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April 2023

Developments in Martial Arts Practice Liability: Greener v. Del Mar Jiu Jitsu Club

On March 28, 2023, the martial arts community at large, and the Brazilian Jiu Jitsu community specifically, was rocked by a $46,475,112 verdict handed down in a San Diego, California Superior Courtroom. The plaintiff, Jack Greener, a student of Del Mar Jiu Jitsu Club in San Diego, filed suit after he suffered catastrophic injuries in a November 29, 2018 incident during a sparring session (referred to by the Brazilian Jiu Jitsu community as a “roll” or “rolling”). The injury occurred while rolling with one of the gym’s instructors while training at what is known as an “open mat,” which is an unstructured block of time (usually weekly) where individuals are free to spar or practice techniques as they please. During this particular rolling session, Greener suffered a serious injury to his neck, which left him temporarily paralyzed from the neck down. Greener sued three defendants: Michael Phelps d.b.a. Del Mar Jiu Jitsu Club, M. Phelps, Inc., and the instructor, Francisco Iturralde (the “defendants”). After trial, the jury found that he did not assume the risk of the harm that he ultimately suffered. This verdict has drawn considerable attention to the martial arts community, creating serious concern that this lawsuit has illuminated previously-unexplored liability issues, increasing the risk of litigation arising from martial arts injuries.

Overview of Case

Greener filed his lawsuit in 2020, alleging that the defendants committed negligence and gross negligence. He had five core theories of liability: (1) his instructor locked Greener into an “extremely vulnerable position”; (2) he drove all of his weight into Greener’s neck; (3) the technique was alleged to be the single-most dangerous technique to take an opponent’s back; (4) there were many safer alternatives to take the back; and (5) this specific technique increased the risk of injury to Greener over and above the usual risk inherent to Brazilian Jiu Jitsu.

While there are a myriad of techniques in Brazilian Jiu Jitsu designed to choke an opponent or manipulate their joints, the technique at issue is not, in itself, a submission attack—it is not designed to make your opponent “tap out”. The technique’s purpose is to pry open an opponent’s defensive posture from a “hands and knees” position so that the attacking party can gain a more dominant position. For those readers having difficulty following, imagine that the engaging person is “piggy-backing” on the defensive person’s back while the defensive person is knelt on the ground. The engaging person initiates a somersault over the defensive person’s head/shoulder area while maintaining a tight grip on the defensive person’s torso. The force of the somersault causes the defensive person to roll with the engaging person, in such a way that space is created between the defensive person’s elbows and hips, briefly opening a space for the engaging person to reach a more dominant position (back control). This technique is sometimes referred to as the “Leo Vieira back-take” (referred to in this article as the “subject technique”).

The subject technique, from start to finish, usually takes no more than one or two seconds. In the Greener incident, Greener’s head became trapped between his instructor and the ground as the instructor initiated the somersault, preventing Greener from rolling with the somersault. This caused a significant amount of force and weight to be transferred onto Greener’s head and neck while he was in a compromised position.

The Jury’s March 28, 2023 Verdict

Two questions were posed to the jury regarding California’s primary assumption of risk doctrine.[1] The jury was asked to answer the question: “Was [Instructor’s] conduct a substantial factor in causing harm to Jack Greener?” Predictably, the jury answered yes. Greener was, in fact, sparring with his instructor when he was injured, and the instructor’s use of the subject technique caused Greener’s injury. A “yes” answer is the expected outcome for this question, based on these facts.

However, the jury was also asked “Did [Instructor] unreasonably increase the risk to Jack Greener over and above those inherent in Brazilian Jiu Jitsu sparring?” (emphasis added). Had the jury answered “no” in response to this question, the jury would have implicitly found that the subject technique did not fall outside of normal bounds of Brazilian Jiu Jitsu sparring and that Greener assumed the risk of the injuries he suffered by engaging in the sparring session. However, the jury answered yes, meaning that the jury believed that Greener did not assume the risk in this context. This was a focal point of the plaintiff’s case, and he used expert testimony to establish that the subject technique fell outside the normal bounds of sparring and was abnormally dangerous.

