Assume that you are a first year associate at Macchio, Norris, and Chan, a law firm specializing in estate planning. One of the senior partners, Jackie Chan, has approached you about a case that involves the son of one of the firm's major clients, Daniel LaRusso. Daniel's adult son, Jean Claude, who is 28 years old, was recently injured during a martial arts match at the Cobra Kai dojo, a martial arts school located in White Plains, New York. The injuries to Jean Claude's hip, have already required two separate surgeries. The surgeries have not been successful, and Jean Claude is scheduled to have a total hip replacement. As a favor to LaRusso, Chan prepared and filed a law suit on behalf of Jean Claude against the Cobra Kai dojo. The dojo was properly served with a summons and a verified complaint, and they are not contesting service. The verified complaint contains sworn allegations of fact. The cause of action is negligence. Last night, Cobra Kai's attorneys served a motion for summary judgment, returnable in Westchester County Supreme Court on October 29, 2023. The motion seeks dismissal of the complaint for failure to state a state a cause of action in negligence. The narrow legal grounds for the motion to dismiss is that Cobra Kai alleges that, as a matter of law, Jean Claude assumed the risk of the injury he received, under the legal doctrine called "primary assumption of risk." They also argue that Jean Claude waived his right to sue Cobra Kai for his injuries when he signed a "waiver of liability" form, which they contend is fully enforceable in this case and not void as against public policy.

Chan actually knows little to nothing about negligence and personal injury law, but does know a lot about summary judgment. Cobra Kai has conceded that all the facts in the verified complaint are true. If the court grants the motion, Jean Claude's case against Cobra Lai would be dismissed. In determining the motion, the court is required to draw all favorable inferences from the conceded facts in favor of the non-moving party - in other words, in this case, in favor of Jean Claude. Chan wants to know your prediction about whether the motion for summary will be granted or denied, for either or even both of the narrow legal grounds, and has asked you to write an in-house informational legal memo answering that question.

The conceded facts in the pleading are as follows.¹ Cobra Kai dojo is a martial arts school. It offers classes to beginner, intermediate and expert students enrolled in the school. Children under 18 who enroll in the school require parents to sign a consent form as well as a separate waiver of liability form, which would free the martial arts school from any civil liability for injuries that may occur at the school. Adults who enroll sign the an application that contains a "waiver of liability" clause. The clause states that be signing the application, the applicant agrees "the martial arts academy is insulated from civil liability for any injuries sustained during martial arts class, other than those injuries caused by the negligence of Cobra Kai or one of its employees."

On October 12, 2022, Jean Claude applied to enroll in one of the school's mixed martial arts programs. He submitted a written application, which required him to answer a series of questions. One question asked which type of program Jean Claude wished to attend based on a self-assessment of his skills. The choices were "Beginner," "Intermediate," or "Experienced." Jean Claude checked off the box next to "Beginner." There was also a question that asks applicants if they have had any experience with martial arts courses in police or other uniformed services, or a branch of the armed forces." Jean Claude wrote the following: "I joined the United States Marine Corps in 2015. As part of my Marine training, I was instructed in the Marine Corps. Martial Arts Program (MCMAP) in methods of hand to hand combat. I was instructed in "savate" or "French kickboxing," a technique that uses hands and feet as weapons of combat." When ask to list a current employer, Jean Claude wrote that he worked full time for Vandolay Industries in their latex sales department, and had worked there from "2020 to the present time." He signed the form, and checked a required box indicating Jean Claude had read the "waiver of liability" clause and agreed to its terms.

As he requested, Jean Claude was assigned to a class in the beginner program. His first class was on October 19, 2022. He attended beginner classes twice a week, every week. During these classes Jean Claude practiced "sparring" with other beginner students. This sparring involved the students "punching, kicking and fighting." As part of the martial arts training, Jean Claude "fought" other students in something called "the Cage." The Cage is described as an "octagonal shaped ring, surrounded by fencing over six feet high." Jean Claude fought in "the Cage" with beginner students on at least eight occasions.

On January 6, 2023, Keisuke Miyagi, an instructor at the academy who teaches beginner and intermediate courses, approached Jean Claude. Miyagi had taught Jean Claude on at least twelve prior occasions, including during six of Jean Claude's "cage" fights. Miyagi said he believed Jean Claude was ready to move up to the intermediate class. Jean Claude asked Miyagi if he was "sure" Miyagi believed Jean Claude was ready. Jean Claude also asked Miyagi whether Jean Claude would be "safe" in the intermediate class. Miyagi replied that Jean Claude "should not worry." Miyagi also told Jean Claude that the intermediate students had the "skills and techniques to control themselves and not hurt another student, especially a brand new intermediate level student." Following this conversation, Jean Claude agreed to move up to the intermediate level class.

On January 20, 2023, Jean Claude went to his first intermediate class. However, instead of the planned class, the students were told that they would be fighting in "the cage" that day. Jean Claude told Miyagi that he would fight in the "cage" only if he had an opponent Miyagi believed Jean Claude could trust. Miyagi selected "thin" intermediate student, Owen Chase. Jean Claude put on all the required protective gear and entered the ring to "fight" Chase. He and Chase sparred and fought in front of the other intermediate students for less than five minutes. Jean Claude tapped on the floor, a cue signaling his "surrender" to the opponent. Chase immediately stopped and he and Jean Claude bowed to one another. Jean Claude exited the cage unharmed. He sat to watch the other students fight. Four matches took place without incident. Then intermediate student, Adonis "Donnie" Creed entered the cage. He fought three other students, as Jean Claude watched. Each of these students surrendered within a minute of beginning the fight with Creed by tapping on the floor. None were injured.

Mr. Miyagi then asked Jean Claude if he wanted to "fight" Creed. Jean Claude agreed and entered the cage once again. Jean Claude sparred with Creed for nearly three minutes without incident or tapping the floor. Then, Creed began to use several martial arts techniques Jean Claude had never seen in the beginner class. Jean Claude still never tried to tap on the floor to surrender. Then, about five minutes after they started, Creed performed what was understood by the intermediate students watching the match as well as Mr. Miyagi to be a "takedown maneuver" used only by the most experienced intermediate students. This maneuver was not part of any beginner class instruction. Creed grabbed Jean Claude around the waist with both legs and squeezed tightly. Miyagi got up and attempted to go into the "Cage" to stop the match. As Miyagi got up, Jean Claude squirmed to get out of the tight hold. As he did, he heard a loud crack. Jean Claude fell to the ground, wincing in pain. Mr. Miyagi called for an ambulance. The professional ambulance attendants carefully placed Jean Claude on a stretcher and took him to the hospital. There is no evidence that there was any medical malpractice. Jean Claude was x-rayed and examined at the hospital by Dr. Saw Bones, a orthopedic surgeon. Jean Claude was diagnosed with a stress fracture to his hip. He suffered extensive pain and his medical expenses are still mounting. As a veteran, his medical bills are paid in full by the United States government.

In their motion papers, the attorneys for Cobra Kai argue they did not violate "any duty of care" owed to Jean Claude, and that Jean Claude "assumed the risk" of the injury he received when he voluntarily joined the martial arts school. They also argue Jean Claude waived his right to sue the school for his injuries when he signed the application for martial arts instruction that contained the "waiver of immunity" clause.

¹The facts in quotation marks are taken directly from the verified complaint signed by Jean Claude himself.