The Need for Industry Standards
David L. Herbert
IN THE FIRST half of 2006, two court cases of significant interest to the fitness industry demonstrated the need for clear, uniform and evolving industry standards and guidelines on a number of issues. These cases, one from California and one from Florida, point out the need for the industry to take charge of its own future before government does by imposing regulations. These decisions are significant and important, and should be carefully reviewed by all facilities and their legal counsel.
A costly verdictThe first of these cases was brought by the estate of Alessio Tringali against L.A. Fitness International LLC. The case was filed in the circuit court for the 17th Judicial Circuit in and for Broward County, Fla. (Case No. 04-19840 ). The allegations of the complaint included the claims that the decedent was at the defendant's fitness center in Fort Lauderdale, Fla., and using a step machine, during which time he suffered a heart attack and died soon after. The plaintiff further alleged that the defendant had a duty to screen the decedent for adverse health conditions before activity, and to render aid to Tringali once he had a medical emergency. The plaintiff alleged that the defendant breached its duty to provide aid to him in the following particulars:
The defendant facility answered this complaint, denied the asserted claims and even denied the alleged standards of IHRSA that were cited in the plaintiff's filing. The answer to the complaint further set forth as affirmative defenses the following: that the plaintiff was guilty of his own negligence, which proximately contributed to his injuries and damages; that his condition was pre-existing; and that the Tringali family membership agreement, which the plaintiff apparently executed, barred his recovery. The defendant also asserted that the plaintiff assumed the risks associated with his activities, and that the complaint of the defendant should be dismissed.
On March 29, 2006, after only two hours of deliberation, a jury determined that the family of the decedent was entitled to $619,650 as a result of the claims tried in the case.
This case represents the first trial court verdict against a health and fitness facility for an alleged failure to have an AED present and utilized during a medical emergency, although there have been a number of cases previously settled by health and fitness facilities that involved similar allegations.
ACSM enters the frayInterestingly enough, at about the time that this case was filed and determined, the American College of Sports Medicine (ACSM) was in the process of developing new standards and guidelines for health and fitness facilities in its proposed third edition of a publication it first issued in 1992. The proposed standards, which have been subject to certain criticism and scrutiny by some industry segments, include a requirement that health and fitness facilities have an AED available for use in the event of medical emergencies. The ACSM standards, which have not yet been published, are due to be finalized this year, and should include a provision requiring the presence of AEDs in health and fitness facilities. Also at about the same time that the Tringali case was determined, a number of state legislatures proposed the adoption of laws requiring the presence and usage of AEDs in fitness centers. It seems rather clear, as a result of industry and state governmental activity, and especially in light of this recent Florida jury determination, that AEDs, in the years ahead, will become part of the standard of care owed by health and fitness facilities to their patrons.
Another verdictNotwithstanding the foregoing verdict, which may seem to move the industry toward the adoption of more stringent client safety rules, a judge in California recently determined that a health and fitness facility was not responsible for the conduct of a trainer, which ultimately resulted in a client suffering a heart attack during his first training workout (Rostai v. Neste Enterprises, 2006 WL 862930 [Cal. App. 4 Dist.], reported April 5, 2006).
The plaintiff in this case instituted suit against both the defendant facility and an independent contractor/personal fitness trainer, who used the defendant facility to train his clients in return for the payment of a fee to the facility. Apparently, the plaintiff met the personal fitness trainer while shopping and, as a result of that contact, the trainer agreed to provide personal training to the plaintiff.
The evidence in this case indicated that, at the time of the plaintiff 's first workout session, he was 46 years of age, 5 feet 10 inches tall, weighed 228 pounds and was sedentary. The defendant trainer apparently put the plaintiff through a workout that started with 12 to 13 minutes on a level treadmill at a pace of 3 to 4 miles per hour. The personal trainer then had the plaintiff sit at an incline bench and lift weights over his head. The plaintiff performed 10 repetitions with 40 pound weights followed by 10 more repetitions with slightly heavier weights. The plaintiff apparently then asked for a break, but the defendant trainer said "later," and had the plaintiff perform 10 pushups. When the plaintiff again asked for a break after telling the defendant trainer that he was "really tired" and "out of breath," the defendant trainer allegedly said, "Don't be a pussy" and "first give me 10 sit-ups." Allegedly, the plaintiff completed the sit-ups and the defendant trainer then instructed him to return to the incline bench to complete certain weight exercises, this time with a heavier weight and at a faster tempo. After four or five repetitions, however, the plaintiff said he could not do anymore and stopped. The personal fitness trainer then allegedly pointed to a nearby woman and said to the plaintiff, "Come on, don't you want to get some of this ass?"
