Have you done all you can to reduce your fitness center's exposure to lawsuits?

The risk of being targeted by legitimate and spurious claims from injured and disgruntled customers hangs ominously over every fitness operation. However, mangers can take actions to ensure that the risk of litigation arising is greatly reduced, and if it does, that the facility has a robust defense.

Risk areas and issues

Dr. Robert Ammon, associate professor in the sport management program, and the graduate coordinator for the physical education department at Slippery Rock University, Slippery Rock, Pa., says the main categories of legal issues that fitness facilities need to address are risk management, negligence and contracts. He says the most common area of litigation for a fitness facility is undoubtedly negligence (i.e., members getting injured on or while using the equipment).

In terms of the highest-risk areas of a facility, Dr. John T. Wolohan, associate professor and chair of the department of sport management and media at Ithaca College, Ithaca, N.Y., says it depends on the type of facility. "In a regular fitness facility, the two areas of concern [are] the workout room and the locker room," he says.

Risk issues that should be considered include negligent hiring, adequate supervision, proper instruction, equipment inspection, adequate signage, trained staff, facility design (enough space, facilities used for designed purpose), proper equipment (set up and anchored correctly), contractual problems with membership agreements, and contracts with suppliers and equipment manufacturers.

Managers can focus their proactive efforts to enhance "litigation-proofing" these areas. In addition, fitness center managers can benefit from understanding how attorneys may target their facility. They should identify the key weaknesses attorneys are likely to look for when bringing a lawsuit against their fitness facility. "Attorneys will relish the opportunity to litigate against a fitness facility [that doesn't have] a comprehensive risk-management plan," says Ammon. "Gone are the days of ignorance; a fitness facility will be expected to know the industry standard. That standard is to design and implement an efficient and effective risk-management plan."

Specifically, a plaintiff's counsel will look for poorly or inadequately trained staff; inadequate supervision on the weight room floor (or in the cardio or aquatic area); lack of signage; poorly written waivers (not a stand-alone document); facilities and/or equipment not properly maintained; staff (i.e., personal trainers or group exercise instructors) with no certification; and improperly stored equipment.

Legal defenses

Having outlined the risks, here are the defenses. Wolohan identifies four main types of legal defenses that can help protect a fitness facility: assumption of risk, contributory negligence, comparative negligence and waivers.

Waivers are one form of contract law defense. Others include agreement to participate, assumption of risk forms and informed consent. Ammon says that properly written waivers are the best type of contract law defense available. Properly written waivers are currently effective in approximately 45 states, according to Ammon. However, the age of the user can be an issue. "The demographics of fitness facility members will affect a waiver's effectiveness," he says. "While the courts in a few states have recognized the validity of a parent signing a waiver, the majority still maintains that anyone under the age of 18 (a minor) cannot have their right to sue abrogated by a parent's signature."

Understandably, there are differences in how states view legal liability in the fitness industry. "Some states do not allow waivers at all, and some are very liberal in how waivers are used," says Wolohan. "Also, some states allow immunities (charitable), contributory negligence and comparative negligence."

Assumption of risk

The essence of the assumption of risk is that the plaintiff assumed the known risk of whatever dangerous condition caused their injury. While it is important that a fitness facility communicate to a user/member what risks there are, it is also important that users understand those risks. On assumption of risk, Wolohan says, "Participants cannot assume a risk that they do not understand."

Primary assumption of risk is the most effective and widely used legal defense to protect a fitness center, says Ammon. "The risks would need to be inherent to the activity, and the facility must take the responsibility to educate their members about the risks," he explains." The members must 'know, understand and appreciate' the risks for assumption of risk to be a viable defense. This can be accomplished through a comprehensive orientation session, posted information, adequate signage and member training."

In terms of communicating warnings, Ammon says that they can be written descriptions included in membership papers, conveyed through signage on the walls of the facility, or given verbally by properly trained staff.

