Date: 09-05-2012
Case Style: Tom Escue v. Triton Fight Center Ltd., Co. dba TRiton Fight School
Case Number: CJ-2011-1160
Judge: Mary Fitzgerald
Court: District Court, Tulsa County, Oklahoma
Plaintiff's Attorney: Marlin Ray Davis, Sutton, Davis, Staggs, P.C., Tulsa, Oklahoma
Defendant's Attorney: Douglas M. Borochoff, Gibbs, Armstrong, Borochoff, Mullican & Hart, P.C., Tulsa, Oklahoma
Description: Tom Escue sued Triton Fight Center Ltd., Co. dba TRiton Fight School, Piet Wilhelm and Alex Wallace on negligence theories.
COMES NOW Tom Escue, for himself individually and for an4 On behalf of Dillon Escue, his minor child, and amends the orginal Petition in this case for the purpose of adding and joining Alex Wallace as a defendant to this lawsuit and hereby state and re-state their causes of action against the Defendants, Triton Fight Center LTD, Co., (hereinafter “Triton”), Piet Wilhelm, (hereinafter “Wilhelm”), and Alex Wallace (hereinafter “Wallace”), as follows:
1. Defendant Triton is a martial arts school.
2. Defendant Wilhelm is the owner, operator and manager of Triton. In addition, he and Wallace are instructors at Triton.
3. Plaintiffs are Tulsa County residents that attended an “introductory” class at Triton, and during this class Dillon Escue was a student of Defendants and was directly supervised by Defendants.
4. During his introductory class, Plaintiff Dillon Escue was negligently instructed by Defendants to participate in a full contact fighting match with Wallace wherein Wallace struck Dillon with such force as to break bones in Dillon’s leg.
5. Defendants were negligent in directing Dillon to participate in full contact fighting exercises with a far more experienced and trained fighter, Wallace, and Defendants knew or should have known that Dillon wasn’t properly and sufficiently qualified, skilled or trained such as to defend himself against Wallace so as to prevent serious bodily injury.
6. Defendants negligently failed to inquire and determine the skill level of Dillon before determining what level of training would be safe for him to participate in. Defendants knew or should have known Dillon was not sufficiently experienced and trained such as to protect himself against Wallace in a full contact match. Defendants were negligent in allowing and directing Dillon to engage in full contact fighting without knowing and without having first ascertained Dillon’s skill level at full contact fighting.
7. Defendants conduct was reckless and grossly negligent and in total disregard of their student, Dillon, such as to warrant the imposition of punitive damages against each of them.
8. The negligence of the Defendants is joint and several.
9. As the direct and proximate result of the Defendants’ joint and several and negligent conduct, Dillon unnecessarily suffered broken bones in his leg, and Plaintiffs incurred substantial past and future medical expense, incurred substantial past and future wage loss, caused to suffer past and future pain and emotional distress, caused to incur substantial past and future expense related to prosthetic devices and treatment related to same, and was caused serious, debilitating and painful physical and mental injuries.
10. At all times material herein the Defendants were andlor are each the agents, servants, employees, representatives, of one another and therefore each joint severely and jointly liable for the acts/omissions of the other either directly or indirectly because of vicarious relationships they maintain or due to their direct negligence for improper acts and/or omissions including negligent hiring, supervision, and/or training.
11. As a direct and proximate result of the Defendants’ negligence, the Dillon has and will in the future suffer both special and general damages, and have and will in the future incur medical, and life care and other expenses, necessary to care and treat Dillon.
12. As a direct and proximate result of the Defendants’ negligence, the Plaintiffs has and will in the future suffer both special and general damages, and have and will in the future incur medical, vocation and life care and other expenses, necessary to care and treat Plaintiffs.
CAUSE OF ACTION - TRITON
13. Plaintiffs re-alleges and incorporates herein by reference each and every allegation above and further allege and state:
14. As the direct and proximate result of the negligence of Triton, alone and in combination with the negligence of the other Defendants, Dillon suffered personal injuries and has and will in the future incur special and general damages, including but not limited to medical, vocational and life care expenses all in the amount of excess of $10,000.00.
15. The acts of Defendant were willful, wanton, reckless, and malicious, and further show a complete and deliberate indifference to, and conscious disregard for, the safety, rights and life of Dillon. The wrongful acts of the Defendant herein created a life threatening situation and in fact nearly or almost in fact cost Dillon’s his life. Therefore, punitive damages should be assessed against Defendant and in favor of Plaintiffs in an amount in excess of $10,000, and there should be no “cap” with regard to the amount of punitive damages that can be awarded against the Defendant.
