Arkansas Martial Arts Waiver Enforced without the Term “Negligence”

By Doyice Cotten

6900691840_df045838be_mPedro Trujillo suffered an injury while training at TK Martial Arts Academy and died two days later. It was alleged that Pedro was injured when two teaching assistants threw him to the ground numerous times while under the supervision of the instructor – who knew Pedro’s head was striking the floor.

The plaintiff (Trujillo v. TK Martial Arts Academy, 2015) alleged negligence claiming a breach of the duty of ordinary care, specifically: “failure to adequately instruct Pedro on how to be knocked to the floor without contacting his head, failure to cease the training after Pedro voiced complaints, failure to provide adequate floor padding and protective headgear, failure to warn of risks, and failure to adequately supervise the training.”

The defendants moved for summary judgment based on the waiver signed by Trujillo. The trial court granted summary judgment in favor the martial arts academy.

The waiver signed by Pedro reads in part:

*** Participants registering in recreational programs and activities however, must recognize the inherent risks of injury associated with such activities or programs.

Please read this form carefully and be aware that in participating in any program(s) or activities at TK Martial Arts, you will be waiving and releasing all claims for injuries you might sustain arising out of the activities or program(s).
As a participant in the program(s) at TK Martial Arts, I recognize and acknowledge that there are certain risks of physical injury and I agree to assume the full risk of any injuries, including death, damages or loss regardless of severity which I may sustain as a result of participating in any and all activities connected with or associated with the program.
I agree to waive and relinquish all claims I may have as a result of participating in the program against the TK Martial Arts and its officers, agents, servants and employees.
I fully release and discharge TK Martial Arts and its officers, agents, servants and employees from any and all claims of injuries, including death, damage or loss including loss of or damage to personal property which I may have or which may accrue to me on account of my participation.
I further agree to indemnify and hold harmless and defend TK Martial Arts and its officers, agents, servants and employees from any and all claims from injuries, including death, damages, and losses sustained by me or arising out of, or in any way associated with the activities of the program. [Bold added.]

Many claims in the appeal, including ambiguity, were not addressed because they were not brought up in the trial. One claim that was addressed was that the term “negligence” was not included anywhere in the waiver. The court stated that under Arkansas law
• Exculpatory contracts are to be strictly construed against the party relying on them.
• To be enforceable, the contract must clearly set out what negligent liability is to be avoided.
• When we are reviewing such a contract, we are not restricted to the literal language of the contract, and we will also consider the facts and circumstances surrounding the execution of the release in order to determine the intent of the parties. Id.


The court stated that while the waiver did not include the term “negligence,” it did release liability for “all claims from injuries, including death….” It went on to say that this is limited to injuries that are rationally associated with the dangerous nature of the activity. It pointed out that the waiver recognized that there were inherent risks of injury and subsequently upheld the summary judgment ruling of the lower court supporting the waiver.

Risk Management Take-Away

So, while some cases in the past have required the use of the term “negligence,” Arkansas courts no longer require the specific use of the word. This was previously indicated in another recent case (ver Weire v. Styles, 2013). Regardless, as the author has stated many times at this site, best practice is to always specify that the signer is waiving liability for injuries resulting from the “ordinary negligence” of the provider.

Photo Credit:  Thanks to Craig Hadley on Flickr for the photo.