by Geoffrey Sasso
A student of the martial arts has two roles in life. First, he is a martial artist in the outside world. This is a world filled with individuals, most of which have no martial arts training. Secondly, when performing his art, he is a student in a martial arts dojo. The law governs both of these areas. In this paper I plan to examine what laws apply depending upon which setting the martial artist finds himself. The first topic to be examined is what laws apply in the dojo during martial arts instruction.
A martial arts class offers many opportunities for individuals to suffer injuries. In these situations it is easy for a sensei or fellow student to suffer the consequences of liability if the law is not known. The key concept to remember in the legal practice of martial arts is "consent." This is why nearly all dojos and other sports clubs require permission forms before engaging in activities. The general rule is that one is not liable for damages inflicted upon another for an act to which the victim consented. For example, if a tori throws an uke and the uke accidentally breaks his wrist, the uke cannot recover if he consented to the throw. Conversely, if an upper belt decides to viciously strike a student when that student's back is turned, he or she is liable since the victim likely did not consent to that attack.
Many jurisdictions have narrowed this idea of consent to say that all martial artists consent to any martial arts related activity simply by being present in a dojo. This is called "assumption of the risk." This would allow injured students to recover only for injuries inflicted in a dojo through actions not normally a part of a martial arts class. For example, if one student spills water, which causes another person to slip and be injured, courts will likely find that the victim did not consent to this injury in the same way that he or she would have consented to an injury from a koshi nage.
The comprehensive book The Law and Martial Arts lists the four areas in which dojo injuries fall under. They are; sparring injuries, mutual combat injuries, instructor negligence injuries, and discipline injuries. Each of these areas and their respective applicable laws will be explained.
Sparring injuries occur when two individuals engage in a practice session. Here, if an injury occurs, courts ask if the person injured "fully appreciated the risks inherent in the competition." If a brown belt asks a white belt to randori on his first class, courts are more likely to find liability than if two brown belts engaged in this activity. The white belt may have assumed the risk of attending class, however he did not fully appreciate the consequences of this particular activity.
The second area, mutual combat, is much more complex. The general rule is that two individuals engaging in mutual combat are both liable for injuries that they inflict upon one another. Courts have relaxed this rule, in the dojo setting, in order to prevent the plethora of potential lawsuits arising from martial arts tournaments. However, this rule changes when the conduct is not in a martial arts setting. As seen in the case of Shay v. Thompson, 59 Wis. 540 (1884), illegal mutual combat between strangers is often labeled the fault of the aggressor. This area of the law is not absolute and often contradicts itself. The rule adopted by the courts depends entirely on the facts of the situation.
Negligence of the instructor is the third area. When a student is injured during a martial arts class, he may often seek to have his instructor held liable. Take for instance the case of Klocek v. YMCA of Metro Milwaukee, 48 Wis2d 43 (1970), which involved a new student suing his instructor for being injured while receiving an osoto gari. Here the court, in determining the fitness of the instructor, examined (1) the rank of the instructor, (2) the ability of the instructor to teach the technique which caused the plaintiff's injuries and (3) and the traditional factors of negligence. These are the general factors a court applies when examining if a particular injury is the fault of the instructor. The court in this case found that the instructor (a Shodan) was qualified to teach this particular technique and found any injury to be covered under an assumption of the risk accepted by the student upon entering the dojo.
Injuries received as a result of discipline within the dojo are the final area under which a martial arts injury can be classified. In this area, courts are less likely to find liability. Here the issue of consent comes into play very strongly. If an injury occurs as a result of disciplining, courts will ask whether the victim willingly put himself in a position to be injured. If the individual consented to the act then there can be no liability. This type of physically discipline is strictly limited temporally. Take the case of Story v. Martin La.App., 217 So.2d 758 (1969), for instance. In this case an instructor struck a student after class hours to discipline him. Despite the fact that the student had previously consented to this type of conduct, it was not allowed due to it taking place outside of the time limits of class.