CAUSE OF ACTION AGAINST WILHELM
16. Plaintiffs re-alleges and incorporates herein by reference each and every allegation above and further allege and state:
17. As the direct and proximate result of the negligence of Triton, alone and in combination with the negligence of the other Defendants, Dillon has suffered personal injuries and Plaintiffs will in the future have to incur special and general damages, including but not limited to medical, vocational and life care expenses all in the amount of excess of $10,000.00.
18. The acts of Defendant were willful, wanton, reckless, and malicious, and further show a complete and deliberate indifference to, and conscious disregard for, the safety, rights and life of Dillon. The wrongful acts of the Defendant herein created a life threatening situation and in fact nearly or almost cost the Dillon his life. Therefore, punitive damages should be assessed against Defendant and in favor of Dillon in an amount in excess of $10,000, and there should be no “cap” with regard to the amount of punitive damages that can be awarded against the Defendant. CAUSE OF ACTION AGAINST WALLACE
19. Plaintiffs re-alleges and incorporates herein by reference each and every allegation above and further alleges and states:
20. As the direct and proximate result of the negligence of Triton, alone and in combination with the negligence of the other Defendants, Dillon suffered personal injuries and Plaintiffs will in the future incur special and general damages, including but not limited to medical, vocational and life care expenses all in the amount of excess of $10,000.00.
21. The acts of Defendant were willful, wanton, reckless, and malicious, and fhrther show a complete and deliberate indifference to, and conscious disregard for, the safety, rights and life of Dillon. The wrongful acts of the Defendant herein created a life threatening situation and in fact nearly cost the Dillon his life. Therefore, punitive damages should be assessed against Defendant and in favor of Plaintiffs in an amount in excess of $10,000, and there should be no “cap” with regard to the amount of punitive damages that can be awarded against the Defendant.
WHEREFORE, Plaintiffs prays for judgment against the Defendants, jointly and severally, in a sum in excess of $10,000.00 in actual damages and in excess of $10,000.00 in punitive damages, and for such other relief as deemed fair and equitable by the jury, together with such other and further relief which is deemed by the Court to be fair, just and equitable.
DEFENDANTS FIRST ANSWER AND AFFIRMATIVE DEFENSES Comes now Defendant ALEX WALLACE (Herein “WALLACE” or “Defendant”), pro se, and submits this Answer and Affirmative Defenses to Plaintiff’s Complaint referenced herein.
1. Defendant admits that Triton is a martial arts school.
2. Defendant admits that Defendant Wilhelm is owner and operator of Triton Fight School.
Defendant WALLACE denies that he was an instructor at Triton at the time of the incident referenced in Plaintiff’s complaint. Defendant was a student of the school in the same standing as Plaintiff, and did not become a recognized instructor in the school until many months after incident.
3. Defendant lacks sufficient knowledge to determine whether Plaintiff is a resident of Tulsa county, but nonetheless is willing to admit.
Defendant lacks sufficient knowledge to determine whether Plaintiff was participating in an “introductory class at Triton” and Defendant WALLACE therefore denies the allegation.
Plaintiff was not “directly supervised” by Defendant WALLACE. Plaintiff was “directly supervised” by Defendant WILHELM. Defendant WALLACE therefore denies the allegation.
4. Again, Defendant lacks sufficient knowledge to determine whether Plaintiff was participating in an “introductory class at Triton”, and Defendant WALLACE therefore denies the allegation. Defendant denies any knowledge that Plaintiff was “instructed” by anyone to “participate in a full contact fighting match with WALLACE”. Plaintiff was certainly not “instructed” by Defendant WALLACE to do anything. Defendant WALLACE therefore denies the allegation.
Defendant WALLACE is not a medical expert and lacks sufficient knowledge to determine whether Plaintiff ESCUE was struck with “with such force” as would result in breaking of bones in Plaintiff’s leg. Therefore, Defendant WALLACE denies the allegation.
5. Defendant lacks sufficient knowledge to determine whether he was “a far more experienced fighter” than Plaintiff, and Defendant WALLACE therefore denies the allegation.
Eased upon Plaintiff’s representation and presentation of himself, Defendant denies the allegation that “Dillon wasn’t properly and sufficiently qualified, skilled or trained such as to defend himself against WALLACE so as to prevent bodily injury”.
6. All allegations in paragraph 6 are denied by Defendant WALLACE. Additionally, Plaintiff’s complaint alleges negligence, but has attached no proof of negligence to the complaint, and Defendant WALLACE therefore denies all such allegations of negligence and demands strict proof thereof.
