Monday, August 23, 2010

Dealing With Lawsuits

Every now and then I'll go down to train at a local school. This place does some cross training in other styles in addition to karate which I think gives this club a fresh perspective from a traditional dojo. I know one of the owners, he never charges me, so I don't wear out the welcome. I must confess though, one reason I like to drop in is to see what kind of clientele shows up. I don't know what it is, but this particular venue seems to be a magnet for some strange types now and then.

About three weeks ago some guy comes in who claims he's trained in every style from kenpo to praying mantis, but could never stay in one place too long because "nobody can handle me in sparring." He decried the belt system (need I say he's never acquired a single black belt in the myriad of styles he's allegedly taken?), kept calling me 'kid' (this guy looks like he's about forty), and seemed eager to display some of his kumite skills.

There were about ten of us there that night, mostly black belts, but my friend wisely decides to pair Jean-Claude up with "Joe", a likable seventeen-year-old brown belt who plays high school football and is built like a tree trunk. About ten seconds into the match, Joe lands a crushing reverse punch to the fighting master's ample breadbasket that folds him like an accordion in advance of a full collapse to the mat. Eventually he regained his breath and composure, at which point our visitor decides to sit out the remainder of the class while interjecting "advice" here and there. After he left we all had a good laugh and thought we would never see this character again. Then two days ago, the chief instructor of the aforementioned school receives a disturbing piece of mail. It seems the visiting warrior decides he'll try to cash in on his impromptu sparring defeat and lawyers up. That's right, he's suing for getting his butt properly and appropriately beat at the hands of a teenager.

Now mind you, this person didn't sustain the kind of injury that would prevent him from having kids or even going to work. I have no idea what kind of language is in this lawsuit or what it claims. One theory I have is that this guy has his attorney on speed dial and makes a career out of this. No wonder he's trained everywhere.

This isn't the first time I've experienced this sort of thing. About two years ago I received an email from someone who found my blog:

Dear Mr. Vesia,

I am an attorney defending a local (popular karate chain school) in ... against a claim by a woman who was injured during her first training session while doing a round kick. I am in need of someone well trained in karate to serve as an expert witness and render an opinion as to whether the dojo was negligent in its instruction techniques, preferably someone who has had experience as an instructor. Would you be interested in discussing this case with me? If so, please call me at the number listed below. Thank you for your time.

I declined, but it left me wondering how often this happens to schools. Injuries are par for the course in martial arts training, despite the presence and supervision of competent instructors. Not in the US, but in some countries if the plaintiff's lawsuit is unsuccessful, they must pony up at least part of the defendant's trial fees. Do you think if we had this law here, people would still be so sue-happy?

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Blogger Charles James said...

Hi, John:

You said, " … to pair Jean-Claude up with "Joe", a likable seventeen-year-old brown belt who plays high school football and is built like a tree trunk."

You dog you, I would never put anyone visiting up against a "hungry" and "young" BROWN BELT. I remember that the most aggressive practitioners were always the brown belts with emphasis on the Ik-kyu. Don't ask me why but maybe the get this hunger because they are right there on the precipice, the coveted "black belt."

This posting is great because it does show that if one is not completely and utterly aware of all aspects of provision of FMA training they can be "sued." I have an acquaintance who runs an Isshinryu dojo out of a local place. He rents the space two nights a week but he does not have a business license, nor insurance ether medical of for this type of protection, litigation's of malpractice, etc.

I did train with them for a small time and am glad I stopped. I, being the senior practitioner, could have been dragged into court simply because the complainant could have said he would have not been hurt, etc. if I had done something after all I was the senior guy there and did nothing. Didn't want that kind of financial responsibility/headache.

Great post, hope it wakes up some dojo who are gliding by with no "insurance."

10:24 AM  
Anonymous Jason Couch said...

John, I believe the policy concern is that shifting to a "loser pays" system is that it could have a chilling effect for common person plaintiffs.

The jury system is always a roll of the dice and even if you feel you are morally and legally 100% correct, the knowledge that ABC Corporation may present legal fees in the hundreds of thosuands or millions of dollars would give anyone pause.

As it is now, sanctions may be ordered in the case of frivolous lawsuits, but that rarely happens.

11:15 AM  
Blogger Budd said...

most places will have you sign a waiver. While not complete protection, it does give forewarning of very possible injury.

11:58 AM  
Anonymous Phil said...

Yes, If you run a school you should have insurance. The insurance company will require that you have a Sparring Rules sheet that all students must sign and it should outline what equipment is required and what type of contact is permitted. Additionally you should have a warning/waiver for students to sign. If your school doesn't have this, then think about getting it. It doesn't absolve you of all responsibility, but does act as a warning to students as to the responsibility that they bear when participating in the school's activities.

Lastly I would say that it was a mistake to put the guy into a sparring situation. I would have had him working on something else for the first month or so, perhaps until his first belt. I would want to get to know him first and given him and the other students time to befriend one another.

12:44 PM  
Blogger Charles James said...

Hi, John and Budd:

Very real and I have a pdf of such a statement of understanding.

It is incredible how many don't even try to use such a simple document.

It doesn't get you out of trouble but it does help a lot.


12:50 PM  
Blogger Frank said...

I hope "Jean-Claude" gets laughed out of court. There are laws in most places, against "vexatious lawsuits." If the dojo can prove that it didn't do anything out of the ordinary, and if the Bozo can't produce any kind of medical report, then the dojo should be free and clear. Still, it's a stupid and annoying situation.

7:20 AM  
Anonymous Black Belt Mama said...

It's not just the lawyers; it's the insurance companies too. After I hurt myself, my insurance company sent me some kind of form they wanted me to fill out stating where I had been injured. I never returned it and my answers to their questions when they called were yes and no responses. I could see where they were going and I didn't like it one bit.

2:05 PM  
Anonymous Denman said...

Studies have shown that less than 5% of all lawsuits are resolved at trial. The only way to collect attorney's fees incurred in defending or pursuing a lawsuit is to go to trial. Thus, making the loser pay the other party's fees has a theoretical chilling effect on filing suit, but not really in practice. Additionally, most settlements are negotiated with the fees and expenses incurred to date in mind.

Depending on your state, most liability waivers may be unenforceable. There are other ways to protect oneself, but liability insurance is the best avenue.

Lastly, a lot of my friends and acquaintances used to ask, "Can I sue for _____________?" The easy answer is yes, but the real question is can I ultimately recover for ___________________. Anyone can sue for anything.

4:58 AM  

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