
The potential for being the defendant in a lawsuit has never been greater than it is today for small business owners. Martial arts schools and its instructors are no exception. First of all, civil liability should be distinguished from criminal liability. Both vary concerning penalties, damages, and the amount of evidence required to prove liability. A criminal case is only initiated by the state or federal government. Intentional acts are the basis for crimes and rarely are careless or negligent acts sufficient to invoke criminal liability. Potential penalties for criminal acts include monetary fines and imprisonment. In order to be found subject to criminal penalties the state or federal government must prove its case against you beyond a reasonable doubt. If we were to convert "beyond a reasonable doubt" to a percentage scale, the government would have to prove the allegations against you to about 95%.
By contrast, a civil case is initiated by a person acting in his or her own behalf. Careless and negligent acts, as well as intentional acts, may invoke civil penalties. Potential penalties for civil liability are only money damages, not imprisonment. In order to be found liable for money damages the person initiating the lawsuit must prove his or her case against you by a preponderance of the evidence. If we were to use a percentage scale, that means proving the allegations against you to 51%, a much lower burden of proof than in a criminal case. This paper will only address civil liability.
Two major areas of civil liability exist for martial arts instructors, assault and battery and premises liability.
Although these terms are almost always used together and appear to be synonymous, assault and battery have two distinct meanings. Assault is where you cause someone to fear or expect bodily harm with the present ability to inflict harm. No actual contact is made. Battery, of course, is where you actually make contact with someone. There are two types of battery, offensive touching and harmful contact. An example of offensive touching would be unwanted sexual contact. As a martial arts instructor, if you commit an offensive touching battery you might as well hand over the keys to the store, vehicle and your bank accounts because you are done. You can not get insurance to cover this type of liability.
It is hard to imagine a martial arts class without contact in many forms including punching, kicking or any number of grappling techniques. The key to avoiding civil liability for battery or assault in the normal marital arts class is twofold: consent and/or assumption of the risk. Consent must be given by the student, or a person empowered to consent for the student (a parent). The consent must be to the particular conduct or substantially the same conduct. Warning: consent may be limited in time or activity and consent may be terminated. For example, if you are teaching boxing techniques with gloves and head gear, but you throw a Muay Thai kick to your student causing injury, consent may not be valid. You must ask yourself, given the techniques that you are teaching, what is the extent of the consent? An example of the termination of consent is when your student or partner taps-out. The tap signals an end of the consent for the technique because of pain or perceived injury if you proceed. If you continue the technique after the tap you may be civilly liable for battery.
Assumption of the risk prevents civil liability for battery or assault where the student voluntarily consented to accept danger of a known and appreciated risk. Once again, the extent of the risk that is assumed may be limited in time or activity and may be terminated.
As a martial arts instructor you may be liable for the assault and battery committed by your employees pursuant to the doctrine ofrespondeat superior. Loosely translated, that means you would pay for your employee's mistakes. Therefore, it is important that your employees are well instructed in what constitutes an assault or battery and the limitations of consent and assumption of the risk.
When presented with the question of determining civil liability of martial arts instructors, I thought, was it possible to teach a student striking techniques and then be sued by a third-person whom the student injured? I found no reported cases in either Missouri or Illinois where a third person sued a martial arts instructor for injuries caused by his student. Merely giving the knowledge to a student that may be used to harm another person is not sufficient alone to cause you to be civilly liable. I would compare this to a gun manufacturer or brewery. Every time a gun is used in a crime, Smith and Wesson is not sued for civil damages. Likewise, when drunk drivers kill, Anhueser Busch is not sued for civil damages.
Like all business operators, a martial arts instructor may be civilly liable for the ownership, possession or use of real property. This is a complex area of the law because liability is determined by the status of the person on your property. Liability differs if a person has your express or implied invitation and is there for mutual benefit (a student); if a person is there for his own purposes with your express or implied consent (a solicitor); or if a person is a trespasser. The bottom line is that a martial arts instructor must exercise reasonable affirmative care to see that the premises is safe for visitors. This includes a duty to provide guests with a reasonably safe means to enter and leave the gym. Removal of snow and ice from walk ways or parking lots is included in this duty.
Examples of unsafe conditions that may give rise to liability are defects in stairs or hand railings, uneven floors, wet or slippery floors, objects on the floor that may be tripped over, defective electrical sockets, poor lighting, objects falling off shelves. This is not an all inclusive list and the imagination is the limit for situations that may give rise to liability.
As a possessor of property, you may be liable for injuries cased by these conditions if you knew they existed or, by the use of ordinary care, should have known they existed. That's right. You may be liable even if you did not know the condition existed. Both Missouri and Illinois are comparative fault states. This means that the visitor's conduct is taken into consideration in determining liability. If the dangerous condition on the property is open and obvious, then you would only be liable when the visitor exercises ordinary care but is injured anyway. If the visitor is careless him or herself, your liability would be diminished but not eliminated.
An important practice would be to survey your premises regularly for potentially dangerous conditions. A good rule to follow would be this: the higher degree of use or traffic in your gym, the more frequently the survey. Regular maintenance should also be a priority.
In closing, you are more likely to find yourself a defendant in lawsuit when your visitors are injured due to an unsafe condition on your premises, than for an assault or battery. However, I believe the risk of lawsuits due to offensive touching are more and more likely. Err on the side of caution in this area and constantly be aware of your student's state of mind.
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