Posts Tagged ‘health club injury claims’

Top 4 Legal Issues Health Clubs Face

Posted | Filed under Health Clubs

Maintaining industry compliance is the key to avoiding liability   

Your health club is thriving with new and renewing members; business couldn’t be better. Now isn’t the time to be complacent about compliance to industry standards and regulations. Failure to meet compliance leaves you and your facility exposed to liability.

The four areas that pose the most potential for risk are emergency procedures, staff certification, protective documentation, and the Americans with Disabilities Act. Take the time to learn what steps you can take to avoid liability and ensure your facility is compliant in these areas.

  1. Emergency Procedures

Accidents, pre-existing health issues, and other factors can be the cause of an emergency situation in any health club. It’s your responsibility to have an emergency plan Fitness clubin place and ensure your staff is familiar with it. There are legal issues involved when administering emergency care. Knowing the risks is the first step in protecting you, your staff and your health club from liability.

“Good Samaritan” legislation offers some level of immunity from liability, but is limited to negligence. It doesn’t protect against reckless or grossly negligent conduct. Two requirements must be met in order to enjoy Good Samaritan immunity:

  • Aid must be given at the scene of the emergency.
  • Rendering aid in good faith, which means that assisting the victim was the intention of those offering emergency care. Immunity can be denied if there is evidence that the motive was monetary reward or attention in the press.

Good Samaritan laws vary from state to state, so it’s important to familiarize yourself and your staff with the legislation in your area.

Use of Automated External Defibrillator (AED)

health club insuranceCertain businesses are required to house AEDs. A few examples of these are schools, airports, medical facilities and public swimming pools.  Legislation varies from state to state on which businesses are mandated to house AEDs. However, housing of these devices is encouraged by the American College of Sports Medicine  and the American Heart Association for health clubs that have more than 2,500 members, provide programs for high-risk clients, and/or are in a location where emergency response time is typically more than five minutes.

If your club decides to house an AED, be advised that mandatory legal duties will arise. Please see our article “Use of Defibrillators in Fitness Clubs” which includes an infographic with helpful tips for maintaining and training staff on the use of AEDs.

  1.      Staff Certification

It’s your responsibility to confirm that your staff members are current with their fitness certifications. Lapsed staff certifications leave you and your facility vulnerable to allegations of misrepresentation. Many clubs post lists of their staff members and qualifications. Lapses in any certification can be construed as misleading.

Steps you can take to prevent lawsuits:

  • Develop a system for tracking expiration dates of all employee and independent contractor certifications
  • Remind staff periodically to renew certifications, either in staff meetings, written memos or email.
  • Increase staff awareness of potential legal consequences of non-compliance awareness.
  • Offer staff incentives for keeping certifications current, and penalize employees or independent contractors who collected fees during any period of lapsed certification.

3. Protective Documents

Waivers / releases are intended to protect health clubs and their owners and staff against claims of regular or ordinary negligence. They don’t, however protect against grossly negligent or reckless conduct. All members should sign a separate waiver / release agreement for the protection of your facility and its staff.

For more information on waivers and releases, please see our article, “Are Waiver Release Agreement Worth the Paper They are Written On?” We also sample waiver forms in our risk management library.

4. The Americans with Disabilities Act

A primary goal of the Americans with Disabilities Act goal is to make sure that businesses do all that they “reasonably” can for people using their facilities who have disabilities.  Reasonable accommodation is any modification or adjustment that enables a disabled person to participate in the daily operations of the facility.

Such accommodations can be as simple as offering extra assistance for disabled members, such as assistance in transferring from a wheelchair to seated equipment or posting large print signs for the visually impaired. ADA does not require fitness facilities to fundamentally alter operating procedures that could risk the safety of others.

Our risk management library is full of information that can help you minimize risks to your business. Call us at (800) 622-7370 if you have questions about risk management or want to receive an insurance policy quote based on your unique needs.


Source: Sean Riley, “Risk Management: Is Your Club Compliant or Complacent?”



Legionnaires’ Disease and Health Clubs

Steps to preventing Legionnaires also reduce liability risks

The Centers for Disease Control estimates that 8,000 to 18,000 Americans are hospitalized each year after contracting Legionnaires’ disease. Legionnaires’ is a bacterium that thrives in water that is stagnant, unsterilized and warm. An individual can only contract the disease by breathing in vapors that carry the bacteria. It cannot be transmitted from person to person. Health club owners can decrease the risk of infecting their patrons by conducting regular water system maintenance.

A Memphis 24 Hour Fitness is currently embroiled in a $2 million lawsuit filed by Jerome Walsh after he contracted Legionnaires’ disease at the facility. He is one of three people hospitalized between May 21 and June 21, 2103.

