Legal Case - Test your legal knowledge
This is coming out of a thread in the forums that some might find interesting. You might also have fun answering this one or speculating on this one. The answers will change depending on legal jurisdiction but the principles used in the decisions will be the same in all common law jurisdictions and the same principles in all civil code jurisdictions. The only correct answer is the one you can justify using those principles.
This case is converted to an Aikido situation from one for which I had to write a decision in a Tort class about 23 years ago. The original true case was in a sport fitness chain in a common law jurisdiction.
You grade a student to second degree on your responsibility as a Shidoin. The Nidan student has their own dojo in another city. After the grading, the Nidan goes and teaches a variant of Kokyu Nage which could be a little dangerous for anyone who does not know know Ukemi. The Nidan learned this technique at a seminar you gave and it you even allowed the Nidan to use it during his/her grading.
The Nidan did show the Kokyu Nage to his/her students back home and they learned to do it quite well and it was safely practiced in his/her dojo for some time.
A couple years later, the Nidan is teaching class and shows this Kokyu Nage during class since it has become one of the dojo's favourite techniques since it is simple, elegant, causes nice soft but large Ukemi, and it is "flashy". A beginner student is in the class and is taking Ukemi for the Nidan instructor. Now, if the technique is done correctly, the result is generally safe for anyone but the beginner resisted strongly against the technique and when the Nidan overcame the resistance with more Kokyu, the beginner over-rotated and landed on the back of his head. With a loud snap, the neck was fractured. The beginner student ended up with a fractured spine that lead to bipedal paralysis, loss of job, and possibly even loss of family due to divorce caused by stress on the wife and kids.
A lawsuit is brought forward by the beginner. It has named you as one of the defendants. While the Nidan probably did learn the Kokyu Nage from you at that seminar years ago, you are not the only one who shows this Kokyu Nage. It is a standard technique within your Ryu.
These are the facts of the case. The question is, do you have any exposure in this lawsuit? If you do have exposure, what do you think may be the possible level of exposure? How many dollars?
Re: Legal Case - Test your legal knowledge
Basically, the plaintiff's lawyer is going to try to say that you taught this Nidan fellow a technique that is a dangerous technique and that you are negligent for teaching such a technique to someone over whom you have insufficient supervision to make sure that the Nidan is competent to teach the technique in question. Negligence is the basis for tying you, and even the organization into the law suit, I believe.
Unfortunately, the instructor in question is almost certainly hosed... I can't see any mitigating factors such as some irresponsible action on the part of the student. The instructor is expected top be able to control his technique.
The defense for any parties such as the teacher of the Nidan instructor or their organization, if named in the suit, is to demonstrate that the technique in question is a normal part of training in your style, that thousands of people (the more the better) do this technique all the time with no injury and that it isn't negligent at all to teach the technique because there is no reasonable expectation that an injury would occur.
Basically, the defense is to distance oneself from the instructor, claim that his execution of said technique on a beginning student was irresponsible and therefore negligent.
This of course poses an ethical dilemma... To the extent that you support your student and stand behind your ranking of his competency to teach, you are also putting yourself in the chain of responsibility. If you maintain that he acted irresponsibly, you are then calling into question whether your promotion of this person was negligent... the question being why did you and / or your organization allow an irresponsible person to teach?
The only way I see that you keep yourself completely out of the chain is to maintain that the Nidan in this instance acted negligently but that you had no reason, based on past history, to have seen any previous pattern of behavior that would have caused concern. You better hope that there aren't other injuries that the plaintiff's lawyers can come up with that they could maintain indicated a pattern of negligent behavior. Because then, you as his teacher and the organization which provides the authority for the ranking could be considered negligent if you failed to notice this pattern and act on it.
So the only way to escape the chain of responsibility here is to hang the Nidan out to dry. In my opinion, considering the severity of the injury, the Nidan is going to pay (hopefully he has insurance), you are going to pay, and the organization may well have to pay. That would certainly be the goal of the plaintiff's lawyers. I would expect the insurance companies to settle out of court for some figure in the millions. No way they'd go to trial over this one unless you willing to go along with the total destruction of the Nidan involved.
Of course I am not a lawyer but I have had some training in this area via my law enforcement training. Cops run into this all the time. When they get sued for excessive force, the number one way the plaintiff's lawyers can tie the department into the suit is by negligence due to failure to train. If they have done training, then they will try to say the training was inadequate or that the techniques used were excessive. Normally, on a big law suit, the department will attempt to hang the officer out to dry by saying that he violated policy and was therefore only individually negligent. Then the plaintiff's lawyers go looking for the previous pattern's of negligent behavior that should have shown that the officer was a loose cannon and therefore the department was in fact negligent by allowing him to be in the street doing his job.
The big bucks come from tying the department into the law suit so that's the game. The poor officer is in the middle... no one much cares about him.
Re: Legal Case - Test your legal knowledge
Are you saying that if I teach a technique and someone hurts someone else using it later, then I am responsible? That sounds ridiculous, to me anyway.
Surely, in this case the injured party should only claim against the guy that injured him. Does a victim of crime sue someone that taught the killer how to shoot in the gun club? Where would it end?
I bet the Nidan had no money so they were going after someone else - the org.
These days who can tell what would happen? In the UK news recently a man wrongly imprisoned and given a large amount of compensation was then given a bill for rent - for being in prison! You could not make it up! What I mean is, the law can be an illogical ass when it wants to be.
Re: Legal Case - Test your legal knowledge
As the trainer, you are small fry in a law suit. The lawyers want to tie in the actions of the officer with negligence on the part of the department. The trainer is just in the middle. In a dojo it would be a bit different depending on how you structured the business. Many dojos are sole proprietors. In that case you are personally in the loop. If you have teachers doing classes for you, you could find yourself in a lawsuit based on something they taught, since you could be considered negligent for not properly supervising your instructors. If you didn't supervise them you are liable because you were negligent by not doing so. If you did supervise them, in other words, you set up the curriculum (or your organization did), you and your organization could easily be liable if something you taught in class was used to injure someone.
If you are teaching a technique which is inherently dangerous, even in the dojo where people are trained to take ukemi, then that technique is probably a high level force technique, perhaps even deadly force, if used on a non-training subject. So if one of your students goes out to a bar and whips that technique on a subject when the circumstance did not fully justify that level of force, you could easily be in the law suit as having taught something inherently dangerous and failed to properly explain the risks involved and what level of force that particular technique represents.
If you can't honestly say that your students could place each technique in your curriculum in its proper place on a continuum of force, or, more likely, your students don't even know what a continuum of force is, than you could expect to be included in any excessive force law suit naming your student if they hurt someone using one of the techniques you taught.
The only real protection for most of us is that we simply do not have much money. Litigators are looking for the big bucks usually, unless you have a local ambulance chaser, in which case he will be looking for an out of court settlement. Here in the Seattle area, a department will ordinarily settle automatically for anything 40 thousand or less. I had a friend who had his climbing school go out of business after a kid, disobeying instructions, unclipped from his protection and fell off a boulder and broke his arm. My friend's insurance company paid out damages and then raised his rates so high he closed the school. All this even though it was clearly the kid's own fault. It didn't matter.
The good news is, it is highly unlikely that any of our students will ever use a technique we taught for self defense. If they did. it would probably be justified, in which case there is no liability. But we are definitely potentially in the chain of responsibility if a student misuses something he's taught or it even appears that he might have. If your are sued, you are screwed even if the plaintiff isn't justified.
|All times are GMT -6. The time now is 10:33 PM.|
Powered by: vBulletin
Copyright ©2000 - 2014, Jelsoft Enterprises Ltd.