The plaintiff facility alleged that the trainer then had the plaintiff lie down on a mat and lift both legs simultaneously. While the plaintiff was able to perform one leg lift, he then stopped. At that point, the trainer allegedly grabbed the plaintiff 's legs and pushed them toward the plaintiff 's head 10 to 12 times. While this activity was being completed, the plaintiff began to experience chest pain, but did not tell the trainer. He did, however, tell the trainer that he was out of breath, couldn't breathe and needed some water. The workout then stopped because the plaintiff felt that he could not continue. The plaintiff ultimately laid down of the floor while he experienced extreme pain and, after about five minutes he said, "Call 911, I think I'm having a heart attack."
Apparently, according to the court's statement of facts, there was no accurate assessment of the plaintiff's level of physical fitness. The personal trainer may have interpreted, according to the court, the "plaintiff 's physical complaints, including his tiredness, shortness of breath and profuse sweating, as the usual signs of physical exertion due to a lack of conditioning rather than as symptoms of a heart attack. There is no evidence, however, that the defendant [personal fitness trainer] ... acted with intent to injure [the] plaintiff or acted recklessly and thereby increased the risk inherent to the activity itself."
Based on the foregoing facts, the plaintiff instituted suit and claimed that the defendants were negligent in failing to investigate his cardiac risk factors once he entered into an agreement with the defendants to provide him with a customized physical fitness program. In response to these claims, the defendants answered and asserted, among other things, that the plaintiff 's injuries were the result of a risk inherent in strenuous physical activity and that the plaintiff assumed the risks of his injuries; as a consequence, the defendants moved for summary judgment, asserting the doctrine of primary assumption of risk as the basis for their motion. The defendant facility also asserted that it had no liability for the acts of the defendant trainer because the trainer was an independent contractor. The trial court granted the defendants' summary judgment motion and the plaintiff appealed.
On appeal, the plaintiff alleged that summary judgment should not have been granted because the doctrine of primary assumption of risk applied only to sports, and that fitness training was not a sport. The court carefully considered the issues in the case but determined, despite the foregoing facts, "that primary assumption of the risk is not limited to sports but applies to any physical activity that involves an element of risk or danger as an integral part of the activity." Specifically, the court determined "fitness training under the guidance of a personal trainer is such an activity. The obvious purpose of working out with a personal trainer is to improve physical fitness and appearance. In order to accomplish that goal, the participant must engage in strenuous physical activity. The risks inherent in activity include physical distress in general, and particular muscle strains, sprains, tears and pulls, not only of the obvious muscles such as those in the legs and arms, but also of less obvious muscles such as the heart. Stress on the cardiovascular system as a result of the physical exertion that is an integral part of fitness training with a personal trainer is a risk inherent in the activity. Eliminating that risk would alter the fundamental nature of the activity."
Even though the plaintiff couched his complaints against the personal fitness trainer in terms of that trainer's failure to adequately assess the plaintiff 's physical condition and his cardiac risk factors, the court determined that the essence of this claim was that the personal fitness trainer challenged the plaintiff to perform beyond his level of physical ability and fitness, and that that challenge "is the very purpose of fitness training." The court analogized the situation to "a coach in other sports or physical activities" and that "the personal trainer's role in physical fitness training is not only to instruct the participant in proper exercise techniques but also to develop a training program that requires the participant to stretch his or her current abilities in order to become physically fit. The trainer's function in the training process is, at the bottom, to urge and challenge the participant to work muscles to their limits and to overcome physical and psychological barriers in doing so. Inherent in that process is the risk that the trainer will not accurately assess a participant's ability and the participant will be injured as a result."
What about industry standards?The court ultimately determined that the evidence presented by the plaintiff, at most, showed that the personal fitness trainer did not "accurately assess plaintiff 's level of physical fitness." The court reached this determination despite the fact that the plaintiff supported his claim with a declaration by an associate professor of exercise science at the University of Southern California. That declaration included the statement, "Greater scrutiny should be exercised in monitoring individuals at health and fitness clubs like Gold's Gym," and that the fitness center's "acts and omissions also constituted a substantial factor in the cause of [the plaintiff 's] heart attack." Despite these allegations and averments, however, the court did not find either the personal fitness trainer or the fitness facility liable for the conduct that occurred in this case. No mention was made by the court of ACSM's Health/Fitness Facilities Standards and Guidelines, first published by Human Kinetics in 1992; ACSM's Guidelines for Exercise Testing and Prescription, Seventh Edition, published by Lippincott, Williams and Wilkins in 2006, or its prior editions of that same publication; or any other industry standard on the subject of screening. The court's findings on the issue of pre-activity screening by a personal fitness trainer in light of industry standards and guidelines seems to be clearly contrary to those professional statements. This decision will leave many in the industry puzzled as to this California court's determination in regard to what appears to be a case of rather serious allegations — in light of industry standards — particularly as to the personal fitness trainer's conduct prior to and during training.
Facts in cases like this one may well result in determinations by state legislatures to proceed with the adoption of licensing and/or similar statutes dealing with duties owed by fitness professionals.
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Ithaca College Athletics and Events Center