On appeal from Superior Court of New Jersey, Law Division, Union County.
[172 NJSuper Page 107] Plaintiff, a college student, instituted suit to recover damages for personal injuries he received while participating in the activities of a karate club of which defendant was the instructor in charge. The injury was received when plaintiff, who had
about 20 hours of instruction, was kicked in the head by a more advanced student with whom plaintiff was engaging in a "free fight" which was being staged only for demonstration purposes. He appeals from a judgment of dismissal granted at the close of plaintiff's case.
The allegation of negligence was:
Defendant failed to properly instruct and supervise the karate class and in particular the plaintiff. Defendant was negligent in instructing the plaintiff who was a complete novice to participate in a karate fight when he should have known that plaintiff did not have sufficient experience to so participate.
The applicable rule for measuring defendant's conduct is set forth in Restatement, Torts 2d, § 299A at 73 (1965):
Unless he represents that he has greater or less skill or knowledge, one who undertakes to render services in the practice of a profession or trade is required to exercise the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.
In In re Suspension of Heller , 73 N.J. 292, 308-309 (1977), the rule was held applicable to a pharmacist. In Milliken v. Woodward , 64 N.J.L. 444, 448 (Sup.Ct.1900), such rule was held applicable to fire insurance brokers. Certainly it is applicable to the conduct of those teaching karate.
In Sanzari v. Rosenfeld , 34 N.J. 128 (1961), the court discussed the requirement of establishing an applicable standard of conduct in cases where a jury is not competent to supply the standard by which to measure a defendant's conduct, as here.
Negligence is conduct which falls below a standard recognized by the law as essential to the protection of others from unreasonable risks of harm. In the usual negligence case, it is not necessary for the plaintiff to prove the standard of conduct violated by the defendant. It is sufficient for plaintiff to show what the defendant did and what the circumstances were. The applicable standard of conduct is then supplied by the jury which is competent to determine what precautions a reasonably prudent man in the position of the defendant would
have taken. 2 Harper & James, Torts , § 17.1, pp. 963-964 (1956). "[T]he jury [thus] must formulate an unformulated community standard of conduct and match the defendant's acts against it." Morris, "The Relation of Criminal Statutes to Tort Liability," 46 Harv.L.Rev. 453, 454 (1933). In the ordinary dental or medical malpractice case, however, the jury is not competent to supply the standard by which to measure the defendant's conduct. Since it has not the technical training necessary to determine the applicable standard of care, it cannot, without more, form a valid judgment as to whether the defendant's conduct was unreasonable under the circumstances. Therefore, ordinarily when a physician or dentist is charged with negligence in the treatment of a patient, the standard of practice to which he failed to adhere must be established by ...