Keep your liability insurance up to date.

[John Bishop]

Even when you win, you can lose (legal fees).

http://www.opengavel.com/opinions/2006/F/007/2006-F007-04200001.html

[Gints Klimanis]

Yeah, wow.  Well, we all know that friends and money don't mix.   Your best friend will always say he won't sue you, and all of tht changes when there is a large stack of unpaid medical bills and a lawyer is nearby. Then, it's time to share the burden.

[Ron Baker]

Thanks, Professor Bishop, for posting that decision. 

On the one hand, I think most of us are glad that the courts found in favor of Prof. Carter, although no one's glad about such a serious injury sustained by a student.  And with that decision coming out of the U.S. Court of Appeals in Illinois, it's going to be a pretty strong precedent. 

On the other hand, I'm a little concerned that such a precedent could have a negative affect on the Kajukenbo sifu/student relationship.  Specifically, students and/or their parents not trusting that they're safe in their instructors' care.  I'm definitely not implying that instructors are not safe or trustworthy.   I'm saying that a student who's scared that his sifu will break his arm, might pass up the Kajukenbo or Hung Gar school, and opt for some "no-touch" or "touchless" McDojo. 

[Sigung_Pat]

As both a California lawyer and a Kajukenbo school owner, I found the case interesting. 

First let me say that what is contained in this post is not legal advice (my disclaimer here, folks).  It is only my observations regarding the case and what I also have read from other cases.

The first part of the case had to do with PROCEDURE.  A deadline was missed regarding disclosing an expert.   If that changed the result of the case for this plaintiff, well, he most likely is going to sue his lawyer next for legal malpractice. 

The second part of the case had to do with the MERITS.  That is to say, the law in that jurisdiction regarding contact sports negligence.  Every jurisdiction applies its own laws.  Some jurisdictions are the same as other jurisdictions.  California applies the "primary assumption of the risk" standard.  Basically, the standard is:  You know you are engaging in a contact sport -- and you are assuming the risk of the type of injury that may arise from that type of contact sport.  Courts have utilized this standard because to not do so would "chill" participation and coaching in the activity to the extent that the activity could not realistically be undertaken and enjoyed in the manner in which it was intended.

Our school release of liability incorporates this principle.  Most insurance companies that I have recently researched require a similar type of release from participants. 

For me, the real reason to carry insurance is the legal defense you receive from the insurer if by some chance you are sued.  We have never had a claim against our insurance for injuries in the 16 plus years we have had schools.  We are a "hands-on" school.  Not a "no-touch" dojo.   That's one of the reasons why people enroll here.  If they want no-touch -- well, I know there are other schools that offer that, and I have heard parents complain later in the game, as it were, about when are their kids going to learn how to fight?  And lament about how all they do is forms and kick air.  Alas for them, I guess.  Maybe they should have done more research before investing their time and money at that kind of school.

To me, this case supports our Kajukenbo philosophy that we can train as we normally have and do not need to change our standards to a no-touch school. 

   

[Ron Baker]

Sigung Tyrell, I agree with you.  The lawyering for the plaintiff was shoddy.  It's as if the guy was acting pro se.   Expert reports are crucial in a PI case, and if not they're timely submitted, then don't even bother trying to survive summary judgment. 

But let me throw out a hypothetical:  What if Bevolo's lawyer had timely submitted the expert report; offered depo testimony at trial, from not only the medical expert, but from a martial arts expert (likely a "no-touch" expert), and the case went to trial in front of jury in say, Marin County.  Do you (a) think he might have had a chance at prevailing at trial; and (b) if appealed either way, how do think the 9th Circuit would have reviewed the lower court's decision?

Personally, I think it's a good thing that Bevolo fell on procedural errors (and you're right; that lawyer's MP premiums could go up pretty soon) and not so much on the merits.  But I kinda cringe at the idea of a jury of parents whose kids take Karate down at the Soccer Mom Dojo.  If there was ever a "no-touch" case to be made, that kind of a jury might just do it.   And with a 9th Circuit that's not always business-friendly ... it could have been a different outcome.

Anyway, just a hypothetical.  Thanks for your post.

