Legal issues in MA instruction

[Crafty_Dog]

This from Canada:


http://www.theprovince.com/sports/Parents+waive+child+right+negligence+Judgm
ent/2091198/story.html

Parents can't waive child's right to sue for negligence: Judgment

 

By Katie Mercer, The ProvinceOctober 9, 2009

 

Parents have no right to waive their children's right to sue, according to a
B.C. Supreme Court decision this week.

Victor Wong was 12 years old when his mother signed a liability waiver to
enroll him in a Hapkido school, a Korean martial art.

Wong was 16 when he was allegedly violently thrown to the ground during a
sparring match. At 20, he still suffers from his injuries.

Wong is suing Michael Lok, the owner of Lok's Martial Arts Centre in
Richmond, and his sparring partner for negligence.

He argues that Lok failed to provide preventative measures to screen
participants, instruct them, require protective gear and supervise matches.

However, Lok argues that the claim should be dismissed as Wong's mother
signed a waiver protecting him from litigation.

B.C. Justice Peter Willcock disagreed, ruling that, under the Infants Act of
B.C., a parent can not waive their child's rights to sue for negligence.

"The Act does not permit a parent or guardian to bind an infant to an
agreement waiving the infant's right to bring an action in damages in tort,"
Willcock found in his decision.

The case is scheduled to proceed in November.

[CrazyCossack]

We talked about alot of this type of stuff in alot of my university classes and most ridiculous stuff like this gets thrown out.

Yes on one hand no one should be able to "sign away" your rights.... but on the other hand, common sense says this lawsuit is fucking retarded.

Usually common sense wins out in these types of cases. Usually.

[Crafty_Dog]

Forgive my candor, and said with love, but , , , don't be silly-- of course you should be able to sign away rights.  That's what contracts are!

If the BC Supreme Court is what its name implies  (and sometimes court names are not, e.g. in NY State) then this would seem to be a serious decision of consequence.  Amongst the consequences are either an end to children's martial arts classes and/or their castration into meaningless drivel for the sheeple.

Crafty Dog, esq.

[Dog Howie]

We talked about alot of this type of stuff in alot of my university classes and most ridiculous stuff like this gets thrown out.
Yes on one hand no one should be able to "sign away" your rights.... but on the other hand, common sense says this lawsuit is fucking retarded.
Usually common sense wins out in these types of cases. Usually.

I REALLY differ with your thoughts that "most ridiculous stuff like this gets thrown out." and that "Usually common sense wins....". What happen "most" of the time here in the U.S. is that is does NOT get thrown out but it DOES get "settled".  Liability insurance companies are more than willing to "settle" rather than litigate.... it's cheaper and attorneys know that. It is an embarassment to the "legit" legal professionals that are honorable. This stuff is the bane of small bsuiness existence. Two personal examples.... a former employee who knew his time was "at an end" at the end of the day, first thing in the morning had some "boxes" fall on him in our warehouse, he went to the emergency room and had no injuries, no brusies or contusions, they didn't even prescribe him any ibuprophen. He then found a lawyer and sued my company for not being able to work and a big list of things including "loss of consortium: (he claimed his love making and relationship with his wife was harmed by this accident)... sued for many hundres of thousands of dollars and, unbelievably, was AWARDED $26K in an arbitration by a threesome of other attorneys... we could have litigated but it would have cost us at least $50K. BTW, after that experience I decided to NEVER "settle" any frivilous legal action like that ever again. Another example, this is great, my in laws ran a number of nursery schools a few years back. One had a playground with those wooden swing sets. A girls gets a splinter... nothing too deep...no stitches etc. The Kid's parents find a contingency lawyer to file an action and my in-law's insurance company pays $25K to settle the matter and drop the action... insurance company felt they got off cheap I have to assume.

This "stuff" does NOT get thrown out.... it should be.... but it doesn't.

=h

[Jonobos]

Forgive my ignorance, but I claim no special knowledge of the law. This seems like an issue of someone else signing away your rights, and not an issue of signing away your own rights. Isn't that the point of this? Someone else can't sign away your rights? I am not giving an opinion one way or the other, but I have no clue what your rights are as a minor as it applies to contractual obligations your parents make for you.

