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Injury to Knee Results in Costly Lawsuit Against Fitness Center

An injury could lead to litigation. Know how to protect yourself and your gym.

Picture this scenario: You open a gym. It’s going great. People are flocking to work out. Your vision for creating a community that fosters health and wellness is coming to fruition. You hire the best personal trainers who take the time to know the clients and prevent injury. Things couldn’t be better.

Then one day, you’re rudely served with a summons and complaint. What? You are getting sued. By whom, when? Then you remember, a client complained of a strain to her knee doing the last set of lunges. She was older but was still working out well within her capabilities. Your trainer also never left her side during the entire workout. So, what happened?

The strain resulted in a torn ligament which then required surgery. Your client is now out of work because her job requires being on her feet for long periods, which she can no longer do. She also has mounting medical bills that she is trying to take care of without a job.*

While this seems like a disaster and very upsetting for both you and the client, you must look at where the liability falls at the end of the day. Who is responsible?

There are a few things you need to ask before throwing in the gym towel and admitting responsibility.

What is the type of injury suffered by the client and its impact (damages) on the client’s life?
Did you collect a waiver/release agreement signed by the client prior to participation?
Was your gym and/or trainer negligent in their actions?

Gym injuries are commonplace.

Annually, emergency rooms see over 1500 patients due to gym-related injuries. Injuries from treadmill trips/falls make up the highest number with more than 570 occurrences every year. Next are weights and weight machines injuries as described in our blog Injuries at Gyms and Homes.

A client’s injury isn’t necessarily due to negligence

While the health club in our cited example did end up getting sued, the appeals court ruled that it was not liable. Why? The court believed that the client knew there was an inherent risk of injury when entering the facility and engaging in any sort of physical activity. She also signed a waiver upon purchasing the gym membership that stated as such. The court also found that at no time did the personal trainer or gym contribute to her injuries with faulty gym equipment, improper teaching of lift techniques, or having her perform an exercise that was inherently dangerous or beyond her ability.

So, where could liability fall on the fitness center and owner?

Liability falls on the gym with the obvious and maybe not so obvious.

Faulty and broken gym equipment. Proper maintenance, repairs, and a procedure for checking all equipment reduce your risks. Remove or tape off faulty or damaged equipment until repaired.
Wet or uneven flooring. Proper signage warning about wet floors or making members aware of steps or uneven floors is critical. Slip-trip-and-fall accidents are the most common source of injuries.
Improper storage of potentially dangerous objects. Lock chemicals, cleaning products, cleaning equipment, and tools in a room or cabinet.
Improper advice or training. Yes, a trainer can be sued for improperly instructing a client or member on how to use equipment or weights. This is one reason it is essential that you have a standard operating procedure for client training, instruction, and documentation to which all trainers must adhere.

How can you better protect yourself as a fitness facility and owner?

We all know accidents will happen. Especially when people are in a gym with equipment or performing new exercises or techniques they might not have performed before. While your focus is always the health and wellness of your members, peace of mind for you and your trainers should also be at the forefront.

Having the correct insurance in place is a great way to start. But also important are non-insurance protections such as the use of waiver/release forms and risk management procedures and checklists that will help to prevent an injury from ever becoming an insurance claim.

Proper documentation for your policies and procedures is important, as well. This includes how to handle injuries: What is the process when a member gets injured? Immediate documentation following the incident, with photos if possible, can help prevent the he-said-she-said situation and may prevent litigation. To be prudent, document if a member continues using the facility following their injury. Track members with a key fob or membership card.

What is the bottom line?

The more proactive you are taking safety and wellbeing measures for everyone, the more peace of mind you can have as a gym owner.

We highly recommend that all personal trainers and fitness club owners/operators read Risks that Could Put Your Fitness Center Out of Business and Injuries at Gyms and Homes. the more peace of mind you can have as a gym owner.

Sadler offers Fitness Instructor Insurance specifically designed to meet the unique needs of personal trainers of all types, including aerobics, yoga, and pilates. We also offer several Health Club Insurance programs, one of which will meet your facility’s needs. You can get a fast quote by clicking the links above or calling 800-622-7372

* This scenario is described in an article published in the June 2021 issue of Hackney Publications Sports Facilities and the Law.

The Importance of Prompt Reporting of Injuries

What can happen when evidence is no longer available

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.