[Vala Au]

Has anybody had an insurance company that has actually had or paid out any claims?  I'm curious because a few years back I was teaching for a city rec center and had to have my own insurance.  During some drills one of the students got kicked in the hand between the fingers.  It split his hand from the knuckle almost to the wrist.  Wasn't pretty. (Thanks alot Sigung Samala, you're getting famous for breaking my students hands with your round kick) The student went to the city for the medical bills.  The city went to my insurer, one of those cheesy ones in the magazine, who subsequently dropped me after that.

So my question is, does anybody know of a solid company, who we're not just buying a piece of paper for $450.00
a year from?

[Sigung_Pat]

A case in Marin County would be a California state Superior court case.  A 9th circuit appeal would be an appeal from a federal court case.  Different court systems.  But I understand the question. 

What would any jury do?  The judge would instruct them to follow the law.  The law in California is "primary assumption of the risk."   If the jury found that the activity fell within that legal principle, the jury would find for defendant.  If, on the other hand, the jury found that the defendant was deliberately trying to hurt the plaintiff -- that is,  outside the course of demonstrating a technique -- different story.  Sometimes a jury doesn't follow the law.  In a clear case where that doesn't happen, a party may ask for a court judgment notwithstanding the jury's verdict.  The judge can find differently from the jury under the right circumstances.  And of course, an appeal can always follow.  But an appeal is generally not based on the facts.  It is based on a legal error that allegedly occurred in the case. 

As far as what a Marin County jury might do?  Who knows?  Who can predict what any jury will do?  That's the problem with juries.  There's a whole science on how to pick juries. 

And where there is an expert on one side, you can find an expert to testify for the other side just as convincingly.  It's called "battle of the experts." 

And regardless of how it made it to the court of appeals, I think the end result would have been the same here in California.  Ask my kids -- I'm a bit obsessive-compulsive when it comes to legal research.  LOL.  I read every California case I can find on this topic.   

I think, though, that if you establish up front what your school and practice is about, a parent can decide whether to go to a no-touch school or a hands-on school.  Both you and the parent are happy(ier) that way. 

Kind Regards to All

P.S.  I think the Bevolo case fell on both procedure AND merits. 

[Gints Klimanis]

Here's an interesting program on the culture of liability, spurned by the recent and most unfortunate drowning of an epileptic child at a public "wave" pool.


http://www.kqed.org/.stream/anon/radio/forum/2007/07/2007-07-20a-forum.mp3

Fri, Jul 20, 2007 -- 9:00 AM
Public Liability
 Listen (RealMedia stream)
 Download (MP3)
(Windows: right-click and choose "Save Target As." Mac: hold Ctrl, click link, and choose "Save As.")

 
The show discusses a recent Supreme Court ruling on liability and what it means for public and private recreation programs and facilities.
Host: Dave Iverson
Guests:
 Dr. Yan Chin, physician with the On-Call-Medical Group
 Elaine Alquist, state senator representing Silicon Valley, the 13th Senate District
 Steve Sugarman, Agnes Roddy Robb professor of Law at UC Berkeley's Boalt Hall School of Law
 Steven Wiley, city attorney for the City of Santa Barbara

[thoughtbombing]

Sorry to bump a dead thread, but I read this here on the initial link:

14Bevolo’s own deposition testimony shows he had a complete understanding of the situation as well as his role as a willing participant. Therefore, the district court was correct to conclude the contact sports exception to negligence applied to this situation, and Carter could only be liable for Bevolo’s injuries if Carter’s behavior amounted to wilful and wanton misconduct.

Anyone here want to take bets on whether or not the 8th Degree blackbelt knew that the moves he was demonstrating were potentially lethal? How about more so than the Orange belt, at least?

I sorta expect my instructor to not crush my windpipe or my neck while showing me a move, even at full speed. Especially when it's moving something with my mind. That said, I don't think it was intentional. It doesn't NEED to be intentional for him to be liable for the Injury he caused. If that kid files on time, it would have been all the way to the bank for him. Frankly, I think it would have been nice to cover his medical expenses, which dudes insurance should do anyway.

I wonder what the pics look like... a nice slide show of a smiling boy with his new Orange belt... his mom smiling... his dad smiling... the Master smiling... the kid on the ground paralyzed...

Glad the kid lived and glad the other guy didn't lose his house and car and all that for an accident.

R. Drees
New London, CT