After answering these two questions in the affirmative, the jury returned a verdict of $46,475,112, based upon past medical expenses totaling $1,337,153, past and future lost earnings of $637,959, future medical expenses of $8,500,000, and non-economic losses (pain and suffering, loss of enjoyment of life, etc.) totaling $36,000,000.

Expert Involvement Swings The Balance And Opens The Door To A Largely Unexplored Scope of Liability

In the Greener case, the plaintiff’s expert focused on the subject technique that actually resulted in Greener’s injury and highlighted its abnormalities in order to argue that it unreasonably increased risk of injury. This narrow approach enabled Greener’s team to successfully argue that this technique in this particular position was abnormally dangerous and to extrapolate this finding to argue that the application of the subject technique unreasonably increased the risk over and above those inherent in Brazilian Jiu Jitsu sparring. Therefore, Greener’s team argued, Greener did not assume the risk of injury in this context. This testimony was bolstered by the facts developed in the case, including that the subject technique (though a recognized grappling technique) was not one taught at the defendants’ gym and all parties involved seemed to lack a familiarity with it.

The plaintiff’s success in the Greener case creates a significant question as to the scope of potential liability that might arise from martial arts-related injuries, as there is now a highly publicized roadmap in place for the plaintiffs’ attorneys to repeat. Further, although the severity of Greener’s injuries were a factor in the case, the attribution of liability is not directly linked to the injuries themselves. As noted above, liability attached because the subject technique was found to create an unreasonably increased risk beyond the risk inherent to sparring. That standard is equally applicable to other sparring accidents where the injuries are markedly less severe. In circumstances where those less-severe injuries result in the injured party incurring significant medical costs, it should be expected that some portion of those injured persons will explore their legal options, especially when the risk of longer-term medical debt, or lost wages associated with either a temporary or permanent inability to work due to injury, become reality.

Long-Term Implications

The question that persists through this review of the Greener case is whether or not this type of claim will become more commonplace. While this case may be an isolated occurrence, the value of the verdict has drawn considerable attention, rendering it more likely that copycat suits will follow. In the event of further lawsuits, gym owners must be prepared to litigate them.

In light of this verdict, gym owners and operators are concerned, and rightly so, about what this means going forward with respect to liability that they, their employees, or their students may face as a result of injuries that occur during Brazilian Jiu Jitsu training (or other martial arts training sessions). First, under no circumstances should gym owners and operators undersell or otherwise ignore the potential bodily harm that can result from martial arts training. Second, gyms should not hesitate to remove students or instructors from the gym who do not listen to instruction and follow the rules, regardless of belt rank. Similarly, when a student signs up with a gym, the gym should ask in writing if the student has ever been expelled from another Brazilian Jiu Jitsu school. If they have, the gym should ask why (and verify with the other instructor if possible). While it could be that this person had a personal disagreement with someone at that other school, it is important to check to make sure there was not a behavioral issue that might spell trouble for the gym and put its students at risk.

Concluding Thoughts

The long-term effects of the Greener case on the legal community and martial arts community are not yet known. While the commonly-held hope across the martial arts community is that this case is a unique occurrence, a more realistic expectation is that there will be an upward trend arising from martial arts-related injuries. Gym owners should prepare for this trend in advance by consulting with an attorney about what additional steps they can take to protect against liability and by making sure their insurance policies are up to date.

Comment from the Author

In addition to practicing law, Attorney Gabe D’Antonio (the author of this article) actively practices Brazilian Jiu Jitsu in Connecticut and holds the rank of purple belt. Attorney D’Antonio’s combined experience as a litigator and his long-time martial arts experience make him well-equipped to speak to the implications of this case and defend cases of this nature.

[1] See e.g. Judicial Counsel of California, Civil Jury Instructions, CACI No. 472 Primary Assumption of Risk - Exception to Nonliability - Facilities Owners and Operators and Event Sponsors

Product & General Liability

Gabriel G. D'Antonio

Product & General Liability