[Crafty_Dog]

My understanding is precisely that a minor's parents speak for it.    This case seems to me quite radical and quite unsound.  A Canadian martial arts instructor teaching children now must decide to either cease teaching children or castrate the training.

[CrazyCossack]

Forgive my candor, and said with love, but , , , don't be silly-- of course you should be able to sign away rights.  That's what contracts are!

If the BC Supreme Court is what its name implies  (and sometimes court names are not, e.g. in NY State) then this would seem to be a serious decision of consequence.  Amongst the consequences are either an end to children's martial arts classes and/or their castration into meaningless drivel for the sheeple.

Crafty Dog, esq.

Your exactly right, of course we should be able to sign away our rights.  But in my original post I said `no one should be able to sign away YOUR rights`

Now I don`t personally believe that but in the original post I was just saying I recognize both sides of the argument.  I just think that particular argument happens to be ridiculous.

I also agree that parents (until a certain age obviously) should have the right to sign away their kids rights.

As far as the B.C. Supreme Court goes, they are a provincial court, which is subject to its own appeals court, if the appeal goes through, the complainant can usually (there are certain cases where they aren`t allowed to continue)  take it to the supreme court of canada (federal) and they will make a decision. However the supreme court can only hear so many cases and it may not get chosen so the appeals court decision may stand.

I think the complainant in this case is fighting an uphill battle, I cant cite specific cases but I`m pretty sure precedent through case law exists with cases involving childrens rights and their parents wishes concerning alot of religous cases particularly when it comes to medicine (i.e. you can`t give my kid a lifesaving blood transfusion because its against my religion).

In the grand scheme of things I know the implications can be HUGE (if I`m on this board I appreciate what martial arts does for people) but I really dont think it will get that far.  I think the courts will realize that waivers are a major tool society uses and will uphold the long standing practice of parents being able to sign away their childs rights for most things.  Its not just martial arts that use waivers, rock climbing, soccer, football, baseball, etc.... but also school field trips, dog brothers training camps, waivers are everywhere and I don`t think they are going away because of one unfortunate accident.  After all, unfortunate accidents are the reason we have them in the same place.


Okay time to make a turkey (canadian thanksgiving).

[Jonobos]

My understanding is precisely that a minor's parents speak for it.    This case seems to me quite radical and quite unsound.  A Canadian martial arts instructor teaching children now must decide to either cease teaching children or castrate the training.

That is what I thought.

Are there any other details? Violently thrown to the ground? What does that mean? Can you be peacefully thrown to the ground? Was there broken glass on the floor, or a river of lava flowing through the gym? What sort of protective gear would save you from the type of injuries you get from being thrown? It could be a case of negligence, but there are not many details. From the little info there is I am tempted to agree with the sentiment that it is ridiculous. Even under the safest of conditions people can still get hurt. If you don't understand that, then you need to find another activity.

[Crafty_Dog]

The facts are not the point here.  The point here is that waivers signed by parents  against negligence are a nullity as a matter of law.

[Rarick]

The judge might have some issues with Martial Arts and violence and sees this as a way to pursue his own agenda on the down low?

[Crafty_Dog]

Judicial acitivism/imperialism?  No! It can't be!

[CrazyCossack]

Actually the trend lately has been judges (specifically the supreme court of canada) are becoming more and more involved in the law MAKING process.

Which by definition isn't really there job, we elect politicians to legislate bills and judges interpret and enforce these laws when issues arise and things aren't clear.

It's a really tricky situation as judges in canada aren't elected but appointed, by the prime minister (supreme court judges) and he's likely to pick judges who are partisan to his politics, then these judges are going about impacting what the laws are through their rulings.

The best example is gay marriage in Canada, it was deemed unconstitutional by the supreme court, as they decided it was in violation of the rights of homosexual people, and the law changed because of it.

IMO judges are supposed to be interpreters of the law, and to make decision based on what the laws ARE, not change laws, or impact them based on your decisions.

