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The Martial Artist's Potential Civil and Criminal Liability - Part I - Civil Liability

06.15.12  |  By Noah Nunberg

This article examines the practical legal aspects of using martial arts techniques while training in the dojo or in defending oneself on the street. Assault and battery, the main legal rubric which should concern the martial artist, is examined in depth as to potential criminal and civil liabilities which may arise. Both specific cases and hypothetical situations are referred to in order to give the reader some insights into the modern code of conduct under which he or she is expected to abide.

(Caution: The analysis and statements in this article are not meant as any form of legal advice. They are presented here merely for informative and educational purposes to assist the serious martial artist to understand potential legal issues related to teaching, training and self-defense. If you have a legal problem please consult a qualified lawyer.)


Knowledge of the law of assault and battery is an aspect of martial arts training that has been sorely neglected. A practitioner of any martial art should have a general understanding of society's code of conduct in order to understand how to react reasonably to an assailant's attack. Furthermore, society's standards are not shed at the door of the dojo with one's shoes. The law has crucial implications within the confines of the training hall. Although legal niceties do not strictly control a person's conduct in the midst of a street encounter or during fighting within the dojo, a martial artist should take time to reflect upon the legal consequences that flow from using his techniques.

The focus of this article is upon the civil and criminal legal consequences flowing form a non-fatal blow delivered from the hand or foot upon an assailant on the street or opponent in practice. The distinction between the criminal and civil law is fairly obvious. Criminal liability results from a prosecution by the state for an offense or wrong one commits against the public. The primary purpose of a criminal proceeding is to protect the public against the offender by punishing him or eliminating him from society.[i] Generally the state, as the protector of the public welfare, defines criminal offenses in statutes promulgated by the legislature. Civil liability, on the other hand, flows from a civil proceeding brought by one individual, the plaintiff in a lawsuit, against another, the defendant, to be compensated monetarily for the damages resulting from a wrong or tort committed against him. These two classes are not mutually exclusive. That is to say, the same act can lead to both criminal and civil proceedings.



The tort readily associated with the martial arts is battery which is defined as an intentional unconsented to touching of another person's body. Intentional, in this context, does not involve malice or ill-will, but rather is merely the volitional action of touching a person. One may jokingly touch another person and have committed a battery. On the other hand, if someone turns around and in the process accidentally touches another person, there is no intent to touch him. However, if one walks forward, sees another person in his path and rudely pushes him aside, there is intent to make such contact, and a battery has been committed.

Consent as a Defense to Battery

As the definition of battery requires, the touching must not be consented to by the injured party. Consent is a willingness by a person that an act shall occur. This consent need not be expressly given in words but may be manifested in the actions of a person. Implied consent, as the latter form of consent is called in the law, entitles a person to reasonably rely upon another person's conduct which demonstrates a willingness that an act occurs. If one expressly consents to an act, but in his heart of hearts actually has deep reservations, he cannot later say there was no willingness in fact. A party will not be permitted to rely upon his subjective lack of consent when his actual conduct is totally contradictory and misleading to others.

Silence can operate as consent here a reasonable person would otherwise speak. As Professor Prosser's treatise points out, a woman who does not protest upon a man's proposal to kiss her may have mental reservations; nevertheless, the man remains privileged. Yet, the man who stands his grounds under the threat of attack cannot be said to consent to the blow he receives from an attacker.[ii]

The scope of the consent cannot extend beyond its reasonable meaning under the circumstances. For example, consent to be touched is implied when one goes to a doctor for a physical examination. Similarly, when one joins a group to play football, consent to be touched is implied. It can be assumed that the willing participant is familiar with the rules of the game which include touching players. If during the course of play the participant has a change of heart, he must expressly state that he no longer consents to be touched or he may leave the game. However, the consent, whether actual or implied, may not be extended beyond its reasonable meaning. Thus, the physician conducting the physical examination may not take indecent liberties with his patient, and the participant in the football game may not be tacked with a kick to the groin. Such contacts clearly extend beyond the scope of the consent given.