7. All allegations in paragraph 7 are denied by Defendant WALLACE. Additionally, Plaintiff’s complaint alleges reckless disregard and negligence, but has attached no proof of reckless disregard or negligence to the complaint, and Defendant WALLACE therefore denies all such allegations of reckless disregard or negligence and demands strict proof thereof.
B. Defendant lacks sufficient information or knowledge or expertise to respond to such an allegation as contained in numerical paragraph B of Plaintiff’s Complaint” and Defendant WALLACE therefore denies the allegation.
9. Defendant WALLACE is neither a medical expert, nor a financial expert, and lacks sufficient information or knowledge or expertise to respond to such allegations as contained in numerical paragraph 9 of Plaintiff’s complaint, all of which are therefore denied.
Given the nature of martial arts training, and the warnings issued to Plaintiff prior to and during his training, and given the protective gear Plaintiff employed, and given the Waiver Plaintiff signed which clearly stated the risks associated with such training, Defendant WALLACE therefore denies that Plaintiff’s injury was “unnecessary” - Plaintiff’s complaint alleges substantial medical expenses related to the alleged injury, but has attached no proof of such expenses to their Complaint, and Defendant WALLACE therefore denies the allegation and demands strict proof thereof.
Plaintiff’s complaint alleges substantial actual wage loss, but has attached no proof of such wages, or their loss, to their Complaint. Defendant WALLACE therefore denies the allegation and demands strict proof thereof.
In light of Plaintiff’s actions subsequent to the alleged incident, Defendant WALLACE denies that Plaintiff has suffered any mental injuries.
lO.Defendant WALLACE denies that at time of alleged incident he was either an agent, servant, employee, or representative of Defendant TRITON FIGHT SCHOOL, or Defendant PIET WILHELM.
11. Defendant WALLACE is not a medical expert and so cannot confirm or verify Plaintiff’s claim of substantial past and future medical expenses or other damages, nor life care expenses. To the extent that a response is required, Defendant WALLACE is without sufficient knowledge to determine whether Plaintiff has required, or will require such future expenses, and denies the allegation and demands strict proof thereof.
12. Defendant WALLACE is not a medical expert, nor a financial or occupational advisor, and so cannot confirm or verify Plaintiff’s claim of substantial past and future vocational expenses or other damages, nor life care expenses. To the extent that a response is required, Defendant WALLACE is without sufficient knowledge to determine whether Plaintiff has required, or will require such past or future expenses, and denies the allegation and demands strict proof thereof. PARAGRAPHS 13 through 18 allege actions against a party other than Defendant WALLACE, and Defendant WALLACE in his Answer is not qualified or authorized to make either answer for them, or speak on their behalf, and makes no attempt to do so.
19. Numerical Paragraph 19 of Plaintiff’s complaint makes no specifically unique allegation against Defendant WALLACE, but reiterates and enjoins the previous allegations made against all Defendants jointly in numerical paragraphs 1 through 12, and allegations made against Defendant TRITON in paragraphs 13 through is, and against Defendant WILHELM in paragraphs 16 through 18. Defendant WALLACE let’s stand his previous answers already delivered to allegations submitted in paragraphs 1 through 12 of this Answer.
20. Paragraph 20 of Plaintiff’s Complaint appears to address multiple Defendants severally in the action, and Defendant WALLACE lacks sufficient information or knowledge or expertise to respond to such allegations as contained in numerical paragraph 20 of plaintiff’s Complaint against Defendant TRITON in combination with other defendants, including Defendant WALLACE, Defendant WALLACE is not a medical expert and so cannot confirm or verify Plaintiff’s claim of substantial past and future medical expenses, nor the need for prosthetic devices or treatments, or vocational or life care expenses, and such, Plaintiff has attached to their complaint no evidence of such expenses, and as such, the allegations are denied and Defendant demands strict proof thereof.
21. Defendant WALLACE denies that any actions were “wanton”. Plaintiff has attached to their complaint no demonstrable evidence to that effect, and Defendant WALLACE therefore denies the allegation and demands strict proof thereof. Defendant WALLACE denies that any actions were “reckless”. Plaintiff has attached to their complaint no demonstrable evidence to that effect, and Defendant WALLACE therefore denies the allegation and demands strict proof thereof. Defendant WALLACE denies that any actions were “malicious”. Plaintiff has attached to their complaint no demonstrable evidence to that effect, and Defendant WALLACE therefore denies the allegation and demands strict proof thereof. Defendant WALLACE denies that any actions were of “complete disregard”.
Plaintiff has attached to their complaint no demonstrable evidence to that effect, and Defendant WALLACE therefore denies the allegation and demands strict proof thereof.