Managers need to act when warnings are ignored. Members cannot be allowed to misuse equipment, behave irresponsibly, pose a threat to themselves or other users, or ignore signs and warnings. "If a club user behaves irresponsibly, they need to be spoken to immediately, preferably by a manager of the facility," says Ammon. "If the behavior continues, the member should be asked to leave the facility, and the incident should be documented. Failing to follow rules or directions may help to establish a secondary assumption of risk defense if litigation ensues."

With regard to the specific issue of equipment usage, Wolohan says that, for a facility to not be held liable for injury resulting from the use of equipment, all participants should sign waivers. "I would [also] provide the proper supervision and instruction on how to use the equipment, control the area in which the equipment is used (e.g., keeping traffic to a minimum), and conduct regular risk-assessment inspections of the equipment and area," he says.

Seeking counsel

Understanding the risk areas and installing the basic defenses all enhance lawsuit-proofing. Selecting the right legal representation is also a factor in proofing your facility. Wolohan says that there is no need for fitness centers to hire legal counsel with specialist knowledge of the fitness industry -- issues arising are fairly standard across different industries.

However, there may be some advantages to hiring counsel with substantial experience in the fitness industry. "The study of law is analogous to a mechanic's knowledge of cars," Ammon explains. "Every mechanic knows a little about most engines. However, those who work predominantly on American-made cars may not know all the gradations found in a Japanese- or German-made engine. The same may be said about other professionals, including lawyers. A corporate attorney will have a general understanding about negligence, but will not necessarily be an expert. The same goes for divorce lawyers and their knowledge about waivers."

Fitness center owners/managers also need to stay abreast of changes in the legal environment. "Certain areas of a fitness facility have recently come under more intense scrutiny," says Ammon. "For example, certifications are becoming the norm for personal trainers, and have been for several years for [group exercise] instructors. The sudden explosion in supplement sales has enhanced the scrutiny of advice provided by personal trainers. In addition, the availability of over-the-counter supplements that are actually banned by the IOC, as well as some professional sports, has further emphasized the need for proper, qualified nutritional counseling."

To monitor ongoing changes in the fitness industry, Wolohan says that it would help to join an industry association that updates its members on industry changes and regulations.

Ammon adds that facility managers can monitor ongoing changes in the fitness industry legal environment by reading industry publications such as Fitness Management, as well as more specific law journals such as The Sport, Parks & Recreation Law Reporter, The Journal of Legal Aspects of Sport and From the Gym to the Jury. "The advent of the Internet has proven to be an absolute goldmine of information," he says. "In addition, fitness club owners need to communicate with others in the industry, as well as ask various experts in the field."

Have a risk-management plan

While fitness centers can take measures to enhance their lawsuit-proofing, the risks can never be fully eliminated. "Even with the proper design and implementation of a comprehensive risk-management plan, a fitness club can't guarantee litigation won't occur," says Ammon. "We live in a very litigious society, where 'litigation has become the lottery of the new millennium.' However, by implementing a comprehensive risk-management plan, documenting equipment maintenance, employing trained staff and ensuring the use of adequate signage, a facility will be able to control their liability."

REFERENCE

McInnis, K., W. Herbert, D. Herbert, J. Herbert, P. Ribisl and B. Franklin. Low Compliance With National Standards for Cardiovascular Emergency Preparedness at Health Clubs. CHEST: The Cardiopulmonary and Critical Care Journal 120: 283-288, July 2001.

Dr. Robert Ammon provides a few case examples to illustrate some of the litigation risks affecting fitness centers:
Parks vs. Gilligan (1998)
The plaintiff asked a fitness center member to spot him while he performed a dumbbell bench press. While putting the dumbbells down, the plaintiff crushed his left index finger on a weight plate that was lying on the floor. The plaintiff sued the spotter for failing to carry out a duty he had assumed, which was the proximate cause of the injury. The plaintiff used standards proposed by the National Strength and Conditioning Association. This case was settled out of court.
Lund vs. Bally's Aerobic Plus Inc. (2000)
Lund previously had surgery to fuse two vertebrae in her neck. In February 1994, she joined Bally's. In addition to the cost of her membership, Lund paid Bally's $375 for 20 sessions with a personal trainer. Lund told the trainer about her neck surgery, and that a doctor had told her not to lift any weights over her head. The trainer assured her that he could show her how to use the weight machines properly without injuring her neck. Lund followed his advice on how to use an incline bench press machine with a 10-pound weight. Lund lifted the weight 15 times before she re-injured her cervical spine, requiring another surgery. Lund sued Bally's for personal injury, contending the trainer was negligent. California Court of Appeals affirmed a lower court ruling in favor of Bally's because of a well-written waiver.
Vautour vs. Body Masters Sports Industries Inc. (2001)

