Facility operators should consider the limitless opportunities for injury in their club or rec center.
CORE PROBLEM Functional exercises that promote balance also can be the most dangerous in terms of falls.The clanging of free weights, the pulsing backbeat of a dance song in a group exercise room, the persistent hum of treadmill belts and the steady, muted thuds of the shoes landing on them - all are sounds representing bodies in motion. But, to a fitness center risk manager, these signs of life also represent the potential for injury. As Gary Bradley, a partner with Glendale, Calif.-based law firm Bradley & Gmelich, bluntly puts it, "There's nothing you can do to prevent injuries: The human body is frail and people are stupid."
Though injuries can't be avoided entirely, they can be minimized. Thus, so too can the numbers of potentially financially damaging injury-related claims targeting fitness facilities and their owners. "I put clubs into three categories," says Bradley. "There's the ignorant, there's the smarting and there's the smart. The ignorant club owners are the ones who don't think about these issues and think they'll never get hit with a lawsuit. The smarting are the ones who've gotten hit but weren't prepared for it and are now scrambling to learn their lessons. The smart are the ones who try to figure it out from the very beginning."
Too often, while distracted by the important day-to-day tasks of running a business and trying to recruit and retain members, Bradley says the overwhelming majority of fitness center owners and operators fall into one of the first two categories. But Bradley and other experts on fitness center liability offer some basic considerations that will, hopefully, land owners and operators on the "smart" side.
Proper risk management in the fitness center begins, but does not end, with an industry-specific insurance plan. "Make sure you're dealing with a broker who understands the risks that might be facing a health and fitness center," Bradley says. "I've come across numerous cases where people thought they had the right kind of insurance plan, and, lo and behold, there was some kind of strange or vague exclusion in the policy that precluded coverage."
Unfortunately, even the perfect insurance package can only go so far in protecting fitness facilities if a range of other risk management practices aren't also in place. "There are enough competent brokers out there who understand the risks specific to the industry and who can sell you the right policy, so most clubs end up fairly well protected," Bradley says. "But if you don't do all the little things - like regular equipment maintenance logs - and you get hit and start to lose a couple lawsuits, you may still find a broker to write you a policy, but your premiums are going to be frightening."
Facility owners may also put too much stock in their waivers, which have been deemed insufficient by some courts in protecting organizations from liability. Bradley notes that waivers remain a state-by-state issue, but says he has noticed a trend in the past three or four years in cases involving health and fitness facilities in which many courts "are finding ways to chip away at, find their way around and invalidate waivers."
While insurance and waivers can help shield an organization from liability once a lawsuit arises, fitness facility operators are advised to mitigate the factors that can lead to injury. Those factors most often relate to two larger categories: equipment and supervision.
Most equipment manufacturers, no strangers to personal injury claims themselves, have done their part to minimize the risks associated with their products. Emergency shut-off switches, side steps, railings and user-friendly tutorials are all examples of features designed to keep users safe. That said, some equipment types inherently carry more potential risk than others (think of a rapidly moving treadmill belt or a moving weight stack). Thus, fitness facility owners' best avenue for protection against liability is to always follow manufacturers' instructions.
"I see very few clubs that look at safety as a high enough priority," says Doug Baumgarten, who has more than 30 years of experience in the fitness industry as a facility manager, consultant and founder of SportFit Consulting LLC. "What clubs don't realize is that they're putting themselves in a bad position liability-wise because they are either not maintaining their equipment according to manufacturers' recommendations, or, in many cases, and especially with treadmills, they're putting equipment too close together or too close to other objects."
Baumgarten, who served as an expert witness in a case involving a healthy young treadmill user who died from a head injury sustained after he lost his balance and was propelled backward into a column positioned directly behind the machine, says most fitness facility operators fall into the trap of "trying to jam as much equipment as they can into a tiny little space."
Beyond manufacturers' instructions for equipment placement, facility owners can further protect themselves by adhering to the latest edition of ACSM's Health/Fitness Facility Standards and Guidelines. Although the manufacturer instructions will be specific to each piece of equipment, the more general ACSM guidelines often enter the discussion if a personal injury case goes to trial.
