Avoiding Lawsuits Starts With Knowing Your Negligence Potential
As any industry evolves, the number and seriousness of lawsuits related to that industry expands to an equal degree. Blame the law of averages: As more people utilize a new product or service, the odds that people will be injured improve.
It happened with automobiles, hospitals, computers, and now the fitness industry. Wellness-center construction is at an all-time high, while the services offered inside these sparkling new centers — from personal training to group cycling to weight-loss counseling to post-injury rehabilitation — have seen unprecedented expansion. Add to the burgeoning number of exercisers the medical realities involved in serving the aging baby-boom generation, and you've got a prescription for fitness-related injuries and litigation.
Over the past few years, I have had the opportunity to study risk assessment in many fitness and wellness facilities around the country. During this time, it has become apparent that there are a number of areas of recurring liability in many facilities. Lessening the risk of liability in these areas could easily be accomplished if more attention were paid and very minor changes were made.
Listed below are the most common areas, in descending order, of potential liability in fitness centers:
• Premises Liability. Without a doubt the most common, and easiest to change, is premises liability. Look around you. Is there a dumbbell lying on the floor? Is there a water leak, causing slippery conditions? Are shower temperatures adjusted improperly? Is electrical cord placement a potential trip hazard? Are weight stacks improperly secured? Is equipment not being used in the manner for which it was intended?
Mitigating premises liability is a two-step process — be aware of potential problems, and fix them. Fail to do this and your members are at risk on your premises — and you're at risk of paying damages to them.
• Improper Maintenance or Supervision. This is a common source of injury to members. Heavy freeweights left on racks for the next person to remove, for example, results in many dropped weights and injury. This can be avoided by making sure members know to remove weights after use and having a staff member check the equipment on a regular basis and remove any weights that remain on the racks.
Are seats and handles on selectorized and cardiovascular equipment tight and in place? Are chains and belts properly and regularly serviced? Are staff members on hand to explain proper use of equipment? This last question is vital — improper use of equipment can lead to a negligence claim if a member becomes injured through the improper use. Observe the "duty to warn" principle when you or your staff members see equipment being misused, and stay educated on improper weight-machine moves.
• Failure to Warn. Every person who enters a fitness facility should have to sign a release of liability or waiver of liability. It cannot be emphasized enough how important these forms are. When a member enters your facility, he or she has the option of participation. Upon choosing to utilize your facilities, the member should be made aware of all possible dangers that may result from his or her actions on the premises.
The release of liability waiver has, as of this writing, been upheld in courts across the country. This does not mean, however, that it can be relied upon to protect owners in every situation. As more lawsuits arise over negligence of fitness center personnel, waivers may become a question of law rather than a question of fact — meaning that the issue of whether the document exists will be outweighed by its application to the particular situation. Therefore, it is far more important to address maintenance and supervision issues than to simply draw up a waiver form.
• Failure to Conduct a Medical History. Generally, less than 50 percent of fitness centers require members to fill out a medical history form. This is a practice that absolutely must be part of your initial assessment of each member. Attach the medical history form as part of the release-of-liability waiver, or have a personal trainer meet individually with each member in order to gather this important information. Without knowledge of a member's medical history, fitness professionals should never prescribe an exercise program. Be aware of your clients' past illnesses, medications, surgeries, injuries and various other medical complaints. If you fail to inquire into this information, the individual trainer and facility owner can be found negligent if a client becomes injured as a consequence.
• No CPR or Emergency Response System in Place. With the increase in cardiac rehabilitation programs, and the addition of automatic external defibrillators in fitness centers, staff members must be trained in CPR, emergency-response techniques and use of AEDs. These systems should be in place for and routinely practiced by all personnel. Liability claims made over improper or untrained emergency-response systems have included several serious injuries and even deaths.
• Lack or Insufficient Training of Staff. Lawsuits are filed regularly against alleged untrained personnel who cause injury to a member. You can argue this one until you are blue in the face, but in an era in which there is no standard accreditation in the fitness industry, sufficient training is a hard thing for personal trainers and staff members to prove. If the actions of one of your employees lead to the injury of a club member, chances are the club will be paying a settlement to avoid a lawsuit. Make sure your personal trainers and all fitness staff are educated and certified.
• Non-Accredited or Uneducated Personal Fitness Trainers. Personal trainers are at greater risk of potential liability than any other fitness-center employee. Because of the lack of one accepted national standard for these professionals, it is nearly impossible to attach a standard of care to which they must adhere. In essence, anyone familiar with fitness equipment can call him- or herself a "personal trainer," and this is the critical area in which fitness centers and the general public need to become more informed. Trainers work one-on-one with clients and engage in close contact during workout sessions and in consultations and fitness assessments. The potential for injury resulting from negligence or improper conduct is immense, and only an educated and trained fitness professional should be working in this capacity. It is also important to regularly monitor your professional staff to stay informed of any questionable situations.
• Unauthorized Nutritional Supplement/Dietary Counseling. Trainers and professional fitness staff are often tempted to prescribe to a member or client a particular diet or dietary supplement. It is important to note that unless the fitness professional is a registered dietitian or nutritionist, he or she is not authorized to engage in one-on-one nutrition counseling. Although it may seem harmless to counsel a client on the benefits of fresh fruits and vegetables, dietary counseling should be kept separate from most fitness training regimens. A thorough medical history should be conducted prior to any discussion of nutritional intake and supplement prescription. A personal fitness trainer without education and certification in nutrition counseling engaging in dietary prescriptions is a magnet for liability.
Because this is not a complete list of potential negligence issues, it will be useful for facility owners to consult with an attorney or risk-management professional — particularly one who specializes in fitness-center or personal-trainer negligence — about ways to avoid lawsuits.
Relieve yourself of liability before it happens. Become proactive in the day-to-day operations of your facility and you will spare yourself, your professional staff and your members the heartache of injury, damages and litigation.
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Ithaca College Athletics and Events Center