ASSUMED RISKS

 by Phillip Starr

When anyone undertakes training in a martial art, there's an assumed risk that they will likely suffer minor injuries from time to time; strawberries, bruises, even a split lip or a bloody nose just come with the territory. You'd think everyone would understand and accept that, but such is not always the case. Maybe I'm a little slow, but I just don't understand that attitude.

If and when you go out for football or any other vigorous sport, you do so with the understanding that you're going to get scuffed up sometimes. It's the same thing when you allow your child to engage in any such activity. And yet, many of those who agree that some injuries are just part and parcel of various sports become really upset when they or their child gets a bloody lip in the training hall. They don't seem to consider that what we practice is a martial art; a form of hand-to-hand combat! Unlike baseball, it's not a game. It's training for life and death situations...and they seem to think that it should pose no more of a risk than quilting?!

Of course, responsible instructors do their best to reduce the chances of injuries in the training hall. But they still occur. I know instructors who are very overly-concerned with lawsuits being filed against them if and when someone is injured. I think they fail to understand the nature of “assumed risk.”

Assumption of risk is a defense in the law of torts, which bars or reduces a plaintiff's right to recovery against a negligent tort feasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks inherent to the (dangerous) activity in which he was participating at the time of his or her injury.

What is usually meant by assumption of risk is more precisely termed primary or "express" assumption of risk. It occurs when the plaintiff has either expressly or implicitly relieved the defendant of the duty to mitigate or relieve the risk causing the injury from which the cause of action arises. It operates as a complete bar to liability on the theory that upon assumption of the risk, there is no longer a duty of care running from the defendant to the plaintiff; without a duty owed by the defendant, there can be no negligence on his part. However, primary assumption of risk is not a blanket exemption from liability for the operators of a dangerous activity. The specific risk causing the injury must have been known to, and appreciated by, the plaintiff in order for primary assumption of risk to apply. Also, assumption of risk does not absolve a defendant of liability for reckless conduct.

This defense is commonly asserted in cases of injuries occurring during risky recreational activities, such as skiing, paragliding, and scuba diving, but actually extends to all hazardous activities.

When I had my own martial arts school, I ensured that every new student understood that they could expect their fair share of minor scuffs. They never complained. Training was very rigorous but not foolhardy and in over 50 years of teaching, none of my students ever suffered a serious injury.