Cultural study on law

Geoffrey Sasso

Cultural Essay



                                                    The Role of The Martial Artist in the Legal System



Martial arts is an activity that provides the participant with an effective means of self-defense when threatened with bodily harm. In the world of law, a person who uses force to defend himself opens, what lawyers like to call, the “floodgates of litigation.” One cannot simply use a method of self-defense and walk away without being expected to justify his/her actions. As with any activity involving harm to oneself or others, there is a plethora of laws and regulations that currently govern. The use of self-defense (especially by a martial artist) opens up two of the three courts of law. A martial artist may be sued civilly and criminally. The third area of law, being equity, is not an issue here. First, to be discussed by this essay is the area of criminal liability.

The difference with a criminal suit and civil suit is that in a civil suit an individual or individual is being sued by another individual or group of individuals in order to recover damages resulting from the defendant’s actions. A criminal suit is when the state sues a person for their criminal actions. Therefore, it is very common for a person to be forced to defend himself both civilly and criminally seeing as how these are two separate courts. Likewise, even if a person is sued in criminal court, he or she may have the civil charges dropped against them.

Generally the use of self-defense, when being examined in a case for criminal liability, is governed by stating that courts allow, “the use of necessary and proportionate, non-deadly force in self-defense anytime the victim reasonably believes that unlawful force is about to be used on him.” (Hobart). In applying this general law to the facts of the situation in a criminal case, one takes much the same route as would be taken when applying it to facts in a case of civil liability. However, since civil liability is a much broader area of the law with a larger number of potential causes of action, this essay will deal mostly with that type of analysis. The line of reasoning is similar for both criminal and civil areas of liability so only civil will be discussed. Please keep in mind that the general rules of law are the same but that only the intentional tort causes of action are in play in a criminal suit.

Civil liability is examined in much the same way as that of criminal liability. Before examining the laws pertaining to self-defense, one must understand the specific area of law in which this essay attempts to explicate. Self-defense is known, in the legal realm, as an Affirmative Defense to an Intentional Tort. An Intentional Tort is a cause of action one individual has against another for which a court may award civil liability. Take for example the tort of Battery. Battery occurs when an individual acts with intent to cause a harmful or offensive contact to another and such contact results. Thus, desiring to hit an individual in the face and then doing so opens one up to liability for battery. An Affirmative Defense is a defense that a defendant in a civil case may present as a way of justifying his/her actions. The defendant is telling the court, “I committed battery, but I had a legally justifiable reason to do so.” Affirmative defenses run the gamut from contributory negligence, to the running of the statute of limitations to self-defense.

Self-defense is recognized as an acceptable affirmative defense to the intentional torts of Battery, False Imprisonment and Assault. It is also used to a lesser degree to prevent trespass to land and chattels and conversion of chattels. In order to use self-defense, one must feel that the used force is reasonably necessary and proportional to the force exerted upon the intended victim.

Self-defense encompasses many types of force each governed by proportionality. The force exerted in self-defense must be proportional to the force used upon the original victim. Thus, an individual cannot shoot an attacker who merely intends to strike the plaintiff with his fist. If the force exerted in defending oneself is greater than the actual or perceived threat then the defending individual may be liable for a cause of action of battery. A good way of weighing proportionality is to say that force can only be exerted until aggression has ended. Any force used afterwards is battery. Therefore, if a martial artist throws an assailant and the assailant lies still, the defender cannot break the attacker’s arm. However, if the attacker attempts to continue to strike the defender or is attempting to stand up, force may still be exerted without a great fear of being liable for battery upon one’s attacker. An old kung fu adage is applicable to this law. It states, “Walk away rather than argue; “Argue rather than fight: Fight rather than harm; Harm rather than maim; Maim rather than kill; and kill only as a last resort.”

Deadly force can only be used in cases involving serious bodily harm or threat of death. If the victim perceives any one of these risks, he or she is justified in using deadly force. A victim may also use retaliation to prevent an attempted sexual assault since there is no proportional level of force in this particular instance to combat the aggression.

Take for example the case of, Katko v. Briney 183 N.W.2d 657 (Iowa S.C. 1971), In this particular case, a man had knowledge of trespassers repeatedly entering his abandoned barn and stealing some of his antique mason jars. After several instances, he placed a spring gun strap equipped with a loaded shotgun in the barn. Upon opening the door to enter the bar, the plaintiff trespassers had their legs injured by the shotgun trap. The court ruled that plaintiff farmer exercised force that was out of proportion to the harm that he was in danger of suffering from the trespass. He was found to have committed battery due to his force exceeding that allowed by law. Similarly, a farmer was found liable for battery when he shot and injured several boys stealing his watermelons. Brown v. Martinez 68 N.M. 271, 361 P.2d 152. (N.M. S.C. 1961). He was in no danger of harm and courts have found that self-defense’s application in the preservation of personal property is minimal if not nil. However, were the thieves to have been armed with guns also and in a position to harm the farmer, his force would have been both proportional and legal.