The second aspect of martial arts law to be examined by this paper is how the use of martial arts is viewed by courts outside of the dojo. Martial arts, when taught properly and for the right reasons, is the art of self-defense. Therefore, the law governing self-defense governs the proper use of martial arts. In the American legal system, self-defense is a heavily debated topic. When is it appropriate? How much is too much? When does self-defense cross the line and become an attack? Martial artists, when faced with the opportunity to use their art for its true purpose of defending themselves, should know the answers to these questions. Martial artists have the unique knowledge that allows them to quickly and competently defend themselves when under attack. Because of this unique knowledge they can, if they so desire, end an attack quickly with little to no harm or, in the alternative, cause serious injury or death. Because of this great skill possessed by several members of society, a fine line has been drawn by the courts that govern the use of self-defense so as to lessen to the possibility of unnecessary injury. In this section of the paper I plan to analyze how a student of the martial arts is viewed by the courts, what levels of force are applicable in what types of situations and give real world examples of this law in action. In addition, this paper will also explain which areas of the law self-defense arises under. This latter will be addressed first so as to give a more adequate background
As mentioned above, one of the main intentions of the martial arts is to educate its students in the proper and effective use of self-defense tactics. Martial artists will find themselves dealing with the law usually when their use of self-defense is being questioned. If a martial artist finds himself in conflict with the law (for a reason relating to his skills) it is oftentimes for a tort like Battery or Assault. Battery is a tort that arises when one individual intends to touch another person and does so knowing that this other person will be offended. A person can commit a battery by doing something so simple as spitting on an individual or something as serious as striking a person. Assault is what often precedes a battery. It is putting someone in fear of being battered, but does not actually involve touching. Clearly, defending oneself physically would fit into the descriptions of both of these torts. It is when self-defense is challenged as being used improperly that the law comes into play. When a martial artist defends his use of self-defense, he raises what is called an "affirmative defense." An affirmative defense is an individual's way of saying, "I did the illegal act that I am being charged with, but I had a legally justifiable reason to do so."
The key concept in determining the appropriate (if any) level of force and determining whether the attack was done maliciously or in self-defense is "proportionality." The level of force exerted in defense must be less than or equal to the potential harm to the intended victim. Therefore, if an attacker who is not armed holds up a person, he cannot, absent extreme circumstances, pull out a firearm and kill his attacker. Such action would most likely be viewed as being malicious and would go above and beyond that required to end the aggression. Many court opinions, when examining proportionality, allow just enough force to end the immediate threat and stop the potential of any immediate future harm.
If a person is attacked, that person's only goal should be to avoid being injured. When this threat stops, so should the defensive force. Thus, we see the basis of the old adage "Don't kick a man when he's down." If the attacker shows signs of resuming his assault then the defense can resume, but anything beyond that is vengeful and malicious and is likely to be viewed as such by the courts. The law does not recognize revenge as a legitimate use of force. Many martial arts recognize this belief and advocate it through teachings like the well-known particular Kung Fu adage stating, "Learn the ways to preserve rather than destroy. Avoid rather than check; check rather than hurt; hurt rather than maim, maim rather than kill; for all life is precious, nor can any be replaced."
A martial artist above all others is capable of seriously hurting or killing their assailant. Even if a martial artist does not intend to kill his attacker, he may take an action that happens to kill or seriously injure the person. For example, a koshi nage done properly to a student in class has little possibility to cause serious harm to the trained uki. However, a koshi nage done in, what the martial artist hopes, is simple self-defense could be deadly to an average untrained individual. A martial artist could accidentally cause greater harm than intended if he is not careful, thus running the risk of maiming or killing his attacker. By examining trends in the law, we see that force that is serious and deadly is limited in its use. The general rule is that deadly force is not allowed unless under extreme circumstances. Courts have labeled three major areas in which deadly force is acceptable.
The first area is sexual assault. A person who is the intended or actual victim of a sexual assault is allowed to use deadly force to prevent or halt the intended harm. The main reasoning behind this rule is that it is difficult for a person to find a proportional level of self-defense when one is being sexually assaulted. Thus, since this assault is so terrible to the victim and has no appropriate defense to match, deadly force will be allowed if the assault is extreme enough. Another reason for sexual assault's allowance for deadly force is that it is most often done to women by men. Women, on average, are often smaller in stature than most men and thus have less of a chance of subduing their often-larger attackers with a lesser degree of force.
The second area in which deadly force is proper is when there is a threat of deadly force directed to the victim himself. Clearly, if a person is being threatened with deadly force, deadly force as a defense would be proportional to the attack. Many of the more liberal legal theorists argue that deadly force as a defense merely trades one death for another. However, courts justify their rulings by stating that deadly force as a defense is the lesser of two evils. In a situation involving an individual attacking a trained martial artist with intent to kill will result in someone's death. Seeing as how the victim presents a smaller possibility of recommitting his actions and is less of a societal menace, then his deadly force is a lesser evil than that of the predatory attacker.