Harper and James, authors of a major treatise on the law of torts, state with regard to consent in sporting activities as follows:

AIt is not always necessary that the person consent to the harm itself; it is enough if he gives his consent to the act which he knows will result in bodily harm. Thus, where one engages in games or sports in which there is a likelihood or certainty of bodily contacts, such as a boxing match or athletic event, he assumes the risk of the bodily injuries which are almost inevitable from the conduct on the part of the other contestants to which he gives assent. 'When people engage in a game involving risk, or a game generally safe, but in which accidents may happen, every player taking part in it takes on himself the risks incident to being a player, and he will have no remedy for any injury he may receive in the course of it, unless there has been some undue violence or unfair play on the part of some of the others. He takes the risks incident to the game, and the result of these risks must lie where they fall'."[iii]

Practical Implications in the Dojo

In the dojo, the vast majority of contacts between students, whether practicing self-defense techniques or engaging in free-style fighting, will not justify a lawsuit because consent is expressly, or, more often than not, impliedly given from the mere fact that the two students agree to practice together. Yet the scope of the consent cannot be extended beyond that which is reasonable under the circumstances. This range of consent within the training hall is usually defined and controlled by the head master or instructor of a particular dojo

As a student of the martial arts knows, the code of conduct in the traditional dojo is quite formal and proper decorum while practicing must be strictly adhered to. Historically, this can be traced to the concept of bushido, the way of the warrior, of twelfth century feudal Japan. This oriental code of chivalry strictly defined proper conduct by which the bushi could apply his martial skills.[iv]

Hypothetical Situations in the Dojo

Let us examine the following hypothetical situations. A agrees with B to practice defensive techniques against unsheathed knife attacks. B attacks A at A's signal and A in attempting to block the incoming knife is stabbed in the arm. A has no action against B. A has expressly consented to participate in this training and A must assume the risk of being cut by the knife if he blocks improperly.

Assume that A again agrees with B to practice against such knife attacks. B instead attacks A with a long sword as A turns around to face but before A can say anything. A, who has not perfected his technique, is cut in his attempt to block the long sword. B has committed a battery, since A never consented to be attacked by B with a long sword. On the other hand, if A had seen B approach him with such a sword rather than a knife, and had A remained silent and signaled B to attack him by nodding his head, then no tort would have been committed since A's consent was clearly expressed.

Assume now that A is attacked by B with a knife and A successfully blocks the incoming knife. B then remains stationary to allow A to practice follow-up counter techniques. A does not hold back with his kick to the groin. B is doubled over in excruciating pain.

If it is the custom and practice of the particular dojo under the tradition followed by the Master to practice self-defense in this fashion, and B was on notice of this fact, then B would have consented to such a blow. However, the dojo which practices in such a manner is the aberration rather than the general rule. Furthermore, as will be discussed below, although such consent may preclude a civil action, there may be criminal liability as a result of such a repartee.

Taking this last hypothetical and placing it in the context of the mainstream dojo, the forceful blow delivered by A to B would not be consented to by B. Once A had blocked B's knife attack, B was standing prone to allow A to practice his follow-up attack. Under the circumstances, B would have consented to light bodily contact. Similarly, if A began to deliver such a light kick and suddenly lost his balance and hit B much harder than expected by either A or B, that bodily contact arguably would have been within the scope of the consent. B must assume the risk that in practicing self-defense techniques such a mistake can happen. Not only will B have learned to avoid practice with A whenever possible, B will certainly have more faith in the kick to the groin to defend against knife attack.

Street Situations

In an unprovoked street attack situation, no question of consent exists. If the martial artist unarms his assailant and inflicts bodily injury upon him, then the majority of situations can be legally defended under the legal rubric of self-defense. The legal concept of self-defense permits a person who is attacked to take reasonable steps to prevent harm to himself where there is no time to resort to the law.[v] This privilege permits a victim of an attack to use reasonable force to prevent any threatened harmful or offensive bodily contact.