The 24 Hour Fitness USA facility was regularly cleaned and maintained to industry standards, according to spokeswoman Robin Rootenberg. She also stated that the chemicals used for cleaning are industrial grade. A third party has been brought in to conduct testing on the infected area, which currently remains closed. The company is engaged in environmental remediation with a firm approved by the health department.

Health Club and Fitness Club Insurance

Proper insurance is critical to protecting your health and fitness club in the event of devastating claims, which can involve multiple individuals alleging extreme damages.  However, many General Liability policies for health clubs include two exclusions which most eliminate coverage.

Pollution Exclusion: All General Liability policies include the standard Pollution Exclusion.  A pollutant is defined as an irritant or contaminate in any form (solid, liquid, or gaseous).  So far most courts are reluctant to deny coverage for Legionnaires’ lawsuits when carriers invoke this exclusion as they don’t consider the bacterium to be a pollutant.

Fungi or Bacteria Exclusion: Many General Liability policies include an endorsement that excludes fungi or bacteria that are present within a building or structure with the exception of those that are contained in a  product intended for bodily consumption.  Since Legionnaires’ disease is a bacterium, this exclusion could be invoked by the insurance carrier to deny coverage.  However, some courts have upheld coverage depending on the exact location in the facility where the disease was contracted.

Ensure that your health club stays protected by adhering to all environmental and industry guidelines for the cleaning and maintenance of for your water systems, including Jacuzzis, saunas, and pools.

Visit our Health Club General Liability Insurance page to get a quick quote.  We don’t require you to join an association to qualify for this coverage.

Source: Tennessee Health Club Sued Over Legionnaires’ Disease 

A Cost of Health Club Injuries

Prompt reporting of injuries can reduce legal fees

Kim Marshall was injured while working out on a treadmill at Bally’s in Tacoma, Washington. As a result of her injuries, Marshall filed suit against Bally’s Pacwest, Life Fitness, the company that manufactured and owned the treadmill, and Washington Athletic Repair, the company that installed and maintained the treadmill. There were some discrepancies as to what actually caused Marshall to be ejected from the treadmill, and it was this discrepancy that led to the dismissal of her suit.

The following facts where established in Marshall’s original deposition: She set the treadmill at 2.5 miles per hour for fifteen minutes. The treadmill abruptly stopped at thirteen minutes. Ms. Marshall reset the machine, but it restarted at 6.2 miles per hour instead of the slower pace she had initially programmed. This sudden start threw her backward, causing her to strike her head against a plexiglass wall. The blow to the head resulted in a brain injury.

However, when questioned at trial, Ms. Marshall said she could not remember anything after resetting the machine. She could not recall the speed the machine restarted at or even if she was thrown backward into the plexiglass wall or to the side against something else. Her attorney stated that she had a two-week memory lapse following the brain injury.

The trial court concluded that once she testified in court that she could not remember what actually happened after she reset the treadmill, she could not point back to her deposition and assert that previous testimony as fact. And because she could not tell the court what the machine did when she reset it, she had no proof that the machine malfunctioned at all. The court reasoned it was just as likely that she tripped, fainted, or fell after resetting the machine because there is no other evidence to establish what happened.

Marshall attempted to win on another legal theory called spoliation, which is the intentional destruction of evidence. This theory is based on the assumption that, when one party intentionally destroys evidence relevant to a case, that evidence must have been unfavorable to them. In this case, Marshall’s injuries occurred in May 1993, and her attorney did not ask to examine the treadmill until September 1997. After Marshall’s injury, the treadmill remained in use at Bally’s. In November 1993, Washington Athletic replaced the CPU in all Life Stride 9500 treadmills, including the one at issue. Marshall’s attorney had not requested that the CPU be preserved. That same treadmill remained operational until April 1997, when its frame broke. At this time, the machine was returned to Life Express for replacement. The court concluded that, because Marshall’s attorney did not request to inspect the machine until four years after the incident, Bally’s could not be held accountable for having destroyed evidence.

Finally, the court also took into account the waiver clause in Ms. Marshall’s Membership contract with Bally’s. The clause stated, in part, that

“the club member is “voluntarily participating in these activities and assume(s) all risks of injury… that might result” and that the member agrees “to waive any claims or rights (the member) might otherwise have to sue (Bally’s) a factor, the court took into consideration when dismissing Marshall’s claim the fact that she could not prove that her injury resulted from any malfunctioning of the treadmill she was using. “–   Marshall V. Ball’s Pac West, Inc., 972 P.2d 475, (Wash.1999).

In My Opinion

Proper accident and injury reporting can go a long way in documenting proper practice and enhance the ability to succeed in litigation.  In the above case, if witnesses observed that the plaintiff tripped and wasn’t thrust from the treadmill as she stated, the claim could have immediately been dismissed, thus avoiding expensive legal defense fees.  Prompt accident investigation procedures including written witness statements are important.

Article Compliments of From the Gym to the Jury, Volume 1, Number 1.