Defendant WALLACE is not a medical expert and is not in a position to determine whether a “life threating” condition arose. Given that injuries (specifically including broken bones) are a common injury in such training that are not life threatening, Defendant therefore denies the allegation and demands strict proof that a “life threatening situation” arose.
AFFIRMATIVE DEFENSES
First Affirmative Defense
Defendant WALLACE asserts all affirmative defenses available under law, including but not limited to; 12 O.S. 2008 CC)
Second Affirmative Defense
Plaintiff’s Complaint fails to state a claim upon which relief may be granted against Defendant WALLACE.
Third Affirmative Defense
Defendant WALLACE has committed no negligent or intentional tort because there was no malice on the part of the Defendant, and no intent to cause harm, and because Defendant satisfied all duties to inquire as to Plaintiff’s suitability to engage in the training he presented for, and applied for, and asked to participate in, at the school. Defendant WALLACE acted in good faith towards Plaintiff and in the exact same manner as he would any other fellow student at the school.
Fourth Affirmative Defense
Defendant was not negligent to his duty to Plaintiff because Plaintiff was presented with, and explained to, and signed a waiver and release of liability, stating his acknowledgement of the risks involved, very specifically, the risk of broken bones. Plaintiff further stated his intention to engage in voluntary mutual combat, and identified himself as qualified and willing to do so. Fifth Affirmative Defense
Plaintiff is not entitled to relief simply on the grounds that an injury occurred in the course of his willing and voluntary participation in an athletic activity in which injuries are common, and which knowledge of the potential risk of harm is well known, and were made expressly evident to him from the beginning.
Sixth Affirmative Defense
Plaintiff suffered no intentional infliction of emotional or physical harm. The defendant’s actions were not extreme, egregious, outrageous, wanton or reckless. Defendant’s actions were strictly in compliance and accordance with the actions undertaken by, and subjected to, all students at TRITON equally, and Plaintiff was not afforded any unusual or extraordinary treatment.
Seventh Affirmative Defense
Negligent infliction of emotional distress is ambiguous, and not clearly defined by Plaintiff.
Eighth Affirmative Defense
Plaintiff consented to bodily harm by intentionally, willingly, and knowingly applying to participate in an athletic activity in which injuries of the nature he received are very possible in the routine, normal execution of that training, even to persons in perfectly good health and without any extenuating medical conditions.
Ninth Affirmative Defense
Brazilian Jiu Jitsu and Kick Boxing are, arguably, the most rigorous and physically demanding forms of martial arts training that can be engaged in. The harm suffered by the Plaintiff was a reasonably foreseeable consequence of his choice to participate in such a rigorous, high impact combat fighting sport.
Tenth Affirmative Defense
without assuming the burden of proof, Plaintiff signed a waiver before engaging in any training, in which Plaintiff made, whether knowingly or unknowingly, misrepresentation of his medical conditions. Defendant WALLACE has every reason to believe that if Plaintiff had disclosed his medical condition, he would have been denied training at TRITON. And, barring even that, if Defendant WALLACE, specifically, had known of this medical condition, he himself would have refused to engage with Plaintiff. But Plaintiff did not present any reason to believe that he had any medical conditions which would jeopardize his safety, and having failed to do that, no further duty to inquire was required of Defendant.
Eleventh Affirmative Defense
After Defendant TRITON and Defendant WILHELM had,
• Made inquiry into Plaintiff’s previous medical conditions, and training, and fighting experience, and,
• Had inquired into and accepted Plaintiff’s willingness to participate as a mutual combatant, and,
• Presented to, and received back a signed Waiver and Release of Liability form that clearly states, in the very first paragraph that numerous types of injury could result from such training - even specifically naming broken bones in the very first paragraph, and,
• After Plaintiff signed this Waiver, making no disclosure of any medical condition which might make him susceptible to the type of injury which he received, and,
• After Plaintiff described and presented himself as a “Red Belt Fighter for Apollo’s Karate School”, and,
• After Plaintiff engaged in much bragging about his skills, training, experience, rank, and achievements as a “Red Belt Fighter for Apollo’s Karate”,
Defendant denies that any further duty to inquire was reasonably upon him, or even possible. Should he have inquired whether Plaintiff was lying?
Twelfth Affirmative Defense
Plaintiff presented himself, at his own discretion and volition, and applied to the school for training; represented himself as a trained and experienced fighter; appeared on the scene already possessing the training gear and materials that an experienced fighter would possess; and expressed a willingness to engage in mutual combat with other students at the school, the personal risks of which were made plain to him ahead of time, and which risks he acknowledged and accepted, affixing a signature thereto attesting to his knowledge, understanding and acceptance of these risks. Defendant claims that any duty to inquire was more than adequately met.
