fbpx
Dr. Jörg-Michael Günther, Gerhard E. Hermanski logo

Liability of martial arts students and demonstrations

Liability of martial arts students and demonstrations
Part 2 Liability of martial arts students and demonstrations
From Dr. Jörg-Michael Günther and GM Gerhard E. Hermanski


Editor's note: The legal texts made available to our magazine by the authors in this article have been carefully researched by the authors, but do not constitute legal advice! This article is for our readers only for guidance! Since our magazine is published worldwide, different laws may apply in your country of origin. This article highlighted the legal situation in Germany in the HAPKIDO magazine flipbook. No liability can be derived either from our publisher or from the authors . If in doubt, contact the legal advice you trust in your region! (uw)
 

In the last issue of Hapkido magazine, we presented the liability situation for martial arts teachers if their students suffer an injury while practicing their martial arts. A different liability situation exists if it is not about master-student situations. The decisive liability aspect of superior technical skills and knowledge among martial arts teachers is then not so pronounced. Training partners in the respective Hapkido training group will have the same or similar belt degrees. However, even below the master level, you can demand more care from an experienced, technically experienced martial artist than from a beginner. The article shows the liability situation in case of training accidents among martial arts students. Of course, the authors do not think that after an injury caused by the training partner one should automatically call for damages and compensation for pain and suffering. In martial arts culture, injuries are considered part of the general risk to life. However, we would like to use a few examples from various martial arts to point out legal aspects in order to point out the responsibility of martial arts students among themselves and the central principle of consideration in hapkido. Above all, there is the responsibility of the master to temporarily take a person out of training if they are too exhausted or too "wild" towards training partners. Masters have to make sure that training partners “fit” to each other in a wide variety of aspects (belt color, size, mentality, etc.) and that especially practitioners with higher degrees are aware of their responsibility. This is an important basis for avoiding training accidents as far as possible. In this context, it can be said that compared to many other sports, Hapkido is quite unremarkable in the injury statistics.

The liability of martial arts students

Martial arts and martial arts are connected with the direct use of strength and body with additional aspects such as speed and dynamism. During training, throws, block techniques, grips, punches, etc., therefore inadvertently lead to injuries to the training partner. After all, training can only be effective if, among other things, attacks and defenses are not carried out fully, but are carried out intensively and at an appropriate speed. It happens not infrequently that, for example, during the training of the paws in the heat of the moment you miss the paws and hit the defender on the body or face. This can also lead to mistakes by the defender holding the claw. Litters also have the potential for injuries. It is difficult, for example, to break off a throw that is technically not very successful in the beginning in the movement process in order to avoid injuries. A good case school, which distinguishes a competent martial arts school, rarely causes significant accidents. If the training partner is injured anyway, the case law grants the “injured party” a considerable liability clearance. Courts emphasize that, after all, everyone who practices martial arts knows the risks and agrees to them. As a martial arts enthusiast, you normally don't have to be liable for a partner's training injuries, but the frequency of court proceedings in the field of budo sports is increasing. Against the background of a widespread use of legal expenses insurance, the feeling for general life risks disappears. Unfortunately, the tendency to look for someone who is liable increases in all areas of life. It is therefore important to be aware of some judgments about budo sport that are trend-setting for the training process. This includes a convincing judgment by the Cologne Higher Regional Court on liability in training fights (Cologne Higher Regional Court, Sport and Law 1995, 135). In this case, a higher belt wearer in judo had done dangerous leg scissors in a free training fight (Randori) with a lower-ranking fighter without prior notice. This led to an injury to her. The higher belt wearer had to be liable due to unlawful acts (§ 823 BGB). He had used techniques that his opponent did not know and did not have to master after her training level.