This case mirrors what a martial artist may undergo. If an experienced martial artist is attacked and attempts to defend himself, he may be liable for civil and criminal charges if his defense is taken too far. When evaluating whether force exerted upon defendant attacker is proportional, six factors are weighed in order to determine both the degree of force necessary and whether this force was justified in the light of the circumstances.

The first factor to evaluate is the attacker’s reputation. A recent case involved a known bully breaking into the home of a young boy whom he had a history of terrorizing at school. The bully was much larger than the victim and was prone to physically harm the young boy. The bully taunted the boy, in his home, with harm. The bully followed the boy from room to room and eventually cornered the young boy, which prompted him to attack him with a loaded shotgun. His leg was injured and he then sued his intended victim for battery. The bully’s reputation was considered, as were the other five factors. Seeing as how the bully had a history of terrorizing the boy, the necessary level of force to be used in defense was found to be greater. Self-defense was deemed to be reasonable and in light of the reputation and size differences especially, the action taken in self-defense was reasonable.

The second factor is the belligerence of the attacker. If the attacker is drunk, high on substances or simply in a fit of rage, this will be considered in light of the defender’s use of force. These factors may put the plaintiff in fear of increased harm since at this point there is no telling what type of attack will occur.

The third factor is the size and strength differences. This came into play in the aforementioned case with the bully. A smaller victim may not be able to fight on even ground and defend himself proportionately. Therefore, his or her defense may need to be more severe so as to discourage the larger and presumably overconfident aggressor.

Fourthly, we must examine whether the attacker engages in an overt act. If the attacker shows an intent to harm the plaintiff, he or she may use self-defense as a preemptive strike so as to prevent injury.

Fifthly, it must be considered whether serious bodily harm is threatened to the victim. This factor assumes that self-defense is necessary and serves only to show whether the force exerted need be deadly. As we have previously learned, serious bodily harm allows for deadly force in order to prevent injury.

Finally, one need consider whether retreat on he part of the plaintiff is feasible. In examining this factor one need weight the circumstances of the area. If a plaintiff is at his residence no reasonable retreat is required and proportional force may be used. However, if plaintiff is in any other area besides his/her domicile, a reasonable effort of retreat is necessary before proportional force is exerted or plaintiff risks a cause of action of battery being levied against him/her. A minority view of several jurisdictions tells us that one may retreat but it is not required. However, a lack of an attempt to retreat in any area does not automatically preclude the use of proportional self-defense.

In addition to a martial artist being held liable for a cause of action for battery if self-defense is used out of proportion, a martial artist may also be held liable for a cause of action of Negligence. In establishing a prima facie case of negligence, one need consider five elements. These elements are Duty, Breach, Actual Harm, Cause in Fact, and Legal/Proximate Cause. Two types of negligence exist of which a martial artist need only concern himself with one. The two types are misfeasance and nonfeasance. A martial artist’s skills will only come into the area of misfeasance negligence due to this being brought about their improper action. Misfeasance constitutes falling below the duty the requirement of negligence. The duty aspect of a cause of action for negligence should be especially of concern to an experienced martial artist.

A person who holds a duty to another person is held to the Reasonably Prudent Person standard. However, a separate standard exists for individuals possessing of special knowledge or professionals. Thus, a neurosurgeon would be held to a higher standard of care in a hospital setting than would an ordinary individual. Take for instance, the case of Hill v. Sparks 546 S.W.2d 473 (Mo.App.1976). Here defendant was driving an earth scraper. Driving this earth scraper was defendant’s job, thus he would be deemed to hold greater experience when it came to the operation of the aforementioned machine when compared to an average individual. In the case at hand, defendant’s sister was riding upon the side of the machine and fell off when defendant attempted to climb a hill that the machine was incapable of mounting. Defendant negligently ran over his sister after she fell from the vehicle. Defendant was deemed to have breached his standard of care since he was regarded as being a professional in the machine’s operation. Likewise, if an individual possesses special knowledge of a situation (eg: knowledge that a certain maneuver will likely break a person’s arm), that individual is subject to being held to a higher standard than the RPP standard.

