Lesson: Risk Management

Scenario 1: A few kids, before class, are having a piggyback jousting session. That’s where one partner mounts the other and tries to knock down or cause a dismount of the opposing pair. This escalates not only in intensity but also in difficulty as the pairs are now shoulder mounted. One child falls and suffers a concussion and a broken arm.

Scenario 2: There are about twenty five to thirty students packed into a small twenty by twenty room. Along one side there are a few unoccupied chairs and a desk. Everyone is busy in trying to throw someone until finally someone does. Unfortunately, due to the overcrowded space, it’s into the leg of a student who falls onto others and a few collide into the desk and chairs. This resulted in several bruises, stubbed toes, bent fingers, and an ACL operation.

Scenario 3: It’s a particularly hot day and with no air conditioning in the dojo, someone yells out, “OK, don’t be a sissy, get out there and fight! Water break? What are you talking about? Johnny faints, but the others are told to continue while he’s being dragged to the side to make room. His skin is cool and clammy and his breathing is shallow and he still hasn’t come to. Now what do we do?!

With a little bit of care these types of situations that can lead to legal problems can be avoided.  The old adage “Do unto other as you would have done onto yourself” is a good place to start.  As coaches and instructors we are entrusted with the care and development of our students. If we think of them as if they are our own children we would want nothing but the best for them.  What most parents want is a safe, clean environment in which their children can grow to be strong healthy humans they can be proud of. To accomplish this we need to be a cut above the average person on the street. We need to think ahead and to continue to be vigilant to perilous conditions. The examples above are instances where due to neglect or a lack of understanding of contraindicated conditions someone is injured needlessly. The area of law that we are concerned with termed Tort Law, but more specifically the area of Negligence.

Query

1. What is negligence about?
2. Are there certain standards for coaches that differ from regular people?
3. What are legal defenses to negligence?

Negligence

Negligence occurs when there is an assumed duty that is breached or not performed, and you are the proximate cause that has resulted in some damage. Thus negligence is a result of a duty, breach of duty, causation, and damages. If any one of these factors is missing a case for negligence or liability is very weak. Along with these terms there are a number of others that one becomes familiar with. These are listed below with a brief description of each:

1. Reasonable man rule: This rule states that the standard of care that should be exhibited is that of what a sane and reasonable person under the same and/or similar conditions would do. Therefore, a first aid provider is not expected to perform at the same level as a doctor, or visa versa. Your standard of care is that of your training level.
2. Foreseeability: This is a concept that asks the question, could a sane and reasonable person under the same conditions understand what could happen as result of one’s action or inaction. In the example given above, children playing piggyback knights jousting while on the shoulders might not be able to see a problem, but for an instructor trying to maintain a safe environment it’s a different story. He or she should be able to “foresee” a possible accident waiting to happen.
3. Thompson vs. Seattle Public School District. This was a landmark 6.3 million dollar case delineating the duties of a coach. Basically coaches have a duty to properly instruct, which means they should have a set curriculum, usually written, with set objectives and methods of delivery. Additionally, there is a duty to warn. Warn against contraindicated or questionable practices that may be detrimental to the student. Like not taking in enough water during vigorous bouts of exercise. Lastly there is a duty to supervise. This duty is ever more important, the younger the students the more supervision necessary. Also the inherently more risk associated with the activity the more supervision needed. Some activities such as scuba diving have an age requirement as well as a ratio of supervisors to students in play.

Mitigations and Defenses

There are certain instances when a terrible accident may be excused or mitigated they include:

Not meeting all the Requirements of Negligence

1. Duty
2. Breach of duty
3. Causation
4. Damages

If ANY of these four elements is missing then negligence cannot be established. For example, let’s say that a coach had a duty and breached it, and it was established that he was the proximate cause, however no one was injured. The fourth element of damages cannot be established.

1. An act of God. This is an occurrence where a natural disaster is involved. This is where such things as lightening, floods, earthquakes and storms set the disaster in motion and caused injury to the student under your supervision.
2. Assumption of Risk. Assumption of risk is where an individual voluntarily enters into an activity knowing of its inherently dangerous nature. Students entering into skydiving know that there is a possibility of death should a parachute not open. Gymnasts engage in exercises knowing that one false move and they may go flying into a wall or floor resulting in grave injury. Judoka know that there is the possibility of bruises, broken bones, and in unlikely cases, death due to its origins in the martial arts. Most dojos have a waiver and release form that students and parents sign. It is advisable that persons signing the student in verbally explain and ask if the student and or parent understand what they are signing.  This of course still does not excuse a negligent act.
3. Contributory negligence. This is where the plaintiff is denied recovery due to his own negligence even where the defendant may have been negligent as well. An example is where a beginning student may be forewarned not to apply any techniques learned in class to their siblings at home where there might not be any adult supervision. In spite of these directions the novice applies a technique and seriously injures a family member prompting the parents to bring action against the instructor. Here the parent may be barred from recovery since they may have signed a waiver addressing the possibility of injury and the need for due diligence on the part of parents and participants. Most certainly the instructor may also claim that students were forewarned not to apply any techniques outside of the dojo and that the mishap was a result of the participant’s contributory negligence.
4. Comparative Negligence: An example is where an arm bar is applied in practice by two white belts resulting in a broken arm. The student with the broken arm claims that there should have been supervision by an instructor. The instructor claims that the white belts were instructed that they were not to practice without the presence of a black belt. While the instructor should have been supervising the practice, the white belts clearly contributed to the accident and should not have been practicing, much less executing a technique usually reserved for black belt practitioners. In comparative negligence recovery is often times based on the percentage of attributable fault.
5. Government Immunity: At one time many states did not allow its citizens to sue the State unless it gave its consent to do so. Even with many government agencies taking out liability insurance and in effect impliedly nullifying their claim to government immunity, they may still use this doctrine to protect their workers and their budget.

Risk Management:

Reduce your exposure to Negligence

– In addition to a black belt one should have a teacher certification from a nationally recognized organization or institution.

– Keep current by attending continuing education classes, coaching clinics, and certification classes.

– Maintain a clean and safe environment for students. Vigilance is key.

– Maintain close supervision.

– Have a lesson plan with outcomes to be achieved by certain dates.

– Keep a dated log of serious incidents that may occur, like disagreements and injuries. You may even want some signed statements as to what occurred.

– Have a posted procedure list of things to do in the unlikely event of an accident. e.g. hospitals, police dept. location of the first aid kit, notification of parents, etc.

– Have a checklist of “do’s and don’ts” for students in the dojo.

– When registering student into your club or when attending special events have the students and/or parents fill out, sign and date all waivers. It is important that they read and understand what they are signing.