contract-law liability damages assault
Legality of absolving martial arts class of responsibility if injury or death occurs?
<p>Although people sign a declaration before skydiving, that they are aware they may die, the parachuting center can still <a href="https://news.google.com/newspapers?nid=110&amp;dat=19950220&amp;id=VzRQAAAAIBAJ&amp;sjid=UFUDAAAAIBAJ&amp;pg=7301,4192861&amp;hl=en" rel="nofollow noreferrer">be charged for manslaughter</a> if the parachute doesn't open.  </p>

<p>Does the same apply for martial arts classes?  </p>

<p>This is the clause mentioned in the "Liability waiver" section of a martial arts class application form. Am not mentioning which martial art it is. Will just name it X.  </p>

<blockquote>
  <p>I am applying for instruction in martial arts activities involving
  strenuous exercise and personal body contact. I understand that
  because of this there is always an inherent risk of injury that cannot
  be eliminated. As a condition of being admitted to train in X at
  any training premises, I assume the risk of all injuries, losses and
  damages and do hereby hold the training center, its instructors and
  agents or persons otherwise connected with the X classes harmless from
  any and all liability (including legal costs) for all claims, actions
  or damages due to injuries, losses or damage suffered by me or caused
  to a third party by me during the course of X training, or arising out
  of the activities of the X classes, or any other activities occurring
  on the premises of the training facilities or elsewhere. I have
  been given the opportunity to seek legal advice regarding the terms of
  this document.</p>
</blockquote>

<p>Even if there is a good amount of discipline during classes, if a student waives liability, that gives opportunity for a rogue student or egoistic or inexperienced master to do whatever they please. They can be rough. They can injure the student and claim that the student was not observant or quick enough.  </p>

<p>Is it wise to sign such a document as-is or can I scratch off any of the conditions there, write a counter condition and sign at the side of the sheet? An example of a counter condition would be <em>"...unless otherwise proven by witnesses that the injury/death was caused by negligence on the part of the student/instructor".</em>  </p>

<p>I also felt the sentence <em>"damage suffered by me or caused to a third party by me during the course of X training, or arising out of the activities of the X classes, or any other activities occurring on the premises of the training facilities or elsewhere."</em> was too ambiguous.  </p>

<p>That waiver for the martial arts class is a contract. One can attempt to negotiate any contract and change the terms to one's liking. It is unlikely, however, that a martial arts studio is going to want to negotiate the terms of their waiver of liability on a student-by-student basis. This will probably leave prospective students with a choice of accepting the terms of the waiver or not taking the class.</p>

<p>However, such waivers are unenforceable in some jurisdictions. <a href="https://legis.la.gov/Legis/Law.aspx?d=109260" rel="nofollow noreferrer">Louisiana Civil Code article 2004</a> for example:</p>

<blockquote>
  <p>Art. 2004.  Clause that excludes or limits liability</p>
  
  <p>Any clause is null that, in advance, excludes or limits the liability of one party for intentional or gross fault that causes damage to the other party.</p>
  
  <p>Any clause is null that, in advance, excludes or limits the liability of one party for causing physical injury to the other party.</p>
  
  <p>Acts 1984, No. 331, §1, eff. Jan. 1, 1985.</p>
</blockquote>

<p>Here is an interesting article that discusses a <a href="http://www.sportwaiver.com/yes-liability-waivers-prohibited-in-louisiana-but-should-providers-continue-to-use-them/" rel="nofollow noreferrer">lawsuit against Louisiana State University</a> (LSU) over an ankle injury. The court held in that lawsuit that the "release and hold harmless" portion of the waiver was null and couldn't be presented to the jury. However, the parts of the waiver that did not release LSU could be weighed by the jury; these included an obligation of the participant to have adequate health insurance among other provisions.</p>

<p>Another <a href="https://www.beankinney.com/publications-articles-enforceability-waivers-prospective-liability.html" rel="nofollow noreferrer">article from 2012</a> regarding such waivers in Virginia mentions:</p>

<blockquote>
  <p>...,most, if not all states prohibit waivers of liability based on willful or wanton misconduct, gross negligence or intentional acts.</p>
</blockquote>

<p>A web site titled Sport Waiver has a page, <a href="http://www.sportwaiver.com/about-waivers/" rel="nofollow noreferrer">www.sportwaiver.com/about-waivers</a>, that gives advice to businesses which want to use waivers. On the linked page, which is from 2009, it lists each of the states and how they treated such waivers at that time.</p>

<p>A business that caters to inherently risky activities will often have participants sign waivers and hold harmless agreements even when those agreements are null as a matter of law. This is done to discourage lawsuits and also, in case of a lawsuit, as a means of demonstrating that the participant knew the risks associated with the activity.</p>