Reasonably Perceived Danger Controls

The danger that the attackee reasonably perceives at the time of the attack will be controlling rather than the real facts as determined later. If the would-be assailant reaches into his pocket and the victim fears he is reaching for a weapon, the preemptive strike made by the martial artist is still protected by the privilege of self-defense even though the assailant in fact had no weapon. The belief the attackee has, however, must be based on some reasonable grounds and cannot be purely speculative and fanciful. This often will be a question of fact for the jury or court to determine whether one's belief was reasonable under the particular circumstances. Factors such as the victim's state of mind and nerves, the assailant's past conduct and threats towards the attackee, if any, and the assailant's reputation will be relevant evidence upon which the jury may base its decision.

The Degree of Permissible Force Used in Self-Defense

The degree of force one uses to defend oneself is not unlimited under the law. Rather, the amount of force used to defend oneself must be that amount which is, or reasonably appears to be, necessary to defend oneself against the threatened injury. Using excessive force against an attacker will cause the victim to be legally liable to the assailant. An assailant may withdraw after his initial attack. If he clearly communicates this withdrawal to the would-be victim, the privilege of self-defense ceases to protect the victim when he becomes the aggressor and attacks his assailant. The first assailant, at this point, becomes the victim and the rules of self-defense become applicable to him.

One may not use a deadly weapon which is calculated to inflict death or serious bodily harm for self-defense, unless it is used under the belief that the victim is under a threat of a similar degree. The question may be asked whether any blow delivered from a well-trained and proficient martial artist delivered with the empty hand or foot will be considered using a deadly weapon. I shall reserve analysis of this question until the criminal portion of this study. But such an application of the term "deadly weapon": would lead to the conclusion that a martial artist could not meet an attack, which would not cause serious bodily injury or death, by using his hands or feet. Consequently, his training ironically would render him less able to defend himself than the average untrained man. Such a conclusion is highly absurd and should not be reached under the law.

However, on a more practical level, the skilled martial artist confronted by an armed assailant should be able to calibrate his blow to meet the attack with a similar degree of force. Where there is not time to reflect or to accurately determine the intensity of the attack, then one's trained tendency to protect oneself with a split-second and devastating technique coupled with one's natural tendency to preserve oneself will not be ignored by the law and in all probability the force will not be deemed to be excessive. Again, this is a question of reasonable perception under the circumstances, and the lack of time to form an accurate perception may be determinative in the mind of the trier of fact.

The Duty to Retreat

As is often the case under the law, various jurisdictions have different rules pertaining to retreating where a serious or deadly attack is concerned and a reasonably safe route of escape is available to a victim.   Courts in the South and West place more stock in an individual's dignity and honor and say he may stand his ground and inflict serious bodily injury or death where the attack calls for it. Other jurisdictions, including New York, hold that personal honor cannot justify inflicting serious wounds or death upon an assailant and that a victim must retreat where he may do so safely. Generally, there is no duty to retreat when an attack takes place in the victim's home. One's home is his castle, and where the victim is threatened with a grave attack in his home, retreat is unnecessary before defending oneself.

Protection of Others

The privilege of self-defense is extended to the protection of others. That is to say, one may defend another person against his or her assailant, and the privilege is as broad as the other victim enjoys. Again there is a split of jurisdictions where one mistakenly assumes he is defending another person in a situation when that other person in reality has no privilege. Courts in New York and other jurisdictions have held that the good Samaritan assumes the risk that the person he is defending has no privilege.

This concept is illustrated in the New York criminal case of People v. Young, 11 N.Y.2d 274 (1962). There the defendant came upon two men struggling on the street with a third man. The defendant intervened to help the third man who was fighting against his two assailants; however, these assailants turned out to be plain clothes policemen who were trying to arrest the "victim". The defendant was convicted of criminal assault in the third degree, even though he had a reasonable, although mistaken, belief that the "victim" was defending himself from an unjustified attack.

Courts in other jurisdictions hold that, just as the victim himself may be mistaken and still gain the privilege of self-defense where he acts reasonably, so too the mistaken defense of others should be worthy of the same privilege. Thus, the People v. Young case would result in an acquittal of the defendant in states which followed such a rule of law. In fact, subsequent to the Young case the New York Legislature liberalized the law and in effect overruled People v. Young by recognizing that physical force may be used in defense of a third person where the defendant "reasonably believes" such to be necessary to defend a third person. Thus, if the good Samaritan was mistaken about the victim's privilege to defend himself, a question is presented as to the reasonableness of the good Samaritan's belief.

