Nunberg, Noah

Journal of Asian Martial Arts
Volume 10, Issue 4, pp. 76-87 (2001)

Highly Recommended

Dr. Nunberg talks about some of the legal issues a martial artist may face in the training hall or on the streets. Part I of his article deals with the Civil Liability aspect.

Before examining Consent as Defense to Battery, Dr. Nunberg gives the legal definition of battery: "Intentional touching of another person's body without consent of the person touched." And further goes to clarify that "One may jokingly touch another person and commit battery." When martial artists train in a dojang, any contact between them will not justify a lawsuit as consent in these cases is implied as the students agree to practice together. The range of consent, which does not have to be verbal--a simple nod or silence may suffice--is usually controlled by the senior instructor.

Things change when one (martial artist or not) attacked, unprovoked, on the streets. This is where self defense comes in, legally permitting the attacked person to use "...reasonable force to prevent any harmful or offensive bodily contact." The extent of force used in self defense, writes Dr, Nunberg, has to be or "reasonably appears to be", necessary to avoid the perceived threat of injury. Depending on the geographical location in the United States, one can stand his/her "...ground and inflict serious bodily injury or death" (Courts in the South and West) if necessary or retreat when it is safe to do so (New York).

The next half of the article deals with Civil Assault, with assault, unlike battery, requiring no contact. "All this is required is the threat of such contact combined with the attacker's ability and opportunity to carry out such a treat immediately." Such a threat must cause the victim to doubt his/her physical security and victim must be aware of this threat. An awareness of the threat by the victim is essential to have a claim for assault. If the victim is struck from behind or when unconscious, the victim can claim battery (the pain from the blow) but not assault (threat of the blow).

Next, Dr. Nunberg compares Reckless and Negligent Misconduct: Negligence "implies unskillfulness or incompetence in one's actions" and is calculated by rules based on duties one has towards others in the society. Recklessness, on the other hand, is a "conscious course of action...."

Last, Dr. Nunberg presents the principle of "Assumption of Risk". Risk is assumed when one decides to participate in activities such as martial arts, or other contact sports. The skill and experience of the plaintiff are important in deciding if the plaintiff was right in, for example, suing his/her instructor for the injury incurred.

The article is very clearly written and easy to understand. Using hypothetical examples and actual cases, Dr. Nunberg clearly explains legal terms such as battery, assault, consent, recklessness, negligence, etc, in the context of martial arts training and self defense.

A must read for all martial artists!

Annotated by: Khawer Masood (December 2001)

Martial Arts:

Topics: crime | legal issues | self-defense |