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Court of Appeal:
Martial Arts Instructor Liable for Student’s Sparring Injury
Majority, Upholding $46 Million Judgment, Says Negligence Standard Applies, Despite Assumption of Risk of Dangers Inherent in Sport, Where Teacher Did Not Engaged in Active Instruction, Did Something to Increase Risk
By Kimber Cooley, associate editor
Div. One of the Fourth District Court of Appeal has held, in a 2-1 decision, that a combat or grappling sports instructor may be held liable for a student’s injuries under a negligence standard of care where he performs an act that increases the danger to the participant while not engaged in active instruction even though the assumption of risk doctrine generally prevents coach liability absent reckless or intentional behavior.
At issue was whether a martial arts instructor may be held liable for negligence during a sparring demonstration with a student that resulted in spinal injuries to the white-belt beginner. Those injuries were of such severity as to produce a $46 million jury award.
The majority acknowledged the 2003 California Supreme Court case of Kahn v. East Side Union High School District—in which the high court held that a coach will only be found to breach a duty of care, given the assumption of risk involved in most sports contexts, if he intentionally or recklessly injures a player—but pointed to language in that decision which leaves open the possibility of applying a simple negligence standard under “different facts.”
Justice Jose S. Castillo authored the opinion, filed Tuesday and joined in by Justice Julia C. Kelety, affirming a judgment in favor of the injured student. He wrote:
“We do not dispute Kahn ‘generally’ bars negligence liability against instructors….It is only in an exceedingly limited category of cases like this one—where an instructor is not engaged in active instruction and does something to unreasonably increase the risk of injury to one of their students—that negligence liability applies instead.”
Acting Presiding Justice Joan K. Irion dissented, citing a possible chilling effect on a coach’s ability to teach by engaging with the student in the sporting activity.
Sparring Injury
The dispute arose after Jack Greener filed a complaint against M. Phelps Inc. and Michael Phelps, operators of a Brazilian jiu jitsu (“BJJ”) club at which the plaintiff suffered a fractured neck and a spinal cord injury while sparring with his instructor and co-defendant, Francisco Iturralde. Greener alleged that Iturralde was negligent in attempting a roll-over maneuver that caused the injuries.
During trial, and on appeal, the parties disputed the scope of the duty of care owed to Greener and the applicable jury instructions. According to California Civil Jury Instruction (“CACI”) 471, the doctrine of primary assumption of risk generally absolves sports instructors of a duty of care to their students over injuries incurred, with two exceptions.
Under what Castillo calls “option 1,” a sports instructor owes a duty if he or she intentionally or recklessly causes the injury or, under “option 2,” if he unreasonably increases the risks over and above those inherent in the activity.
Castillo noted:
“The Directions for Use tell the court to use [option 2] if the sports instructor’s alleged ‘failure to use ordinary care increased the risk of injury to the plaintiff, for example, by encouraging or allowing the plaintiff to participate in the sport or activity when the plaintiff was physically unfit to participate or by allowing the plaintiff to use unsafe equipment or instruments.’….The Directions for Use further provide the court should ‘also give CACI No. 400’—the ordinary negligence instruction—’[i]f the second option is selected.’ ”
San Diego Superior Court Judge James A. Mangione gave the “option 2” and ordinary negligence instructions and accompanying verdict forms. After the jury found in favor of Greener, the defendants appealed, arguing instructional error.
No Active Instruction
Castillo said:
“While sparring with Greener during a BJJ class, Iturralde gave no demonstration or active instruction. Instead, he acted more like a student coparticipant than an instructor when he immobilized and executed a series of maneuvers on Greener. But as an instructor with superior knowledge and skill of BJJ, Iturralde was differently situated from other students, and thus he can—and we conclude should—be held to a different standard. There was evidence Iturralde knew he had created a situation posing heightened risk to Greener’s safety beyond that inherent in BJJ and had the time and skill to avoid that risk, yet he consciously chose to proceed. The risk an instructor will perform a maneuver on a student after immobilizing the student and knowing it will injure the student is not an inherent risk of BJJ sparring. On these facts, we conclude the trial court elected the proper standard—option 2 of CACI No. 471—under which Iturralde could be held liable.”