Sports Risk Management for Senior Participants

Preventing injuries and accidents with senior athletes

The baby boomers have gone gray. The youngest of them are in their mid-50s, sprinting toward their senior citizen discounts and fumbling for their reading glasses.

But the generation that ushered in aerobics classes, jogging, and in-home treadmills to popular culture aren’t slowing down. Gyms, rec centers, and fitness classes are filled with people in their 60s and 70s.

If you’re a personal trainer, health/rec center owner/operator, or sporting event planner, you need to be cognizant of the particular health and safety concerns when working with seniors.

First things first

You can expect that most seniors have significant health-related histories that range from failing vision to cardiac disease and anything inbetween. It’s important that you obtain a current and detailed medical history from all seniors, which should include current medications, allergies, implanted devices and past surgeries.

Orthopedic issues

One of the first things to degrade as we age is our sense of balance, which means an increased risk of falls. Minimize these risks by making monitoring trip hazards such as curled mat edges, rugs that slip, wet area and split-level step ups.

Time and use have left their mark on the joints, bones and muscles of seniors. Arthritis and osteoporosis are common ailments among seniors. The results can be loss of cartilage, lack of joint-lubricating fluids, and diminished strength of tendons and ligaments. Such issues leave seniors more susceptible to falls, stress fractures.

Age also has a way of affecting our reflexes, so seniors typically react more slowly. It’s important to recognize that senior athletes may be in good physical shape to participate in their activity of choice, but their reaction time may be less toned, which can result in accidents.

Cardiac and pulmonary issues

Heart and lung-related medical issues are often not immediately apparent, which makes them that much more dangerous. This is a perfect example of why having a medical history on file is important. Seniors with such histories should be required to provide clearance from their medical provider before participating in vigorous or moderate to high aerobic activities.

Heart disease can result in a decreased supply of oxygen to the muscles, which can cause shortness of breath, chest pain and even a heart attack. A defibrillator should be available at your facility or sporting event and staff trained in its use.

Seniors with a history of smoking, asthma and chronic lung disease should be monitored for signs of stressful breathing. Extremely hot and humid conditions can also impact breathing, as can pollen when participating in outdoor activities.

Eyes and ears

Eyesight is among the first senses to be affected with age. Suggest to those who wear glasses that they bring an extra pair just in case they break theirs. Better yet, suggest they invest in sports lenses or a sturdy headband to prevent glasses from falling off. Consider taking the proactive step of keeping a glasses repair kit on hand. Adequate lighting, especially in corridors and restrooms, is essential.

While many seniors live with varying degrees of hearing loss, most do nothing about it. Consequently, they miss much verbal information, which can cause confusion and accidents. It helps to have as much information as possible available in print documents. Clear signage is also important in facilities and venues.

The outdoors

As stated earlier, heat and humidity are significant concerns for senior citizens. They’re also more susceptible to dehydration. Make sure seniors athletes always have access to seating, shade, and plenty of water when it’s hot to avoid any level of heat illness. Encourage them to wear hats and sunglasses when possible and to apply sunscreen.

Rain means puddles and slippery surfaces, and we already know seniors are prone to falling. Monitor the paths and playing areas for accumulated water and slippery areas, as well as holes and debris such as trash and limbs and leaves.

The bottom line

No need to fear working with senior athletes. Most have been active for many years and are aware of their limitations. But being prepared for the unexpected is your best bet in dodging liability in the event of an injury.

Source: Marc I. Leavey. “Planning a Sports Event?” Sports Destination Management. March/April 2017.

Lowering the Risk of Health Club Deaths With AEDs

State law may require their presence in health clubs

The California family of a man who died of cardiac arrest received a settlement in their lawsuit alleging negligence and wrongful death against a Studio City gym and a personal trainer. The gym member, Marc Palotay, went into cardiac arrest while working out under the supervision of his personal trainer. The amount of the settlement was not disclosed.

The trainer, who was an independent contractor and not a Studio City employee, failed to attempt aid with an AED (automatic external defibrillator) despite knowing his client was having a heart attack. The lawsuit alleged Palotay didn’t receive defibrillation until paramedics arrived, a delay which resulted in his death.

