Due Diligence

One of the first things we learn as children is that "accidents happen." Unfortunately, the corollary to that in the adult world is, "lawsuits happen." Too many fitness center managers subscribe to the "ignore it, and it will go away" theory. But, it only takes one small incident to put you out of business forever. Now more than ever, managers need to make sure every employee understands and follows the fitness center's risk-management policies. Fitness center employees are agents of their employer, says Ken McKay, vice president of Interwest Insurance Services, Chico, Calif. "That means that [they] are responsible for understanding and implementing safety and prevention measures, as well as proper claim reporting," McKay says. If a member slips and falls on the basketball court, it's crucial for the attending staff person to be sympathetic to the victim, but not accidentally admit fault. Risk management means that you, as a service provider, take every reasonable measure to keep your facility and your members safe. Proper risk management protects your members, your staff and your property at the same time. To accomplish this, your staff members must perform regular facility assessments, as well as member assessments.

Facility risk

So, what constitutes a risk? Anything that could potentially harm a person or damage property puts your fitness center at risk of a lawsuit. This includes a wide variety of possibilities:

• Uneven flooring, slippery tiles and general clutter that could cause trips and falls
• Weights and mechanical components of weight machines
• Electrical equipment, such as treadmills and elliptical trainers
• Bacteria build-up due to improper cleaning
• Blocked exits
• Poor lighting and cracked asphalt in the parking lot
• Building code violations, such as non-compliance with the Americans With Disabilities Act (ADA)

Staff members should perform regular safety sweeps of the entire facility. McKay suggests performing these three or four times a day. A safety sweep should be a thorough check of every room in the facility, plus outside areas. You're looking for anything that could pose a safety hazard, from wet spots in the locker room to weights left out in the open to an uncovered outlet in the childcare area. "It's vital for any problems, no matter how small, to be fixed and documented right away," McKay says. "If a rug is rumpled, straighten it. If a treadmill isn't working properly, unplug it and put an 'Out of order' sign on it." Don't forget about the outside of your facility. Many accidents occur in the parking lot or on other parts of the grounds. Pay special attention to lighting; is it safe for your members to walk to their cars at night? Also make sure that landscaping, fences and paved surfaces are in good repair, and that there is no trash or clutter. More in-depth inspections should be performed by management monthly. Safety issues in these inspections include the following:

• Did staff perform and report daily safety sweeps?
• Were all newly hired staff properly trained?
• Is all lighting adequate and functioning properly?
• Are all exits marked, unblocked and properly illuminated?
• Are hazardous materials/chemicals properly labeled and stored?
• Are all fire extinguishers fully charged?

Three easy tasks

Beyond conducting safety sweeps, there are three easy things your staff can do to reduce risk in your fitness center. "These are the bare bones minimum requirements for a risk-management program," says Ken Reinig, president of Association Insurance Group, Lakewood, Colo. "If your staff follows these rules, you will be way ahead of the game." 1. Greet every member by their first name. This one simple piece of common courtesy can drastically reduce your chances of being sued. If Jane Smith comes into your fitness center every morning and is greeted with, "Hi Jane. How's the knee? When are your kids coming home?" She feels that the staff really cares about her. If she happens to slip and fall in the pool area one day, she is less likely to file suit because she feels good about the atmosphere in the facility as a whole. 2. Be cognizant of clutter. Foster the attitude that keeping the facility clean is everyone's job. If a cord is out of place, put it where it belongs. If there's a wet spot on the floor, wipe it up. No one employee is exempt from this responsibility. All staff members (and management) should treat the fitness center like it's their own home. Members will feel like they're being looked after and cared for, too, which will result in fewer lawsuits. 3. Document everything. If you are ever involved in a lawsuit, you want as much paperwork on your side as possible. Regular maintenance reports can help prove due diligence. "Detailed incident reports are also critical to reducing risk. If an accident does happen, no matter how small, your staff should be trained in how to take an accurate report," says Reinig. "Your insurance company will have its own reporting requirements, but staff members should always remember to get as many eye-witness accounts as possible."

Personal risk

People are liability risks, too. You are not only responsible for keeping the facility maintained, you also need to be sure that individual members are as well-informed as possible. The American College of Sports Medicine publishes ASCM's Health/Fitness Facility Standards and Guidelines, a widely accepted volume of risk-management practices. The book advocates using a pre-activity cardiovascular risk questionnaire (Par-Q) to screen every member for possible health risks. If a history of health problems exists, it is recommended that the member seek medical approval before beginning an exercise program. In addition, "all pre-activity screening tools and health questionnaires must be reviewed by qualified staff members, and the results of the screening must be documented." ASCM also recommends that every member be given a thorough orientation of the facility and the proper use of its equipment. Telling people once isn't enough, though. Any known hazards need to be clearly marked with easy-to-understand signs. ASCM also recommends the use of liability waivers, and McKay agrees that they can be useful in court. "But only if they are well-written," he adds. "Get a lawyer you trust to go over the language. And remember, minors cannot waive their rights." Your members aren't the only people who can put you at risk for a lawsuit. Improper behavior by your staff can get you into hot water, too, whether they are failing to document accidents, lifting heavy objects improperly or making potentially lewd comments to members. If you notice something isn't right, talk to them about it - and document the conversation.

Liability hot buttons: Evacuation procedures and AEDs

Evacuation procedures. Since 9/11, all public buildings have been urged to create emergency action plans. These plans cover everything from evacuating the building safely to notifying police of a problem. If you don't have an emergency action plan, OSHA has a website set up to help you create one at www.osha.gov/SLTC/etools/evacuation/evac.html. It's not enough for your staff to know where the procedure book is. They have to run through the procedures, and physically assist people out of the building. If an actual emergency happens, they won't have time to read through a long list of instructions. So, it's wise to run drills at least twice a year. You may want to inform members or close the facility while the drill is taking place. Or, check with your local emergency services to see if they have a coordinated city-wide drill day already scheduled that you could participate in. Automated external defibrillators (AEDs). Deaths do occur in fitness centers due to heart attacks. In the case Richard Eng v. 24 Hour Fitness, the company admitted that between 20 and 40 of its members die this way each year. Beginning as early as 1986, fitness centers have been using AEDs to save the lives of members experiencing cardiac arrest. But the issue has become heated in recent years due to a number of high-profile lawsuits. Many facilities do not have an AED because they fear added liability. They worry they will be sued for not using the machine if they have one in the club. So, they reason it's wiser not to have one. However, the litigation trend shows just the opposite. Far more fitness centers are being sued for not having an AED. Many states require that fitness centers have these life-saving machines on hand. So, check your local and state laws to be sure you are in compliance.

Universal standards?

There are no universally accepted standards for risk-management policies at this time. Helen Durkin, executive vice president for public policy at the International Health, Racquet and Sportsclub Association (IHRSA), Boston, Mass., says "that's because every state is different. Creating one set of guidelines might help clubs in one state, but cause more liability problems in another." However, IHRSA does have 12 baseline standards it lists on its website (cms.ihrsa.org/IHRSA/viewPage.cfm?pageId=657). "Every club should comply with these basic rules, or have a very good reason why not, for their own protection," Durkin says. With so many organizations regulating how you run your business, and with laws varying from state to state, you should make friends with your insurance agent. He or she will be up to date on rules, regulations and policies that affect the industry in your location. Many insurance organizations already have risk-management guidelines set up for you, so ask your agent. And remember to check your insurance policy itself to see that names, dates and coverage changes are accurate and current. Nobody wants to be involved in a lawsuit. But the best risk-management practices take the human being into account before the legal action. If you take a genuine interest in your members' health and safety, you may never have to think about being sued.