The court regarded the behavior of the higher belt wearer as a violation of the fairness requirement:

“In principle, the Randori does not require any announcement that you want to use certain techniques. Then the meaning of the free exercise fight would be largely lost. This applies unreservedly only to opponents with equal training. With opponents of different rank, however, fairness requires consideration. The participant must then keep within the framework of the grip and throwing repertoire, which must be familiar to his opponent according to the objectively recognizable circumstances. In a free practice fight with a judo participant from a lower belt level, the higher-ranking judoka is therefore not allowed to fully use his own repertoire, but only to use those techniques that the opponent must be familiar with according to his level of training and examination. If a judo fighter with a higher status wants to use a technique in a Randori during a free practice fight against a competitor with a lower belt color, this technique only belongs to the practice and examination repertoire of a belt level higher than that of the opponent, if he does so he asked the “lower rank” beforehand whether he already mastered this technology and whether it can therefore be used. Another approach would be frivolous and unfair. Because in judo, mastery of the respective throwing technique is not only necessary for the thrower, but also for the thrown. He has to adapt to the special technology in the way of his fall and the counter movements if he does not want to suffer significant injuries. "

The higher belt wearer had to be liable for the sports accident of his training partner, who had the blue belt. It is transferable to Hapkido. If, as an exception, liability arises between training partners or during martial arts demonstrations, the injured person is at fault (§ 254 BGB). If you are at fault, the compensation for pain and suffering is reduced and you do not have to vouch for the full damage as a victim. In the case decided by the Cologne Higher Regional Court, the plaintiff rightly countered the following:

"The plaintiff cannot, however, receive full compensation for her damage, since in any event she is to be credited with half of the fault. Although, according to her own account, she was not aware of the litter, but the defendant ultimately tried it three times, she did not protest in any way or asked for the Randori to be interrupted and clarified. This is a fault against one's own interests that within the framework of § 254 BGB ... was correctly assessed with half the responsibility. After the second attempt at the latest, the applicant should have brought clarification. It can be assumed that the accident would not have occurred then. "

The court's extensive expertise on the principle of fairness between training partners can also be applied to many other duel sports such as karate, hapkido, taekwondo or jiu-jitsu. It is important for the practice of martial arts and martial arts that the Cologne Higher Regional Court emphasizes in its ruling that "faulty throwing technique by itself" does not lead to liability. What the court says about unsuccessful throwing techniques can also be applied to all punching and boxing techniques, kicks, etc.:

“Errors in setting up and carrying out certain throwing or grip techniques can hardly be avoided and as such do not constitute a basis for liability per se. In any case, this applies if the wrong use of a certain throwing technique and so on and so on does not take place on purpose or malicious will, but negligently ”

Another result would also lead to a completely limitless extension of liability, because wrong or not optimally executed techniques occur constantly between training partners in every budo training. They mark the student's long journey to master. The sophisticated techniques in martial arts require years of practice to perfection. Even masters of martial arts do not claim to be able to perform or execute every technique in absolute perfection every day at any time. In this respect, especially with martial arts students, the liability requirements during training should not be overdrawn, because everyone involved is aware of the difficulty of many techniques as well as the remaining risk of injury due to technical deficits. The complexity of the techniques is clear in a word by Grand Master Kuksanim Myong, Jae-Nam, Hankido-Hapkido:

"It is better to practice a technique 1000 times than 1000 techniques once."

In general, the cornerstones that the Federal Court of Justice has generally laid down for the practice of martial arts in a broader sense, which also includes football, apply in budo sports. Accordingly, an athlete who injures an opponent is only liable for intentional or grossly negligent breaches of the rules (BGH NJW 1975, 109). If there is no or only a slight violation of the rules in the competition or training operation and for example due to overzeal, fatigue, technical failure or similar reasons an injury occurs to the combat partner or opponent, liability is regularly excluded. There is a considerable amount of liability in martial arts and that is a good thing.

Incidentally, the Düsseldorf Higher Regional Court also applied these principles to a sporting competition in which a school playground during a break was a kind of shadow boxing for two students in a spontaneous “show fight”. Comparable to karate, blows and kicks were only carried out to the opponent's body and then stopped, so that their full force was taken away (OLG Düsseldorf NJW-RR 1993, 292). In a "fighting situation" one of the "shadow boxers" apparently failed to stop, so that his "opponent" was injured. The latter then filed a lawsuit. However, since there was no willful misconduct or gross negligence on the part of the shadow boxer responsible, the lawsuit was dismissed.