The family claimed no defibrillator was in place at the gym, as mandated by state law. A Studio City manager stated that an AED was on the premises, but the personal trainer was responsible for its use in this case. The same manager pointed out that Palotay, upon joining the gym, had signed Studio City’s waiver of liability.

AEDs in health clubs

Laws regarding AEDs began emerging across the U.S. in the 1990s, including Good Samaritan laws. The hope was that legislation would decrease the risks of liability and encourage placement and use of AEDs in public settings. While each state has existing AED-related laws, they vary widely.

AEDs are required in health clubs by state law in Arkansas, California, Connecticut, Illinois, Indiana, Iowa, Maryland, Massachusetts, Michigan, New Jersey, New York, Pennsylvania, Oregon and Rhode Island. Most hotel spas are exempt from such laws. Washington, DC requires AEDs in recreational facilities.

Use of an AED in a health club can save lives, but it also carries heavy responsibilities, not the least of which are regular maintenance and staff training. Learn more in “Use of Defibrillators in Fitness Clubs” and “Defibrillator Failure: Fitness Center Liability.”

The Sudden Cardiac Arrest Foundation provides information on AED laws in each state here.

Source:

“Studio City gym heart-attack death lawsuit settled.” www.dailynews.com. 26 Oct. 2016.
“AED Laws.” www.sca-aware.org. 2016

Celebrity Trainer Client Suffers Injury and Files Lawsuit

When the trainer or facility is liable

Sore muscles and the occasional pulled ligament at the gym aren’t uncommon and are to be expected. Warming up before exercising and using the equipment correctly are the best ways to prevent injuries. One responsibility of the gym’s staff members and trainers is to assist clients in the proper use of the equipment.

Improper use of equipment and improper supervision can lead to serious trouble for both staff and clients.

A costly fall

A New York woman filed suit against her trainer after she was injured during a training session. According to the suit, Nicole Dickstein, 37, was seriously injured after falling off a balance ball. Dickstein alleges that the ball moved suddenly while she was standing on the side of the ball on one leg holding weights and with no support.

Dickstein’s $250 private training session with celebrity trainer Rich Barretta resulted in a torn hamstring. The injury required extensive surgery that included the insertion of hardware. The suit did not specify the damages Dickstein in seeking. The surgery alone had to run in the many thousands of dollars.

Injuries such as these not only rack up huge medical bills, but can incur the injured person lost wages, emotional trauma, hardship at home, and even derail life events such as weddings and vacations. If the trainer or the gym owner/operator is found liable for the injury, one or both can suffer huge financial losses, not only in compensation to the injured, but in attorney fees, court costs and more.

Protection for health clubs and trainers

We highly recommend that all personal trainers and fitness club owner/operators read “Risks that Could Put Your Fitness Center Out of Business” and “Injuries at Gyms and Homes.”

Source: Julia Marsh. “Mom sues celebrity trainer after suffering torn hamstring.” www.nypost.com. 05 Aug. 2016.

Waiver Saves Fitness Center in PA

Divided court highlights potential waiver pitfalls

Melinda Hinkal found out the hard way that it’s important to read before signing that liability waiver. She, like everyone else who applied to join the gym, was required to sign a waiver before she could begin working out in the facility. After joining, Hinkal claimed that too much weight on the equipment she was using caused a neck injury. It was her contention that the trainer advised her to continue working out even after she complained of pain.

The PA State Superior Court decision ruled she could not sue the gym because the signed waiver stipulates that gym members “assume all risks of personal injury.” However, not all the judges agreed with the ruling. A dissenting judge argued that the waiver agreement “contravenes public policy,” which is intended to protect consumers. The dissenting judge also noted that the waiver didn’t clearly stipulate that personal training sessions were covered.

Would your waiver hold up in court?

This case shows that the outcome of any given case clearly depends on the judge’s interpretation. This case also provides a clear example of some of the points I bring up in “Are Waivers/Releases Worth the Paper on Which They’re Written?” Chief among those points is that courts are more likely to rule in favor of a waiver that was custom written for specific activities and that aims to meet the requirements of your state’s laws.

So, what is a well-written waiver/release? Quite simply, nearly every phrase in every sentence must be written to avoid the pitfalls that resulted in actual rulings against waivers. The above-mentioned article lists 10 common waver risks to avoid.

