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From eskrima-admin@martialartsresource.net Wed Oct 14 17:15:37 2009 Return-Path: Received: from tarsus.bollow.ch (tarsus.bollow.ch [82.195.230.222]) by plus11.host4u.net (8.11.6/8.11.6) with ESMTP id n9EMFaO08290 for ; Wed, 14 Oct 2009 17:15:36 -0500 Received: from tarsus.bollow.ch (localhost [127.0.0.1]) by tarsus.bollow.ch (Postfix) with ESMTP id 82F19B2821E; Thu, 15 Oct 2009 02:49:09 +0200 (CEST) Date: Thu, 15 Oct 2009 02:48:21 +0200 Message-ID: <20091015004821.11743.2733.Mailman@tarsus.bollow.ch> From: eskrima-request@martialartsresource.net Subject: Eskrima digest, Vol 16 #224 - 4 msgs X-Mailer: Mailman v2.0.13.cisto1 MIME-version: 1.0 Content-type: text/plain To: eskrima@martialartsresource.net Errors-To: eskrima-admin@martialartsresource.net X-BeenThere: eskrima@martialartsresource.net X-Mailman-Version: 2.0.13.cisto1 Precedence: bulk Reply-To: eskrima@martialartsresource.net X-Reply-To: eskrima@martialartsresource.net List-Unsubscribe: , List-Id: Eskrima-FMA discussion forum, the premier FMA forum on the Internet. 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See the Filipino Martial Arts (FMA) FAQ and the online search engine for back issues of the Eskrima/FMA digest at http://MartialArtsResource.com Mabuhay ang eskrima! Today's Topics: 1. Basis for asssertion part 3 (Marc Denny) 2. Waivers (Ollie Batts) 3. Re: Waivers (Tyler Murphy) 4. RE: Waivers (Kevin Kelly) --__--__-- Message: 1 From: "Marc Denny" To: Date: Wed, 14 Oct 2009 04:42:29 -0700 Subject: [Eskrima] Basis for asssertion part 3 Reply-To: eskrima@martialartsresource.net Woof Stephen: You wrote: > Negligence and waivers are covered the first year of law school in Torts > I. > While the Canadian and US legal systems are different, both developed from > English law, so a lot of the definitions are similar. As you are probably > aware, a tort is a breach of duty directly resulting in a foreseeable > injury. > In this case, if the student proved the instructor was negligent in the > preparation for sparring, the equipment used, or in the pairing of > sparring > partners, then he probably didn't have too much difficulty proving > foreseeable > injury as a direct result. Again, waivers are appropriate for avoiding > liability from accidents, but it's pretty well established waivers don't > excuse negligence. Ummm , , , not to my knowledge; indeed quite the contrary. Negligence is often precisely what waivers are designed for-- precisely so that one is not litigating the distinction you suggest between an accident without negligence and one caused by negligence. (Gross Negligence presents additional questions.) Part of the analysis can include the nature of the activity in question. For example, here in California the jurisprudence is quite strong in enforcing liability waivers when it comes to "dangerous activities". Marc/Crafty Dog --__--__-- Message: 2 From: Ollie Batts Date: Wed, 14 Oct 2009 12:19:35 +0100 To: eskrima@martialartsresource.net Subject: [Eskrima] Waivers Reply-To: eskrima@martialartsresource.net Waivers aren't worth the paper they are written on, not in the UK at least, as you cannot sign away your rights. What they might do, is make the injured party think that there is nothing they can do if they get injured. But once in the hospital they'll probably find lots of literature, or be given verbal information, that it is not the case, however. Even the law relating to Health and Safety in the workplace demands that business owners have a 'duty of care' for anyone who enters their premises - by whatever means, and at any time during the day or night. In other words, if you are a Garage owner and you lock up at night, but have left an inspection pit with its boards up, and someone breaks in and falls into that pit and is injured, you can be sued. And before you all start jumping up and down in protest at such a law, consider this: What if the person who enters your premises is confused, drunk, mentally sub-normal, etc., and they somehow manage to get in to your premises? Do they deserve to fall down an inspection pit, break their back, and end up in a wheelchair for the rest of their lives perhaps? And if you answer 'yes' to that, then you are at least not a very nice person methinks! We do not ask people to sign waivers when they attend our classes and/ or seminars. And neither do I sign waivers when I attend other people's. In my opinion, they are an immoral attempt at a cop-out from responsibility. That's why all our instructors are fully vetted, fully qualified, and fully insured. Ollie Batts --__--__-- Message: 3 Date: Wed, 14 Oct 2009 06:41:53 -0700 (PDT) From: Tyler Murphy Subject: Re: [Eskrima] Waivers To: eskrima@martialartsresource.net Reply-To: eskrima@martialartsresource.net " What if the person who enters your premises is confused, drunk, mentally sub-normal, etc., and they somehow manage to get in to your premises? Do they deserve to fall down an inspection pit, break their back, and end up in a wheelchair for the rest of their lives perhaps? And if you answer 'yes' to that, then you are at least not a very nice person methinks! Ollie Batts" That is definatly a UK thought process. Most times in the US if you are somewhere you are not suppose to be and something happens it's your own fault. Something I have always considered being an adult is personal resposibility. But, when you get socialist nanny states that kind of person responsibility goes out the window as history shows. Tyler --__--__-- Message: 4 From: "Kevin Kelly" To: Subject: RE: [Eskrima] Waivers Date: Wed, 14 Oct 2009 10:36:26 -0400 Reply-To: eskrima@martialartsresource.net There are so many cases in us litigation history that would really make you mad then, consider the guy who kept getting his apt. broken into. Always through the same window. After a few times, the guy set up a shotgun triggered to the window, the sash rises, the gun goes off, pointed at the window. Guy breaks in again, and is shot. Not only was he prosecuted in criminal courts, but also held liable in civil court. I don't agree with it, just noting that it's not restricted to uk. We in the states have our own blind justice. As for waivers, I'm no lawyer, but regardless of the intent of the waiver, negligence is not covered, and neither are all injuries. Think about it, you could go on an outdoor agility course, sign the waiver, and then the tree is struck by lightning and the rope bridge collapses. You were injured on someone's property. No malice or negligence, but on their property nonetheless. I'm sure a civil court would award you damages. Or, what if you signed a waiver at a mlm gym, and while sparring, got a good shot in. your opponent then found a weapon and assaults you. Your instructor knew the person was unstable, had a criminal background, and history of mental instability, but allowed the bout. Does the waiver you signed exonerate his negligence? It really has to be decided on a case by case basis, but school owners should pay their insurance premiums. Kevin Ollie Batts" That is definatly a UK thought process. Most times in the US if you are somewhere you are not suppose to be and something happens it's your own fault. Something I have always considered being an adult is personal resposibility. But, when you get socialist nanny states that kind of person responsibility goes out the window as history shows. Tyler _______________________________________________ Eskrima mailing list, 2,700 members Eskrima@martialartsresource.net Copyright 1994-2009: Ray Terry and Martial Arts Resource Standard disclaimers apply. Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License. Subscribe or Unsubscribe: http://eskrima-fma.net --__--__-- _______________________________________________ Eskrima mailing list Eskrima@martialartsresource.net http://martialartsresource.net/mailman/listinfo/eskrima Subscribe or Unsubscribe: http://eskrima-fma.net Old digest issues @ ftp://ftp.martialartsresource.com/pub/eskrima Copyright 1994-2009: Ray Terry, MartialArtsResource.com, Sudlud.com Standard disclaimers apply. Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License. Remember September 11. End of Eskrima Digest