Martial artists are seen as possessing special skills and, if they attain high enough rank, are seen as professionals. Their skill level elevates them beyond the RPP standard and gives them the subjective test of standard encompassing their superior knowledge and expertise. Thus, a martial artist who attempts to defend himself and in doing so seriously injures his attacker, is more closely scrutinized than a regular individual not in possession of the special skills. Take for instance this hypothetical;

“Billy Blackbelt (his given name) is walking to the Warrior’s Emporium in Baltimore, Maryland to buy himself a new gi after his old one was torn by an overzealous randori partner named Adam. Carelessly, Billy attempted to make this journey at night and alone. Billy also wore his new Prada leather jacket and a shiny platinum Movado watch. On his way to find a taxi, Billy is grabbed from behind by an assailant and threatened with a gun to his kidney area. Billy, being a 2nd level Brown Belt, attempts to execute a gun defense technique that he learned in class. Billy spins around and manages to trap the revolver on the defendant’s trigger finger. Defendant panics that Billy has seen his face by spinning around and squirms to escape. In doing so his finger inadvertently pushes the trigger causing the gun to fire into his leg.”

Now, take the same hypothetical and change two facts. Let’s make Billy a non-martial artist and instead of Billy attempting a technique, let us have him simply strike defendant in the face and attempt to take the gun from his attacker. The same result occurs. Defendant is accidentally shot in the leg. However, in hypothetical #1, Billy would most likely be found to have breached the standard of care that he owed to his assailant. Billy, as a martial artist, would know of the potential effects of his technique. Thus, he owes his attacker a responsibility to refrain from conduct that would not only be non-proportional but also would have a likelihood of escalating into serious harm. The second Billy, however, would simply be defending himself and the shooting would be deemed an accidental result of his actions. The shooting in the first case scenario may very well have been an accident. However, the burden of proving it was an accident would be near impossible in light of the court’s finding of Billy possessing skills enabling him to harm the defendant in this manner if he so desires.

In addition to negligence for the actions, a senior martial artist may also be found liable for the actions of his/her students under the doctrine of respondeat superior. Respondeat superior is used to sue a master when his servant/employer engages in an action that makes him liable to a third party. A recent case involved a driver and a bulldozer operating getting into an argument. The bulldozer operator responded to his being insulted by trapping the plaintiff in the bucket of his bulldozer and dumping him into a snowdrift. Defendant’s actions were found to be employment related since the argument arose from his doing business of clearing the roads and he used a tool provided to him from his master/employer to injure the plaintiff. Thus, the bulldozer operator and his employer were found to be liable to the plaintiff. Bardonaro v. General Motors Corp., 2000 WL 1062188 (Ohio App. 2000).

Therefore, a martial artist who uses his techniques in the manner prescribed to him by his instructors (being self-defense) would be acting within the bounds of his master/servant relationship. Since the actions are taught to him by the sensei and also further the cause of his continued education in the martial arts, the instructor is subject to liability.

However, senseis and other martial arts instructors are not totally liable for all of their student’s use of the art. A provision of respondeat superior provides a safe harbor to employers from liability for the intentional torts of their employees. An example of this is a case, which involved a radiologist taking sexual advantage of an incapacitated female patient at a hospital. The hospital was not deemed to be liable for this intentional tort of sexual assault seeing as how the hospital had no method of foreseeing the tort and it was in no way work-related. Lisa M. v. Henry Mayo Newhall Memorial Hospital 12 Cal.4th 291 (CA Supreme 1995).

Thus, if a McDonald’s worker stabs a customer with a knife after no provocation, McDonald’s corporation itself will more than likely not be liable for his actions. Unless of course this policy of stabbing customers was encouraged and part of the furtherance of business. Intentional torts are not a foreseeable part of most master/servant relationships. Thus, if a brown belt decides to test out his new techniques by assaulting homeless men on the street, his instructor would not be liable seeing as how it is an unforeseeable intentional tort. Unfortunately, if the instructor is unable to adequately show that the student’s actions were unforeseeable, liability may still be imposed for an intentional tort despite the general rule.

In the first hypothetical Billy Blackbelt would more than likely be a co-Defendant with his sensei and both would be faced with equal possibility of liability. This is not to say that a martial arts master will always be subject to liability for his/her student’s actions. It is merely another possibility that all martial artists should be aware of as a result of the possession of their skills.

Thus, it seems apparent that martial artists sacrifice a great deal for their skills. As a class, martial artists are held to a higher standard than normal individuals. They are in possession of skills that enable them, if they so desire, to very easily injure another individual. Already, without adding in martial arts expertise as a factor, self-defense to intentional torts is an extremely shaky area of the law. An innocent plaintiff in one situation may be made into a defendant through the simple act of trying to avoid bodily harm. The purpose of this is to avoid overzealous protection. However, one is usually not considering proper proportionate levels of force when in a situation requiring self-defense. By making a martial artist a third party defendant as opposed to an average individual, one adds in a new factor of expertise in self-defense which can open up many roads of civil liability for a person who simply was attempting to defend themselves with his/her own expertise. As with any situation, whether one is trained in the martial arts or not, proper discretion is required for an individual to be able to use his abilities without infringing upon the fundamental rights of another.


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