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The Defense Doctrine of Assumption of Risk: An Eleven Year Old Participating In Voluntary Judo Classes Assumed the Risk of Fracturing His Ankle

August 7, 2013 • Posted By Omar Chaudhry • Complex Litigation

In Morales v. Longview Academy of Extreme Martial Arts, (101999/11,) an eleven year old judo student sustained a fractured ankle when a senior judo student, who was older, taller, and heavier, performed a foot sweep, a judo technique, to the side of the minor’s foot.   The plaintiff argued that his injuries resulted solely from the defendant’s negligent supervision of the judo class. The court disagreed noting that the plaintiff failed to make out a case for lack of supervision.  The Supreme Court, Richmond County granted the defendant’s motion for summary judgment, thereby, dismissing the plaintiff’s complaint pursuant to CPLR 3212. 

The court reasoned that in a sports related personal injury case, assumption of risk dictates the amount of duty owed by the owner.  When the doctrine of assumption of risk is raised by defendants, the plaintiff can defeat the defense only by establishing that the defendant has failed to prove one of the required elements of assumption of risk.   The doctrine will not apply if the injury-causing defect or danger is not known or obvious to the plaintiff, is not an inherent risk of the sport, or if plaintiff was not capable of comprehending the risk due to age, experience, or mental capacity.  See Henig v. Hofstra University, 160 A.D.2d 761 (2d Dep’t 1990) (question of fact whether hole in field was typical of football field terrain), see also Deangelis v. Izzo, 192 A.D.2d (3d Dep’t 1993) (a beginner karate student did not necessarily assume risk of injury given the limited amount of instruction and preparation).  

Henig and Deangelis are distinguishable from the case at hand.   In Morales v. Longview Academy, the risk of injury was reasonably foreseeable and the plaintiff had six years of experience in judo.   The plaintiff, an eleven year old student, began judo training at the age of five.  During his six years of judo training, he also participated in mixed martial arts, kickboxing, and grappling, a form of combat wrestling.   Therefore, unlike a beginner judo student who typically has limited instruction and preparation, the plaintiff in Morales had six years of judo experience that exposed him to risks that were known, apparent, or reasonably foreseeable to him. 

As the court surmised, “by engaging in sport, a participant consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport that generally flow from such participation.”  The Supreme Court concluded that the father of the judo student should have known that his son could be injured while playing a contact sport.  Whenever a person participates in any sporting event, there is always a chance that the participant could be injured.  “The chance that the participant could be injured is a risk that he or she must be aware of before engaging in any sporting activity, especially the martial arts.”

The Supreme Court dismissed the plaintiff’s theories that the defendant was negligent in pairing the 11 year old with a senior judo student (age 17 and older) and in supervising the sparring between the two “mismatched” students.  The plaintiff argued that judo contestants participating in Regional, National, or International Judo Competitions are matched by age, weight class, sex, and belt rank.  Therefore, the defendant was negligent in pairing a minor judo student with an adult judo student.  The court disagreed and it relied on the affidavit of a defense witness, George Pasiuk, who has over fifty years’ experience in the field of judo.  In his affidavit, Mr. Pasiuk, testified that in the art of judo, it is permissible to pair a minor judo student with an adult judo student, and that there is no standard of care, rule, regulation, or accepted practice in judo to pair students on the basis of height, weight, age, or experience for the purposes of engaging in drills.  Therefore, defendant was not negligent in paring an eleven year old student with an adult judo student for the purposes of training.

Next, the Court turned to the plaintiff’s allegations of negligent supervision of the judo class.  Sensei Salvatore Croce had more than sufficient training to run the judo class, because the Sensei was a second degree black belt and a Master Champion.  The Sensei was standing on the side of the mat, observing the two judo students train on the mat.  In the normal course of training, the senior judo student performed a common maneuver, a foot sweep, which struck the plaintiff to the side of the foot and caused the plaintiff’s ankle to fracture.   The Supreme Court reasoned that even if the Sensei was standing right next to the two students, the Sensei could not have prevented the injury to plaintiff.  By pairing these two students together and watching them train, the Sensei did not unreasonably increase the risk associated with participating in judo training.  Therefore, the defendant was not negligent in supervising the judo class.

The justification of holding that the plaintiff has assumed the risks of judo is that in such high risk activities, the risks are obvious to an experienced plaintiff and inherent to the activity of judo.  The plaintiff willingly assumes the risk of injury as the price of participating in the activity of judo, and his only expectation is that the defendant exercise care to make the conditions as safe as they appear to be.  See Turcotte v. Fell, 68 N.Y.2d 432 (1986), see also Morgan v. State, 90 N.Y.2d 471, 484 (1997).   As the Morales court bluntly stated, “Judo is a contact sport.”  The Morales court concluded that the plaintiff, an experienced judo student, should have known of the possibility that he could be injured while participating in the judo class.