The Appellate Division, First Department this week held, in Tadmor v. New York Jiu Jitsu, that the defendant should have been granted summary judgment on plaintiff’s claim arising from an injury to his left knee while sparring with another student in a mixed martial arts class.
The court held that plaintiff, who served in the Israeli army, fought in Lebanon, and was trained in krav maga, assumed the risk of injury as a matter of law.
Assumption of risk
generally applies where the plaintiff is injured while voluntarily participating in a sport or recreational activity, and the injury-causing event is a known, apparent or reasonably foreseeable consequence of the participation. The participant engaging in a sport or recreational activity consents to those commonly appreciated risks which are inherent in and arise out of the nature of the sport generally and flow from such participation. Further, the assumption of risk doctrine considers the appreciation of risk measured against the background of the skill and experience of the particular plaintiff.
While it was plaintiff’s first day in the advanced mixed martial arts class where he engaged in a sparring match with a “stockier” opponent,
plaintiff had participated in sparring sessions within the beginner classes for over a month and a half. Additionally, plaintiff’s experience included service in the Israeli army between 1997 and 2000, where he fought in Lebanon. In 2002, plaintiff received 10 weeks of combat training. This training provided instruction on hand-to-hand attacks and defense against armed and unarmed attacks. Between 2005 and 2009, plaintiff was employed as an air marshal, where his training included survival krav maga.
This was sufficient, held the court, to justify dismissal of plaintiff’s complaint on the ground of assumption of risk:
Given plaintiff’s extensive training plus his experience in mixed martial arts, he had a full appreciation of the risks involved in fighting, punching, kicking and grappling during the mixed martial arts sparring sessions. While the dissent asserts that the trainer’s assurances concealed or heightened the risk of injury here, it is important to note that plaintiff was exposed to the same risk of injury when he fought the tall thin student as well as the stockier student, i.e., before any alleged assurances were made. Plaintiff already lost a sparring match to the tall thin student in the advanced class. Then, he had an opportunity to observe the stockier student before entering the cage. His statements to the trainer noting the size difference between himself and the stockier opponent demonstrated his appreciation of the risk before sparring. Moreover, even though plaintiff asserts that the take down that allegedly caused his knee injury was an advanced maneuver, take downs were a reasonably foreseeable consequence of participating in the mixed martial arts sparring session.
The panel consisted of Hon. Friedman, Richter, Feinman, Gische, and Clark. All concurred, except for Feinman, who separately dissented.