The third area recognized by courts is when there is a risk of serious bodily injury to the victim. This area is often merged with the area of the threat of deadly force. The reason being is that it is often difficult to ascertain which outcome will occur when being attacked. For example, a knife-wielding attacker is just as likely to kill his victim as he is to seriously wound him with the weapon. Serious bodily injury is classified as being an injury that severely hampers the quality of life that the victim currently enjoys. Thus, a victim who is threatened with the injury of having his legs cut off is being threatened with a serious bodily injury. Courts have deemed it acceptable for a victim to use deadly force in this situation rather than suffer the severe pain and potential death that may result from an attack intending to cause serious bodily harm.
Naturally the reverse of these three areas is also true when dealing with a martial artist. If an average person is being or feels that they are about to be attacked by a martial artist, then the level of applicable force that they may use in self-defense is higher than if they were defending against a regular individual. Courts could view an empty handed martial artist as being in possession of a weapon. Therefore, if another martial artist attacks a regular person or even a second martial artist, the level of applicable proportional force will be higher.
The area of self-defense is twofold. Primarily there is self-defense by justification. This of course is justified self-defense and is governed by proportionality. The victim exercises self-defense and his actions were justified due to the circumstances of the attack. In addition, there is also self-defense by excuse. This second aspect of self-defense, by excuse, is contingent on what the victim reasonably believes as opposed to what is actually occurring. For example, a person uses self-defense because he reasonably believes that he or she is being threatened with harm. Whether or not the person is actually in danger of suffering the anticipated injury is not as important as what the victim "reasonably" believes. Take for instance the holding in the case of, Young v. People, 47 Colo. 352, 107 P. 274, which stated:
"When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed, or of receiving great bodily harm, is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real or actual danger."
Just as the key concept in determining the applicable level of force is "proportionality", the key concept in this area of the law is "reasonableness." A person need reasonably believe that it is more than likely s/he will suffer the specific harm feared. Even if mistaken, if the court finds that the belief on the part of the person exercising self-defense (in our current situation this would be an exercise of martial arts techniques) is reasonable due to the circumstances, then the self-defense will be legitimate. Therefore, a situation involving a lone woman being confronted by several belligerent men has more credibility to lend to the reasonable belief of death/rape/bodily harm than a situation involving an unarmed man simply approaching a victim.
In determining whether the self-defense was through justification, excuse or not justified at all, courts have two current schools of thought. The minority view is that a court must employ a subjective analysis. The subjective analysis looks at the situation from what the person exercising the self-defense knows and has experienced. For example, the case of The State v. Leidholm, 334 N.W.2d 811 (1983), a wife killed her abusive husband. The husband had done nothing to harm her at the time. He simply had a look on his face that she came to know as threatening. The court viewed her actions in light of her living 25 years with abuse and knowing her husband's personality and found she acted in proper self-defense. Conversely, the majority opinion is to view the defender's actions in an objective light and consider no extraneous factors aside from those present at the time force was applied. Therefore, under this analysis the defendant in Leidholm would not have been acquitted due to her not having been threatened or injured as of the time of self-defense. A martial artist should be aware of these two views and know the applicable school of thought for his home state in the event that his skills are required to defend his person.
Although the term "self-defense" seems to apply to defending one's own body, a person can also use reasonable force in defense of another individual. The law is much the same for the defense of third parties as it is for defending oneself. If A sees B attacking C, then A, to defend C, may use whatever force would be proportional if A were in C's place. No new rules apply.
When confronted with a party that is a martial arts student, a court will often factor this into their analysis of the situation. Martial artists are viewed as being in possession of extra knowledge. Most frequently, a court examines this extra knowledge when determining proportionality. First, let us say that a man attacks another man in an alley. The man under attack manages to disable his attacker and physically harms him as a result. The court will consider several factors in determining whether the force was proportional. These include, but are not limited to; the respective parties’ physical sizes, whether one party is a female, whether one party is intoxicated, armed, known to be a societal menace, handicapped, belligerent, etc. Thus, if a man attacks a woman, and the woman harms the man severely, a court may not look upon her actions as harshly as they would if she were a man in the same situation due to the average women so often being in possession of a smaller stature than the average man.