Waivers and risk management

Given the dissenting opinion and the pitfalls mentioned above, it’s logical to assume that a different panel of judges might have ruled in Hinkal’s favor. So, don’t assume you’ll beat the odds if your waiver comes under scrutiny.

We have many other risk management articles pertinent to health clubs and fitness trainers. And we offer best-in-industry fitness instructor insurance and fitness center insurance at up to 38% savings.

Source: Matt Miller. “Woman signed away her right to sue over injury at Gold’s Gym, divided Pa. court rules,” pennlive.com. 29 Jan. 2016.

Death in Fitness Club Steamroom

Ignored safety protocol ends in tragedy.

Businesses train their employees on opening and closing routines such as turning alarms on and off to closing out cash registers. There are security and safety reasons for these protocols. The death of a 24 Hour Fitness member is a tragic illustration of why it’s imperative that such routines be followed.

The body of a 77-year-old woman was found in a Colorado 24 Hour Fitness steam room by two members at 7:45 a.m. Apparently, the woman passed out in the steam room, which she accessed some time after 1 p.m. the previous afternoon. She died of renal failure resulting from dehydration, according to the coroner’s report.

24 Hour Fitness has a policy that employees are to conduct “team cleans” of the club every hour. And it’s obvious that the closing employee failed to checking that everyone had left the building before closing for the night.

Unfortunately, a similar incident occurred at another 24 Hour Fitness club in California in 2014. The body of a 60-year-old man was discovered in the sauna by the cleaning crew an hour after the club’s midnight closing.

It’s important to note that such tragedies could happen at any fitness club. It’s easy for employees begin to think of the daily and hourly walk-throughs as mundane and unnecessary when no incidents take place over the course of days, weeks and months. Fitness club owners and managers need to continually stress the importance of being alert and following the safety protocols that are in place. These two deaths can serve as examples why the policies are in place.

And to make matters worse, a wrongful death lawsuit could be filed by the victim’s family, which could financially ruin the club, the club owner and the employees involved.

We offer other helpful risk management articles on our blog for fitness clubs and fitness trainers.

Source: Pamela Kufahl, “Woman’s Undiscovered Death in Steam Room,” clubindustry.com. 14 July, 2015.

Arguing Treadmill Safety Standards

And liability releases come into play

A gross negligence lawsuit filed by a member of 24 Hour Fitness is all about the safety standards for treadmills… or the lack thereof.

The plaintiff claims she suffered a severe head injury after falling backwards off a treadmill and hitting another piece of steel equipment. The exercise machine she hit her head on was placed approximately 46 inches from the rear of the treadmill.

24 Hour Fitness argues that the plaintiff signed a liability release and that there is no treadmill safety zone industry standard. However, the plaintiff’s attorneys are countering by citing a section of the treadmill manufacturer’s owner’s manual and safety guidelines, as well as an expert’s statement that the plaintiff was put at risk by the distance between the treadmill and other piece of equipment.

According to ASTM International Standard F2115-05 there should be a clear distance of 20 inches on either side of the treadmill and 39 inches behind the treadmill.

“This standard, while not widely known by club operators, is very well known by the equipment manufacturers and has been effectively used in court cases,” said Steve Tharrett, president of Club Industry Consulting.

The plaintiff is claiming that her signature on the liability release was fraudulently obtained.

On the day she signed the membership agreement she could neither speak nor read English, according to the suit. The manager, who could not speak Spanish, showed her the membership fee on the computer screen and made exercise motions, which the plaintiff understood was the price for use of the facility. Since she could only read the numbers in the price, the plaintiff was not aware of the liability release provision included in the membership agreement when she signed.

We offer more articles on fitness center and treadmill safety and encourage you to read “Are Waiver/Releases Worth the Paper They are Written On?”

Source: Eric Stemgren, “Judgment Overturned in 24 Hour Fitness Treadmill Lawsuit,” clubindustry.com, 12 June, 2015.

Treadmills Account for Most Equipment-related Health Club Injuries

And most are preventable

The treadmill is the riskiest of all workout machines because it has a motor that propels it, unlike ellipticals and stationary bicycles. However, most injuries are minor and deaths, as in the David Goldberg case, are rare.

There were an average of three treadmill-related deaths per year reported between 2003 and 2013, according to the U.S. Consumer Product Safety Commission. There were 24,400 treadmill-related injuries requiring emergency room visits reported in 2014. There were 62,700 injuries related to exercise equipment, which includes weights, trampolines, swimming pools, and golf clubs. Treadmills account for the largest number of injuries in that category.