We elect people to put the laws the majority of us want in place, these appointed judges shouldnt be changing what our elected leaders have provided for us.

It's a two sided coin but I really feel this trend has got to stop and judges need to go back to making judgements based on the law that exists.

Hopefully, we won't see anyone pursuing an agenda and trying to change the laws of canada, hopefully the waiver is honored, the judgement is given in the way the law deems it should be, and the judge does his job.

On the other hand, he could be pro-martial arts? Who knows.

[Crafty_Dog]

A more thorough article on the BC Canada case:

Parents cannot waive a child's right to sue for injuries: B.C. court
By NEAL HALL
VANCOUVER SUN
October 16, 2009 4:02 PM

METRO VANCOUVER -- A parent cannot sign away a child's right to sue
for injuries caused by negligence, a judge has ruled in what is
believed to be a precedent-setting decision.

Victor Wong of Richmond, now a 20-year-old University of B.C. student,
sued Lok's Martial Arts Centre and owner Michael Lok.

Wong claimed he suffered injuries because of the negligence of the
defendants, including Ramin Asgare Nik, who violently threw Wong to
the ground in the course of a sparring match at a Hapkido school owned
and operated by Lok's.

Wong alleged the defendants were negligent "in failing to take
preventative measures to ensure that injuries did not occur in the
course of sparring matches by taking such measures as screening
participants, instructing participants, requiring suitable protective
gear or carefully supervising matches."

Lok and the martial arts centre went to court to have the lawsuit
dismissed, arguing that Wong's mother, Yen To, signed a release,
agreeing not to make legal claims for injuries when Wong first began
taking lessons in 2001, when he was 12.

The document, titled "Conditions of membership and release," said: "It
is expressly agreed that all exercises and treatments, and use of all
facilities shall be undertaken by the student's sole risk...YOU ARE
RESPONSIBLE FOR ALL INJURIES!"

B.C. Supreme Court Justice Peter Willcock concluded that while the
Infants Act was intended by the legislature to establish the sole
means of creating contractual obligations that bind minors, "the act
does not permit a parent or guardian to bind an infant to an agreement
waiving the infant's right to bring an action in damages in tort."

The judge dismissed the defendant's application to strike the lawsuit,
but has not ruled on whether the defendants were negligent. That
matter now is set to proceed to trial on Nov. 23.

"It appears to be precedent-setting in B.C.," Wong's lawyer, Bonnie
Lepin, said Friday of the ruling. "It may well be the first [ruling of
its kind] in Canada."

She said the ruling will not affect parents signing waivers for their
children involved in sports or skiing who have accidental injuries.

The ruling, she added, only means a parent cannot sign away a child's
right to sue for injuries caused by negligence.

Lepin said her client suffered a fracture of his right arm, which
required surgery and left the young man partially disabled. His right
arm now becomes fatigued and cramped because of the injury, she said.

"He gets more time to write exams," Lepin explained about the UBC
student.

The full judgment is available online at:
http://www.courts.gov.bc.ca/jdb-txt/SC/09/13/2009BCSC1385.htm

[Rarick]

Okay, I see what they are doing-  The Instructor was Negligent.  Therefore the waiver does not apply.  Unless there was a serious weight/ age mismatch, how was the instructor negligent?  What Martial Art are we talking about?

You know for being "Professional" reporters, a lot of them leave out W's all over the place........

[Crafty_Dog]

Martial arts school sued
Nelson Bennett
Richmond News
October 21, 2009

A Richmond Hapkido instructor is appealing a recent court decision 
that cleared the way for a lawsuit that, if successful, could have 
implications for a wide range of youth sports and extracurricular 
activities.

Victor Wong, 20, is suing Lok's Martial Arts Centre for negligence 
stemming from a broken arm he received while a student at the dojang 
in 2006.

Wong was sparring with a fellow student, Ramin Asgare Nik, who is also 
named in the lawsuit.

A lawsuit against Lok's Hapkido school could have implications for 
other martial arts schools, like this judo club, where sparring 
carries a risk of injury.