The plaintiff was injured while moving his feet on a leg press machine to perform calf raises. The fitness facility had signage that stated "Caution. Handles must be in locked position when doing calf exercises." The plaintiff tried to use a product liability claim for defective design. He had an expert witness testify that having adjustable stops on the machine would have reduced the risk of injury. On crossexam by the defense attorney, the expert testified that adjustable stops would not reduce the risk of injury if the user failed to manually set the stops.

[Much of the case information cited above came from articles written by David Herbert and William Herbert in The Sports, Parks & Recreation Law Reporter.]

A 2001 study published in CHEST: The Cardiopulmonary and Critical Care Journal surveyed 122 randomly chosen fitness centers in Ohio. The study found that more than one-fourth of the fitness centers (28 percent) failed to employ pre-entry screening to identify members with signs, symptoms or history of cardiovascular disease, even though 17 percent of these fitness centers reported one or more cardiovascular emergencies (i.e., acute myocardial infarction, sudden cardiac death or both) in their facilities during the past five years. Moreover, a majority of the fitness centers (53 percent) had no written emergency response plan, and 92 percent failed to conduct emergency response drills as described in published national standards. Only 3 percent of the centers reported having automated external defibrillators (AEDs).

These findings indicate that staff at public fitness facilities must work to identify members who have signs, symptoms or history of cardiovascular disease, and prepare for prompt and appropriate responses to cardiovascular emergencies as described in contemporary national recommendations. Such risk-management procedures may reduce exercise-related cardiovascular events among the escalating number of moderate-tohigh-risk adults who are being mainstreamed into health and fitness facilities.

"I believe strongly in 'foreseeability' and being proactive," says Dr. Robert Ammon, associate professor in the sport management program, and the graduate coordinator for the physical education department at Slippery Rock University, Slippery Rock, Pa. "Currently, no legislation has been passed forcing facility owners to purchase AEDs. However, the airline industry, the hotel industry, sport and entertainment facilities, schools, universities and even shopping centers have recognized the benefits/need of this lifesaving equipment. I personally believe it a matter of time before the expectations of our courts about the fitness industry will begin to shift. Other proactive individuals who have an awareness and appreciation of the potential liability involved with the absence of an AED will prepare themselves (and their fitness facilities) to avoid the possible resulting litigation. There is no argument that AEDs save lives that might have otherwise been lost."

The following case provides an example of the financial hit that can result from poor cardiovascular risk management:

Spiegler vs. State of Arizona The plaintiff was a 21-year-old full-time student who had been diagnosed with hypertrophic cardiomyopathy. She was exercising on a cycle, in compliance with doctor's orders, in the student recreation center when she suffered a cardiac arrest. The recreation center had written policies and procedures that required staff to perform CPR, if necessary. Student employees called 911, but did not perform CPR. The paramedics arrived and found the plaintiff not breathing and without a pulse. They performed CPR and took her to the university hospital, where she was in a coma for one-and-a-half days and suffered irreversible brain damage. The plaintiff's expert witnesses testified to the following:

* The recreation center fell below the normal standard of care by not adequately training student employees for an emergency.
* The student employees fell below the normal standard of care by not performing basic life support (CPR).

* The plaintiff will need day-care treatment, transitional living care and sheltered living care. Her loss of earning capacity is approximately $650,000, and thecost of future medical care is not less than $2.5 million.

The jury found in favor of the plaintiff, and awarded damages of $5 million and an additional $100,000 in favor of the plaintiff's mother for loss of consortium. Fitness facilities need to make certain that emergency plans are in accordance with the prevailing standard of care.