He continued: “We emphasize the narrowness of our holding, which applies option 2 of CACI No. 471 to combat or grappling sports when an instructor engages in the activity while not providing any demonstration or instruction. Consistent with Kahn, option 1 continues to apply to the vast majority of cases in which a sports instructor is alleged to have injured a student.”
Noting that the defendants point to cases in which a student was instructed by his coach to perform actions that resulted in injury, Castillo remarked:
“All these cases…involve situations in which the instructor was acting as an instructor. That is not so here….During BJJ sparring, no one is demonstrating a move, instructing another to perform a move, or discussing moves or errors as they occur. While a regular coparticipant would be held to the intentional or reckless standard in this context under the primary assumption of risk doctrine, an instructor—responsible for the safety of their students and possessing superior knowledge and skill—is differently situated. It is not an inherent risk of BJJ sparring that an instructor will perform a maneuver on a student knowing the student will be injured. On these facts, Iturralde can appropriately be held to the increased risk standard.”
Public Policy
The justice opined that “applying the increased risk standard on this record has no adverse public policy implications.” He reasoned:
“[N]either the trial court’s nor our decision eliminates any move as inherently unsafe or endorses a ‘rule that would hold a coach liable anytime he could have performed any move in a less dangerous way.’ Nor do we adopt a novice exception or ‘water[ ] down’ the standard of care….
“Rather, we apply the already extant increased risk standard to the facts ‘in line with the underlying policy’ of primary assumption of the risk….Although an instructor does not ‘always owe[ ] a duty of care to his or her students and thus become[ ] an insurer of their safety’…, the primary assumption of risk case law is clear that instructors appropriately can be held liable under a different standard of care than coparticipants….[T]here is a difference between ‘a master of the art’ who is ‘the instructor of the class’ engaging with a student on the one hand and a student interacting with another student on the other.”
He further suggested that “the Judicial Council Advisory Committee on Civil Jury Instructions consider revising CACI No. 471 to be self-contained so as to…avoid the need to cross-refer to other instructions,” expressing concern that giving the ordinary negligence instructions created “the possibility of confusion by providing the jury with a second, differently worded statement of the elements needed to find [liability].”
Irion’s Dissent
Irion wrote:
“In my view, the majority’s approach is unsound because it defines a sport instructor’s duty of care in a manner that chills hands-on instruction through coparticipation in inherently dangerous sports, even though such instruction may be crucial in teaching students to perform safely and avoid injury to themselves and others.”
Disputing the narrowness of the majority’s opinion, she commented:
“According to my colleagues, their opinion will have only a narrow practical impact. They believe that the standard set forth in Kahn will ‘continue[ ] to apply to the vast majority of cases in which a sports instructor is alleged to have injured a student.’….However, that assumption about the opinion’s likely impact fundamentally misapprehends an instructor’s role in teaching many common sports. Consider other inherently dangerous sports where the instructor delivers hands-on instruction by coparticipating in a sport: a football or soccer coach performs a tackle in a manner that injures a student; a basketball coach inadvertently hits a student’s head with a ball during a drill; a cheerleading coach causes injury to a student while demonstrating a launch or a catch. In each of those examples, as here, the risk of injury is inherent in the instructor’s participation.”
The jurist continued:
“[T]here is no doubt that our Supreme Court would apply the primary assumption of the risk doctrine if a coparticipant in any of those activities was in the position of the instructor….But under the majority’s approach, in any of those instances, if an injury occurs while an instructor is involved as a coparticipant in the same sport, the primary assumption of the risk doctrine does not apply, and the instructor will be liable for an injury resulting from a negligently performed move.”
She added:
“That cannot, and should not, be the law. The existence and scope of duty is a question of law for the court, based on policy considerations….If an ordinary negligence-based standard applies to hands-on instruction in an inherently dangerous sport, the scope of instruction in those sports will suffer.”
The case is Greener v. M. Phelps Inc., 2024 S.O.S. 25.
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