Wong's statement of claim alleges 26 incidents of negligence, ranging 
from failing to screen students for emotional or psychological 
problems, to failing to ban Nik from sparring when he had demonstrated 
"previous signs of inappropriate aggression and behaviour."

Wong's lawyer, Bonnie Lepin, said her client does not want to talk to 
the media, but said his injury was severe enough that it continues to 
affect his ability to work.

"He has a permanent partial disability," she said.

Michael Lok, the martial art's school's owner, filed to have Wong's 
suit -- filed in 2006 -- dismissed, based on the fact Wong's mother 
signed a waiver indemnifying his dojang from any responsibility for 
any injury students might receive while practicing martial arts.

But Justice Peter Willcock recently dismissed that application based 
on the B.C. Infant's Act. Willcock's ruling doesn't mean Wong will 
necessarily win his civil suit -- only that it can go ahead.

The civil trial is set for Nov. 23, although that date could be 
adjourned, as Lok is appealing the recent court decision to the B.C. 
Court of Appeal.

The ruling underscores just how vulnerable to lawsuits anyone in B.C. 
who deals with children may be, thanks to the B.C. Infant's Act, which 
essentially means waivers signed by parents on behalf of their 
children have no force in law.

Hapkido is a Korean martial art that employs kicks, punches, throws 
and a range of arm and wrist locks, as well as weapons training. In 
addition to doing drills, students put their skills to the test 
through sparring matches.

By their very nature, martial arts involve a risk of injury, which is 
why Lok requires all students or their parents to sign waivers.

The school's conditions for membership states: "all exercises, 
treatments and use of facilities are taken at the student's sole 
risk," and concludes in capital letters: 'YOU ARE RESPONSIBLE FOR ALL 
INJURIES!'"

Wong's mother, Yen To, signed Wong and his two brothers up for Hapkido 
in 2001, when Victor Wong was 12 years old.

"Ms. To says she signed the Conditions of Membership and Release form 
but did not read it carefully or fully understand it," court documents 
state. "She knew if she did not sign it her sons would not be allowed 
to enrol in Hapkido classes. She says she had no intention of waiving 
her sons' rights to sue..."

Wong's lawsuit alleges the injury he received was not a result of 
ordinary martial arts training. The suit alleges Lok was negligent in 
allowing Nik, who was bigger and 25 years older, to spar with a 
student who was just 16.

Lok's lawyer, Michael Frost, argues that Wong was, in fact, the more 
advanced student.

"In fact, Mr. Wong had a higher belt than Mr. Nik," he said.

Wong'claims Nik became frustrated when Wong got the upper hand in a 
sparring match, grabbed him in a bear hug and threw him to the ground 
-- "a maneuver which was not in any way part of the recognized 
sparring match technique."

Lok's lawyer, Michael Frost, disputes that allegation, saying Wong fell.

"This was an accident," Frost said.

[Jonobos]

"Ms. To says she signed the Conditions of Membership and Release form 
but did not read it carefully or fully understand it," court documents 
state. "She knew if she did not sign it her sons would not be allowed 
to enrol in Hapkido classes. She says she had no intention of waiving 
her sons' rights to sue..."

This rubs me the wrong way. Why do people sign things that they don't read or understand?

[Dog Howie]

"Ms. To says she signed the Conditions of Membership and Release form 
but did not read it carefully or fully understand it," court documents 
state. "She knew if she did not sign it her sons would not be allowed 
to enrol in Hapkido classes. She says she had no intention of waiving 
her sons' rights to sue..."

This rubs me the wrong way. Why do people sign things that they don't read or understand?

This sounds worse then not reading or understanding... it sounds like she fully understood it but signed it never-the-less. And with that admission there is still a lawsit? THAT is very concerning. You mean I can lie by signing any agreement and then say I knew what I was signing but I didn't "really" agree to it so because of THAT it's not binding. I HOPE I'm missing something.

[Kaju Dog]

On a side note, a lesson a co-worker of mine from years ago learned the hard way. 