Civil Assault

Civil assault is commonly misapprehended by laymen and lawyers alike. As a tort, assault is distinct from battery in that assault is designed to protect the individual from the apprehension of a harmful or offensive contact from another person. In contrast to battery, no contact need be made to constitute an assault. All that is required is the threat of such contact combined with the attacker's ability and opportunity to carry the threat out immediately.

Although no physical contact is required, the law does require a more specific intent by the attacker than that which is required to show battery. There must be an intent by the assault or to cause the victim to doubt his physical security, and the victim must be aware of this threat. Thus, if the victim were attacked from behind without warning and rendered unconscious by a blow to the head, he would merely have an action for battery against his assailant. Yet if the attacker menacingly approached from a point visible to the victim and struck a blow which was seen by the victim, the approaching technique would constitute an assault and the impact would constitute a battery. The victim, accordingly, would be entitled to damages for both the fear he felt from the threatened blow (assault) as well as the pain from the blow itself (battery).

Awareness of the Threat is Essential

The victim must be aware of the threat for him to be placed in apprehension of it. Thus, an unconscious person cannot have a claim for assault but may have a claim for battery when he regains consciousness. If a victim is rendered unconscious by the first blow, and then is kicked, the victim will have an action for only battery on the basis of the subsequent kick which he never saw. The victim will have an action for both assault and battery for the first blow which rendered him unconscious.

Reckless Misconduct

While assault and battery are the main civil liabilities confronting the martial artist, he may also be held responsible for "reckless misconduct" even though another has consented to practice with him. While the law permits a person to consent to purely negligent conduct in an attempt to create a "margin of safety" for those who chose to participate in socially beneficial sporting activities, where the attacker's actions extend beyond the zone of negligence into the realm of recklessness, the law imposes liability upon the attacker. The distinctions between reckless misconduct and negligent misconduct, which in reality may be very obscure, will be illustrated in the following discussion.

In the 1979 case of Jackrabbit v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir.), cert. denied, 444 U.S. 931 (1979), a defensive back of the Denver Bronco's, Dale Hackbart, sued the Bengals and its offensive back, Charles "Booby" Clark, for an injury received during a professional football game. After Hackbart's teammate intercepted a pass intended for Clark, Hackbart attempted to block Clark by throwing his body in front of him. Hackbart remained kneeling on one knee watching his teammate return the intercepted pass to midfield when Clark, out of frustration, intentionally delivered a blow with his elbow to the back of Jackrabbit's head.

In the lawsuit that followed, the trial court dismissed the claim of assault and battery because the contact occurred during a sanctioned football game in which violence is condoned under the rules of the game as administered by football referees and officials. This view, however, was not followed by the appellate court, which held that such reckless misconduct should not be permitted under the law.

Instead of relying on the common law theories of liability under the definition of assault and battery, the United States Tenth Circuit Court of Appeals applying Colorado law relied on ' 500 of the Restatement of Torts (Second), which holds that a person should be liable when his misconduct is more than negligent and causes injury to another. Section 500 states in pertinent part as follows:

500. Reckless Disregard of Safety Defined

"The actor's conduct is in reckless disregard of the safety of another if he does an act . . . knowing or having reason to know of facts which would lead a reasonable man to realize, not only that his conduct creates an unreasonable risk of physical harm to another, but also that such risk is substantially greater than that which is necessary to make his conduct negligent."

By this definition of reckless misconduct, an objective standard of the "reasonable man" is applied to the conduct in question. The jury will be asked to apply that hypothetical measurement to the conduct based upon the evidence presented at trial, and if the conduct is purely negligent, the defendant will not be found liable.

Thus, in jurisdictions such as Colorado which apply Section 500, even though one has consented to be touched by virtue of his participating in a contact sport, the participants will not be immune from civil liability if they act recklessly towards another and they should as reasonable people realize such acts could cause a substantial risk of physical harm which is not merely negligent. 