Liability for martial arts demonstrations

The Munich Higher Regional Court had to deal with the question of which legal principles apply to martial arts demonstrations (OLG Munich, judgment 20.5.1996, 30 U 775/95). As part of an exchange of experience between martial arts and self-defense teachers from various martial arts, a specific, painful self-defense technique (nerve pressure) should be shown by a martial arts teacher. Before the demonstration, the bogus attacker should carry out a so-called "headlock grip" on the defender. In view of a painful defense attack that threatened him and was carried out in parts, the sham attacker who was later sued dropped uncontrollably, which led to serious injuries to the defender (including cruciate ligament rupture / tear of a side ligament). He therefore made claims against the bogus attacker for damages and pain and suffering in the video-based martial arts demonstration.

The court initially found that there are legal peculiarities in martial arts demonstrations:

"Since it was not a matter of practicing a sport fight, but only of demonstrating a defense technique, the case law on the suspected consent of the injured person to the injuries common in fighting this sport does not apply". The court ruled that the bogus attacker violated the “rules of the game” during the demonstration and showed an unnecessary overreaction. Instead of letting himself fall uncontrollably, he should have made use of the always existing possibility of "clapping" or saying "stop" or stop:

"For his at least uncontrolled behavior (dropping), the defendant cannot rely on the fact that he only practices" Thai boxing, kick boxing and karate ", in which disciplines there is no" clapping ". Then he should not have made himself available as an assistant for a demonstration of a sport he was not sufficiently familiar with. In addition, the defendant as a black belt wearer (fighter of the highest rank and martial arts instructor) had to be sufficiently familiar with the practices of other disciplines. There are also techniques in karate that require clapping, which the defendant does not deny. As already shown, he was not a combat partner, but merely the assistant of a demonstration, which, convincing the expert H., is not allowed to show initiative. He has to submit to the demonstrator. "

Nevertheless, the martial arts instructor, who was seriously injured on the knee and who led the martial arts demonstration, was rightly not awarded the full compensation. The court accused him of not having fully instructed the bogus attacker from the other martial arts beforehand in the course of the demonstration. In the judgment, he was accused of having had to make more detailed arrangements - especially regarding possible reactions to the nerve presses - at an event with martial arts instructors of various sports before the demonstration. After all, he led the martial art demonstration and was therefore particularly responsible. This case in particular illustrates very clearly how important it is, given the susceptibility to injury of some exercises and techniques in martial arts and martial arts, to make extensive agreements between the combat partners beforehand when it comes to demonstrating techniques. If this had happened in the case decided by the Higher Regional Court in Munich, the sports accident would probably not have occurred. The affected martial arts teacher was unable to conduct training with appropriate exercise demonstrations for months in his martial arts school because of his serious injury.

Principles and recommendations

As a conclusion from the case law, the following can be stated:

1) In general, a special communication behavior in martial arts is recommended.

2) In budo sports, martial arts students should inquire at every phase during exercises or demonstrations in case of doubt before carrying out special techniques and, if necessary, clear agreements should be made.

3) The more dangerous the hapkido technique, the more careful planning and consultation is necessary.

4) Training instructions from martial arts teachers are to be observed by the martial arts students, prescribed protective equipment is to be worn.

5) If necessary, martial arts students have to interrupt technical executions at a suitable point in case of uncertainties about the process, in order to reduce the risk of sports injuries for the training partner.

6) In rare cases and under unfortunate circumstances, hapkido training can lead to liability among martial arts students in the event of injuries.

7) In martial arts demonstrations, careful agreements must be made between the participants.

Portrait of JuergGuenther Gr Portrait of Gerhard E Hermanski2 oßmeister Gerhard E. Hermanski
8. Dan Hankido Hapkido
CEO of the Federal Academy of Korean Martial Arts
Teaching trainer for security,
Personal protection and judicial training

Dr. Jörg-Michael Günther
Legal Advisory Board of the Federal Academy of Korean Martial Arts
Author and lecturer in sports and criminal law,
1. Dan Hanguldo / 2. Kup Hankido Hapkido
Gerhard Hermanski
8. Dan Hankido Hapkido, CEO der Bundesakademie koreanischer Kampfkünste, Lehrtrainer für Sicherheits-, Personenschutz- und Justizausbildung