GAINED IN SPACE As illustrated here, adequate spacing between individual pieces of fitness equipment can exponentially reduce the potential for injury."There have been occasions in which the court looks at that book and says, 'Well, those are just recommendations. There's no legal requirement,'" Baumgarten says. "You can roll the dice, if you want to play that game. But when I get hired by a plaintiff - and I've worked with both plaintiffs and defendants in these kinds of cases - I always use the ACSM manual as a published standard, and very often it carries a lot of weight."
Another way in which facilities can protect themselves from equipment-related suits is through live orientation sessions, during which qualified instructors can demonstrate proper techniques while informing new patrons about any number of the facility's policies and procedures. "You can have a manual, and you can have signs, but it will be much more effective to have a mandatory introductory class where you show them how to use the equipment," says Gil Fried, a risk-management consultant and chair of the Sport/Hospitality and Tourism Management Department at the University of New Haven College of Business. "As an educator, I know that's how many people will learn."
Equipment maintenance is also at the center of many disputes. What many facility operators fail to realize is that when it comes to defending legal claims, keeping detailed maintenance records for all equipment is just as important as the maintenance itself. "Somebody will get hurt and they'll say either that the piece of equipment was defective or broken or not maintained well," says Bradley. "Even if you did do regular maintenance, the question will be, 'Where are your records showing that?' If you reply, 'Well, our records aren't very good,' then your case falls apart."
While equipment-related personal injury claims have maintained a steady pace, claims targeting personal trainers - and, by proxy, the fitness centers that employ them or at least offer their accommodations - appear to be on the upswing. For starters, more regular, everyday exercisers are taking advantage of the services of personal trainers. Adding to that increase in sheer quantity is Baumgarten's assertion that the standards for most personal trainers remain somewhat low. "You have lots of relatively uneducated people becoming trainers," he says. "It's a low bar to become one."
As such, rigorous screening practices such as background checks should be incorporated during the hiring process, as should be the case with any fitness facility employee. But with trainers specifically, says Bradley, the hiring party should be sure that the trainers are certified through one of the nationally recognized and reputable bodies. Even when they do this, facility operators often get into trouble when an injury occurs and it turns out a trainers' certification has expired.
"We all know that in the health and exercise field, the current way of thinking is not what it's going to be a year from now," says Bradley. "A risk manager should put a system in place - much in the same way you track membership data - with a calendar showing exactly when people need to be recertified."
Despite having worked for more than two decades as a personal trainer, Baumgarten, for one, doesn't hesitate to lay the blame for many training-related injuries on the overzealous attitudes of trainers themselves. "There's this macho attitude out there that says, 'The tougher and more weird and unique the exercise, the more of a guru I look like,'" says Baumgarten.
Fried has likewise seen this phenomenon explored in courtrooms. He says most trainer-related injuries occur during the trainer's first or second meeting with a new client, when trainers sometimes try to push out-of-shape exercisers beyond their abilities. "There's a mentality among some people that 'the more someone pushes me, the better that is,'" Fried says. "You end up with a trainer trying to make a good impression on the client, and they give them a full boot-camp-style treatment, and the client may just not be ready for that."
Baumgarten ascribes much of the risk involved with employing personal trainers with the difficult-to-define trend toward functional training. "Ten or 20 years ago, personal training pretty much consisted of doing a circuit of some basic exercises and some stretching," he says. "Now, in most cases, personal training is this sort of open-ended mélange of exercise types, many of which are pretty dangerous and high-risk, because they're challenging your core and your balance." The risk is compounded when trainers - usually in an effort to maximize their time and reach as many clients as possible - fail to assess the physical capabilities or preexisting conditions of their clients. "I see trainers all the time training much older people and treating them like they're 20-year-old athletes," says Baumgarten. "They'll say, 'Jump over these hurdles,' and they call that functional. I ask them, 'To whom?' These people aren't training to play for the Boston Celtics. They just want to lose 20 pounds and not die."
Creating a policy that limits what exercise types can be performed during personal training sessions is one relatively inexpensive way in which fitness facilities can mitigate the potential for injury. However, a comprehensive and regularly revisited risk management plan does require putting a more significant dent in a facility's operations budget.
"The bad news is that all these risk management tools - including the insurance policy and hiring a lawyer to look at your waiver or structure your independent contracts - represent overhead expenses for the club," Bradley says. "There's no profit from those."
But is the expense worth it? Of course, says Bradley. "Every time you get hit with a claim, it's a big distraction from running your business."