Among the aforementioned factors is the degree of the standard of care owed to the attacker by the victim. Every person in the world owes every other person a certain standard of care that differs depending both on the parties' relationship and their knowledge. For example, two strangers have a different standard of care to one another than a doctor has to his or her patient. Strangers owe one another a duty simply to refrain from wanton conduct. However, a doctor, seeing as how he has a connection to his patient that relates to his special skills has a higher standard of care. Therefore, he has a greater responsibility for smaller accidents than he would without this relationship. If either party is a martial artist then the courts may examine their actions in light of this standard of care. Take this hypothetical for example:
A brown belt level ju-jitsu student foolishly walks alone down an unlit city street very early in the morning before the sun has risen. Unfortunately, the young man is attacked by gun-wielding aggressor who thinks he has found an easy target to rob. The attacker places his gun to the victim's temple while standing behind him and demanding his wallet. The victim, not wanting to relinquish his money so easily, decides to use a disarm technique taught to him in class. The technique involves spinning one's body and grabbing the gun in a such a manner so as to trap the attacker's finger on the trigger while the barrel of the gun is pointed towards its owner. The student begins his technique and successfully completes it. The student fails to foresee that the attacker will panic and attempt to free himself from the gun now pressing painfully into his index finger. The gun accidentally goes off and kills the attacker.
Now, take the same hypothetical and change two facts. Make the victim an average man with no martial arts knowledge and change the disarm technique into just a random flailing attempt at self-defense. In both instances an accidental death still results. Were you a judge faced with these two situations, would you be tempted to view them differently? Courts most likely would view the two defendants differently due to their differing skills in self-defense. The martial artist, had he desired to, would be more adept in killing his attacker. Courts recognize this and, while certainly not always amounting to a verdict of guilty, do consider it as a special skill warranting a higher duty on the part of the martial artist to exercise care.
Take an outside example for better clarification. Let us say that a person on an airplane begins to choke and a person on that plane attempts to save him. After attempting to perform the Heimlich maneuver unsuccessfully, the unfortunate person dies. If the family of the deceased attempts, for some reason, to take legal action against the would-be rescuer, his status will come into play. If the rescuer is a normal person, he will possess only a rudimentary level of medical knowledge and a court will recognize this and would be more likely to view the death as an unfortunate accident. However, if the rescuer is a physician, he possesses a level of knowledge beyond that of an average individual. Courts see this and may potentially find that he used his abilities improperly and caused unnecessary harm. The physician may very well have made a good faith effort, however the point is that his extra knowledge will be factored into the court's analysis. Likewise, if a person defending himself breaks his attacker's arm as a result of self-defense, the court will look at this defense differently if the person is a student of the martial arts. He or she will have more knowledge as to how to harm a person effectively. If it is found that he acted negligently in light of his skills then the courts will find him liable.
This paper is by no means an exhaustive source on all laws applicable to every aspect of the study of martial arts. It is a good starting point and attempts to cover many of the core ideas and general rules. Through this examination of how the law treats martial artists, we are left with two major concepts. First, the area of self-defense is multifaceted. However, the most important concepts in this huge area of the law are "consent" and "proportionality." Consent is important for any practitioner to understand so that they can engage in the art safely and respectfully. The concept of proportionality governs when and what level of force is appropriate and applicable. Secondly, it is also important to remember that having the privilege of being in possession of martial arts skills places a burden on both the student and the sensei to exercise greater care than the average individual in their situations. The law governing martial arts is massive and it is extremely difficult to keep oneself apprised of all rules and trends. However, complete knowledge of the law is no replacement for a little bit of prudence and respect when dealing with the study of martial arts. Any martial arts student who becomes aware of how the law affects him or her comes to realize why his or her art so often stresses the importance of discipline, control and responsibility.
"The above information does not constitute legal advice nor does it establish any type of attorney client relationship. It serves merely as a general analysis of trends and theories regarding the law in a variety of states. Individual readers are encouraged to meet with an attorney to discuss the specific law and their rights thereunder in precaution of or in response to any and all incidents or should they have further questions."
· Brown, Carl, The Law and Martial Arts. Ohara Publications. Santa Clarita, CA. 1998
· Kaplan, John, Robert Weisberg and Guyora Binder, Criminal Law: Cases and Materials. Fourth Edition. Aspen Publishers. New York, NY. 2000
· Dobbs, Dan B. and Paul T. Hayden, Torts and Compensation: Personal Accountability and Social Responsibility for Injury. Fourth Edition. WEST Group. St. Paul, MN. 2001
· Federal Rules of Civil Procedure: Abridged Edition. As Amended to May 23, 2003. WEST Group. 2003
Mr. Sasso is licensed to practice law in Pennsylvania and New Jersey and is admitted to appear before the United States District Court for the District of New Jersey. He is a member of the American Bar Association, the Pennsylvania Bar Association, the New Jersey State Bar Association and the Mercer County Bar Association.
We thank Mr. Sasso for allowing his paper to be shared with our members