Thirteenth Affirmative Defense
Plaintiff has contradicted his own allegation that he was not sufficiently experienced or trained. Plaintiff did not present himself as an “inexperienced” or “untrained” combatant in the TRITON school, Plaintiff engaged in wanton bragging about his skills, training, experience, rank, and achievements as a “Red Belt Fighter for Apollo’s Karate”.
Plaintiff additionally presented himself at TRITON complete with the accoutrements of a trained, experienced, willing participant including, but not limited to head proteotion, mouth and teeth protection, hand guards, various padding and protections, leg and shin paddings that an experienced fighter would normally possess, along with much verbal expression of his training and achievements at Apollo’s Karate School prior to his engagement with either Defendant WILHELM, or Defendant WALLACE.
Defendant WALLACE had no cause to believe Plaintiff was anything other than what he represented himself to be: a trained, experienced, credentialed, mutual and willing combatant with a vast history of martial arts training, sufficient enough to have achieved the rank of Red Belt.
In fact, as a trained and experienced fighter, accomplished enough to have earned a Red Belt, Plaintiff is arguably more experienced and trained than the Defendant WALLACE, who at the time of this incident was a lower ranking, less experienced BLUE belt.
Fourteenth Affirmative Defense
Plaintiff’s complaint is incorrect in identifying Defendant WALLACE as an agent, servant, employee or representative of Defendant TRITON. Defendant WALLACE was, in fact, nothing more than a student of the school in the same standing as
Plaintiff, Fifteenth Affirmative Defense
Plaintiff has incorrectly alleged that he was “directly supervised” by Defendant WALLACE.
Plaintiff was directed, supervised and instructed during the specified match by Defendant PIET WILHELM, and was given specific instruction and advice prior to - and during - match against WALLACE by WILHELM. Defendant WILHELM during match was also directly supervising and instructing STUDENT WALLACE during match with STUDENT ESCUE (Plaintiff)
Sixteenth Affirmative Defense
Before the impact which resulted in the breaking of Plaintiff’s leg, Defendant WILHELM had three times given Plaintiff specific instruction on the use of techniques specifically designed to avoid such blows, and Plaintiff failed to follow those instructions, resulting in injury. Seventeenth Affirmative Defense
Plaintiff’s complaint that he was struck “with such force” as resulted in injury is ambiguous - Defendant WALLACE, as a student of Triton, struck Plaintiff with no unusual or extraordinary force, and with no more force than he had struck any of dozens of other students, or had himself been struck by other students, either before or after this incident. Defendant’s actions and force were normal, routine and typical of such training
Defendant WALLACE offers, in response, that his actions toward Plaintiff were of no material difference to the actions afforded all students of Triton Fight School, and, in fact, of any martial arts training school in the world.
Eighteenth Affirmative Defense
Plaintiff’s allegation that Defendant’s actions were either willful, wanton, reckless or malicious is completely without merit, and is asserted on no more evidence than Plaintiff’s personal subjective feelings.
To suggest that Defendant intentionally broke Plaintiff’s leg is ludicrous and a misrepresentation of •the facts. The Plaintiff was injured during a normal athletic sports training session, the risks of which are common knowledge, and which were made abundantly clear to him at the very beginning.
Plaintiff had failed to give any reason why he should be given unusual treatment other than that afforded all students equally at the school. nothing more than an athletic sports injury, and an accident Plaintiff possible, and in which Plaintiff readily, and freely participated with of the risks. or special This was was advised was full knowledge
Nineteenth Affirmative Defense
At the time of this incident, Plaintiff was wearing all protective gear that is required, including head, mouth, teeth, hand, foot and leg protective padding, the same as any and all other students, including Defendant WALLACE. That he sustained an injury is evidence not of excessive force, but of Plaintiff’s own medical condition which Defendants had no knowledge of, or reason to suspect.
Plaintiff’s allegation that his life was put at risk is ambiguous at best and is the result of his own misrepresentation of his skills and condition at least. just unique
Outcome: Dismissed without prejudice as to Alex Wallace on July 29, 2011.
COMES NOW the Plaintiffs and hereby dismiss their action against the Defendants Alex Wallace, Tnton Figh t Center LTD, Co and Piet Wilhelm, heiiin with prejudice to the filing of any future actions, and with all parties to bear their ownn attorney fees and costs.
Plaintiff's Experts:
Defendant's Experts:
Comments:
