Question 036: Lawsuit protection

I noticed that your exemplar Rip-off Agreement" seems to pan any school that attempts to insulate itself from liability for damages or injury arising out of the use of the school, "including those arising from negligence on the part of ROYA." I must totally disagree with that insinuation. There is nothing wrong or untoward about a school attempting to limit its liability from lawsuits, especially in today's overly-litigious climate. Unfortunately, many honest businesses, like many local TKD schools, are simply trying to share the benefit of their knowledge, passion and joy of learning and studying TKD with everyone they can. What they don't always realize, however, is that behind every smiling face could be the next lawsuit (and plaintiff's lawyer) ready to tear the school down. To do that, the claimant will argue everything is wrong with the school, from the instructor to the front door. Thus, as a lawyer, I completely advocate the inclusion of the above-referenced language in any company's disclaimer, especially on behalf of a reputable and honest TKD school owner.

Reply

Martial arts are physical endeavors and, as such, accidents will happen and injuries will occur. Therefore, I certainly agree that martial art organizations and schools must protect themselves against frivolous or exaggerated lawsuits, especially those that arise from participating in normal martial art activities. However, in the agreement that I presented as an example, the organization is attempting to free itself from any liability, even from injuries associated with its own negligence.

The red highlighted areas of the example are areas that should be of concern to potential members of the organization, and I underlined areas that seemed excessive. While I think the liability release section of any agreement should be of concern to signers, it does not mean I think the section is unneeded.
From what I understand about the law, an organization cannot free itself from liability due to its own negligence by requiring its members to sign a release to that effect. Any organization that requires such a stipulation would be trying to free itself from any liability, even from unorthodox, dangerous teachings, an unsafe facility, unsafe or unhealthy conditions, or incompetent, unqualified instructors.

The stipulation would mean the organization, in an effort to discourage any type of student lawsuit, was attempting to mislead students into believing they have no legal recourse if they are injured due to organization negligence. While such a stipulation may be useful in discouraging lawsuits, any organization that requires such a stipulation appears to me to be trying to mislead, and thus rip-off, its members.

 

Reader reply

Thanks so much for the thoughtful and comprehensive response. Understand that I am writing as a Pennsylvania lawyer who practices under Pennsylvania law. As such, I am unfamiliar with the applicability of that particular language under other states (I think some states regard it as contrary to public policy), but I can tell you that there are exceptions to everything. And as a lawyer, my job is often tied to finding exceptions where none readily appear. To that end, the language that I focused on, while seemingly invincible, also has its limitations. Any school that is grossly negligent (or fraudulently trying to cover up its own derelictions) will likely find no comfort at all in that language. Thus, as a lawyer, I strongly recommend clients who are comfortable with the language to use it.

Now, as to the rest of your wonderful example, I can say that the remainder of the agreement would set off red flags from any discerning lawyer or hopefully, potential TKD consumer. It frightens me to think someone would actually try to pawn that off on anyone.