I you want someone to sign a document and choose to "highlite" or put an "X" next the place on the contract where you want them to sign, they are not legally binded to that contract. 

Think of when you go to buy a car and the finance manager or sales person has put an X or highlighted where they want you to sign.  Or as in this case my co-worker was in, he put an "X" next to the line that says "signature" on a automotive repair order, for the customer to know where to sign in order to "Authorize" additional repairs on her vehicle.  Her husband got upset with her and she argued that she didnt know what she was signing for and just signed the repair order where the advisor told her to sign.  It went to court and she won.  The judge told my co-worker that he had coaxed or led her to sign without reading the document.  He should have let her read the entire document and find "on her own" where to sign. 

Thats why these days you see the little pull off tabs next to where they want you to sign, then they remove the tabs right after you sign...   


I got my buddy out of a jam in San Diego with a shaddy car salesman because I knew this and he did not... 

You cannot direct the customer where to sign.  Let them find it by reading the contract on there own.

Just a little FYI side comment.

Woof,
KD

[Dog Howie]

You cannot direct the customer where to sign.  Let them find it by reading the contract on there own.

kd: tHIS IS A VERY NICE AND HANDY piece of information. Thanks for the liability instruction.

[Crafty_Dog]

A shy friend sidebars:
============================
some times advice is being given and taken as gospel, i.e.
"Thanks for the liability instruction" when if fact it may not be true.

While MA advice is subjective, as are political beliefs  the law
is much more straightforward.  Perhaps I am wrong, I am not
an attorney, however I have dealt with contracts on numerous
occasions.  The idea of an "X" marking the spot has nothing to do
with the validity of the contract to my knowledge.  To put them on yellow
stickums simply keeps the contract "clean", but the validity is not affected.
I hope others on this site do not rely on the legal opinion offered
by Kaju Dog  (no offense meant to him) and think they can void a
contract at whim simply because they were instructed to sign next to the "X".


a person about to sign a contract
is guilty of negligence in failing to ascertain the contents of
the paper, he is bound by his signature, even though he labors
under a mistake as to the nature of the transaction there ex-
pressed. It may therefore be laid down as a general rule
that, if a person able to read a document signs it without
reading it, he is ordinarily to be regarded as negligent, and
he cannot avoid the contract because he thought the document
embodied a transaction of a different nature.

[Dog Howie]

CD: Do you happen to be aware of any "case law" or meaningful decisions surrounding this? On a very related matter, in my industry the enforceability/binding strength of EULAS (End User Licensing Agreements) is constantly on my mind. (EULAs as I use the term are those agreements often found at the end of a website account creation or at the onset of a software installation that you must agree to by "clicking" a checkbox.) As a provider I REALLY want people to read m,y EULAs so they fully understand our terms but I have found time and time again that users often "agree" without reading. To me that consumer behavior is unacceptable. Just as we should be required to provide what we promise to provide, so should the user who agreed  be required to perform according to the contract they signed.

As far as the idea suggesting user manipulation by directing them past contract language and directly to a signature line by distracting them with an "X"...  my common sense finds that argument sensible and plausible.... at the very least, the "X is manipulative" argument would be used as a red herring  by opposing attorneys to degrade the intent of the signer or to imply an attempt at manipulation by the contract provider..... would it not be a stronger position to be able to assert that the contract signor had to, at least, handle and read the contract in order to find the endorsement section?

Whether I agree or disagree with this is almost irrelevant though if there have been meaningful decisions made surrounding this matter. 

-h

[Crafty_Dog]

In my understanding this is a matter of state law and you need to consult an attorney/the laws/jurisprudence of your state.

Something to consider is the category/nature of the interaction.  For example, in CA a liability waiver for a "dangerous activity" is readily enforced, but different results might apply if an emergency room requires a waiver from someone who is bleeding heavily.

[Rarick]

Yes I will second that, as in all legal matters, know your local laws on the issue.  What is illegal in one county,much less stae, can be perfectly legal in the next one over.  examples: Wet and Dry counties in the South, the life/choice counties before Rowe Vs. Wade, and the loaded/unloaded rules with firearms.