Reckless Versus Negligent Misconduct

Reckless misconduct is a greater wrong than negligent misconduct. Negligence implies an unskillfulness or incompetence in one's actions when compared to a reasonable standard of conduct, which causes a risk of harm to another. On the other hand, recklessness involves a conscious course of action by the wrongdoer, which a reasonable person should recognize involves a risk of harm to others which is substantially greater than the quantum of risk involved from purely negligent actions. This consciousness that a substantial risk is created by one's conduct makes one's liability much greater in the eyes of the law. We will return to this concept of conscious wrongdoing in discussing potential criminal liability.

Negligent Misconduct

Negligence in the law is not measured by the specific intent of the defendant to cause harm to a plaintiff. Rather, general rules are formulated by the courts based on the duties that people owe to one another in society. The standard of care that a person must adhere to is the "reasonable man standard" under the circumstances involved. When one breaches that duty, she will be liable for all damages that are proximately caused by her negligent actions.

Generally, negligent misconduct in the context of contact sports will not result in civil liability. This is illustrated in the case of Oswald v. Township High School Dist. No. 214, 406 N.E. 2d 157 (Ill. App. 1980). There the plaintiff was injured when he was kicked while playing basketball in a required high school gym class. The plaintiff contended that the misconduct involved violated certain national high school safety rules for participants in basketball games. The Oswald court specifically held that negligence alone is not enough to impose liability upon a participant in a contact sport. To be held civilly liable, the court explained, the player's misconduct must be willful, wanton or with "a reckless disregard" for the safety of the injured player. The court also approved a "margin of error" which permits the negligent violation of the rules of the game when in the heat of the action. However, when a player's misconduct exceeds the negligent buffer zone and enters the realm of reckless disregard of the safety of others, then the reckless player will be held liable for any injuries he or she causes as a result of his or her reckless misconduct.

Assumption of Risk

Courts will apply the principle of "assumption of risk" in analyzing whether a persons involved in karate training are negligently liable in causing injury to others in supervising his students. This concept was well explained in the New York case of Beck v. Scimeca (Hwrang-Do Center), 90 N.Y.2d 471 (1997). The court explained that when a person engages in a sport or recreational activity, he consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. 

For example, the court observed that one is legally deemed to accept responsibility to being hit by a ball in a baseball game or being bumped in a horse race. In each situation, the law will consider the degree of risks the plaintiff assumed when he elected to participate in the activity. The courts will not examine this in a vacuum. The assessment is made against the background of the skill and experience of the participant.

In Scimeca, a 30 year old orange belt student sued his instructor for compelling him to attempt a "jump roll" technique. There a 15 year old brown belt took over the class and directed the older orange belt, who had been training for 15 months, to jump over a high barrier. While the student had performed the technique before, the obstacle the student had to jump over was raised higher than he had previously attempted, and the student sustained severe spinal injuries in his failed attempt.

The court held that the student had assumed the risk of attempting such new techniques, which were calculated to advance his level of ability. The court examined whether the instructor created dangerous conditions which were over and above the usual dangers inherent in the martial arts class. The court also made clear that to assume the risk the participant must not only have knowledge of the injury causing activity, but also an appreciation of the risk involved. There, since the student had participated in this training technique before and he appreciated the inherent risks, there was no negligence.

The court distinguished other cases involving sparring activities, which appear to place a higher degree of responsibility upon the instructor. For example, in Deangelis v. Izzo, 192 A.D.2d 823 (3d Dep't 1993), a beginning karate student sued the owner of the school as a result of sustaining a serious head injury while sparring with another beginner. 

The court refused to dismiss the case based on assumption of risk there. The court noted that karate is not a commonly observed activity such as baseball or football and the dangers in karate are not at as apparent as they are with other common sports. Karate involves "specialized training" in order to make the punches, kicks and blocks effective. There, the new students had been trained in the punches and kicks, but not in blocking them. 

Interestingly, the court observed correctly that placing beginners together to spar may be more dangerous than having the beginner spar with a more experienced opponent. The court found that since this fact in counterintuitive, it was not clear that the risks involved were "known, apparent or reasonably foreseeable . . . ." Therefore, the court refused to dismiss the action and held it for trial.

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