Emergency room doctors report that the majority of injuries from sports equipment are associated with overuse, such as an injured tendon from a long run on a treadmill.

Treadmill accidents tend to occur more frequently among older and inexperienced users. Getting instructions on use of the machine is key in avoiding treadmill accidents and consulting with a physician before embarking on treadmill activity is highly recommended for seniors.

Unknown heart problems can surface with exercise, which can cause people to die suddenly while exercising. These types of hidden heart problems can be caused by a genetic abnormality or chronic coronary disease that cannot withstand strenuous exercise. Heart problems account for about 80 percent of sudden deaths in which people collapse and are unable to be resuscitated.

For more information see “Injuries at Gyms and Home.”

Source: Sabrina Tavernise, “Treadmill May Be Riskiest Machine,” nytimes.com, 05 May, 2015.

Injury Claims Unique to Health Clubs

What they are and how to reduce risk of occurrences

You work too hard at running your health club to risk it all. But it could easily happen if a client were to sue over something you simply overlooked. Health club General Liability claims typically arise out of the condition of the premises and equipment. Regular cleaning and maintenance of the facility should be performed, and clients always properly instructed on use of the equipment. The three most common claims unique to health clubs and fitness centers are:

Falls while stepping on or off of a moving treadmill. which is usually a user error . However, a liability claim can be filed if the injured person did not receive proper instruction on use of the treadmill.
Slips/falls in wet areas. These claims usually occur in locker rooms and sauna, Jacuzzi and pool areas. Such falls are best prevented with non-slip mats and warning signage.
Slips/falls in exercise classes. Participants in group exercise classes slip or fall off step platforms and floors that become wet with perspiration and/or condensation from water bottles.

General Liability Risk Management

Steps can be taken to reduce the risk of injuries and claims being made against your facility.

Equipment Maintenance

Document and retain maintenance and repairs
Equipment safety signage should never be removed
Cardio and strength equipment should be checked daily
Power cords should be taped down to prevent trips and falls

Wet Areas

Non-slip floor mats and safety grab bars should be securely installed at showers/saunas/Jacuzzi exits
Signs warning “CAUTION: WET AREA” should be permanently displayed.
Members should be encouraged to wear non-slip footwear in wet areas

Group Exercise Area

The condition of group exercise equipment and floors should be checked daily, particularly worn step treads and worn, wet or damaged sections of the floor

Professional Liability Risk Management

Steps can be taken to reduce the risk injury claims being made against your facility resulting from something a staff member or independent contractor does or says (or fails to do or say).

Waiver/Release Forms

Have all clients, members and guests sign a waiver or release before using any part the facility. Members and clients should sign a new waiver/release upon renewal each year.
Waivers should state that “instruction on all equipment and facilities has been provided and/or offered” to the individual.

Instruction

Fitness staff should physically demonstrate all equipment for new members and guests.
Renewing members should be offered refresher instruction and instructed on use of any newly purchased equipment.

Staff

Staff should all be trained in the proper use of all equipment upon hire and receive training on newly purchased equipment.
Fitness staff should be made aware of the policy they are expected provide proper equipment instruction to members and guests.
Staff should not exceed their qualifications for fitness and/or health training . Only staff with proper nutritional or medical certifications should offer recommendations in these areas.
Independent contractors should offer proof of individual professional liability coverage before working in the facility.

Emergency Procedures

All employees should receive a copy and acknowledge by signature receipt of the facility’s emergency procedures plan. This plans should include what steps to take in the event of injury, illness, fire, power outage, severe weather, etc.
The emergency plan should be reviewed with staff regularly during the year.
Staff who work on the fitness floor should be CPR and first aid certified. At least one CPR and first aid trained staff member should be on the floor at all times.
If the facility has an automatic external defibrillator (AED), at least one staff member with AED training should be on site at all times.

If you have questions regarding risk factors, please call us at (800) 622-7370, and you can visit our Health Club Insurance page to find a plan that suits your specific needs. We specialize in these areas:

Circuit Training

Day Spas

Exercise Studios

Fitness Clubs

Health Clubs

Pilates Studios

Yoga Studios