Negligence

ACE Personal Trainer Manual, 4th edition Chapter 17: Legal Guidelines and Professional Responsibilities 1

Business Structure  The size and scope of the business—both in the short- and long-term—will be important factors in the initial selection of the business entity.

 The business can be altered if conditions warrant. – However, legal issues arising at a time when one structure was utilized cannot simply be mitigated by switching to a different structure.

 Typically, personal-training businesses operate under one of the following structures: – Sole proprietorship – Partnership – Corporation

Personal Trainers as Independent Contractors  A majority of trainers work with clients at an established fitness center. – The relationship between the center and the trainer needs to be clearly defined.

 Personal trainers who work with clients at fitness centers typically do not provide their own equipment.  A personal trainer who brings clients to a fitness center is operating in a different environment than one who trains existing gym members.  A personal trainer who is an independent contractor should be able to: – Choose when and where to work

– Charge variable fees for different situations – Begin working without extensive guidance – Maintain autonomy in training decisions

Contracts  Contracts are the best method to ensure that all aspects of a relationship are properly established.

 The following elements are necessary to create a binding contract: – An offer and acceptance with a mutual agreement of terms – Consideration (an exchange of valuable items, such as money for services) – Legality (acceptable form under the law) – Ability of the parties to enter into a contract with respect to legal age and mental capacity

Written Contracts versus Oral Contracts  Some personal trainers may feel that written contracts are unnecessary. – In the case of scheduling clients, that is often the standard practice.

 A potential misunderstanding may result in problems. – Any oral contract is subject to misinterpretation by the involved parties.

 In the event of an oral contract dispute, conflicting stories may be settled in a courtroom without sufficient evidence to support the trainer’s account of what transpired.

Legal Responsibilities  The personal trainer should prepare for each training session with safety as the first priority. – This provides a better experience for the client and increases the likelihood that the client will continue to utilize the trainer’s services.

 An inspection of facilities and equipment and a review of the protocols regarding supervision and instruction should be regularly performed.

Facilities  Personal trainers have an obligation to ensure that the facilities used are free from unreasonable hazards.  At the very least, the physical environment should be inspected each day prior to beginning any training session.  The inspection should consider the following issues: – Trainers should ensure that floor surfaces will cushion the feet, knees, and legs from excessive stress. – There should be sufficient free space available to protect the client from other patrons and from hurting him- or herself on equipment. – Functional lighting must be sufficient for chosen exercises. – There must be functional heating and air conditioning systems. – Proximity to drinking fountains and bathrooms is important for some clients.

Use of Public Spaces  In some jurisdictions it is illegal to train clients on public beaches, parks, or trails. – It is the trainer’s responsibility to know the local laws prior to using these areas.

 Once a “legal” outdoor area has been selected for a training session, the trainer should understand the potential dangers of the area. – Weather – Potential acts of God

 It is the trainer’s responsibility to ensure that the activities will not pose a significant risk for clients.

Equipment  All equipment should meet the highest safety and design standards and should be purchased from a reputable manufacturer.  Equipment must be regularly inspected and properly maintained.  Protocol for broken equipment – Once something is deemed unsafe, the personal trainer should immediately remove the equipment from the training area. – If quick removal is not feasible, the equipment should be disabled to prevent further use until repaired. – “Do not use” signs easily fall off and unsuspecting patrons may be injured when trying to use the broken equipment.

 Manufacturers typically provide maintenance schedules for equipment.

Discussion  You own a fitness center. A male client, approximately 24 years of age, sues your fitness center for negligence because he claims that one of the barbells caused his injury.

 His claim: While he was performing a shoulder press with the 25-lb barbells, one of the barbells came loose and fell on his right shoulder during the lift. Although the client reported the incident to the manager on duty, he decided to sue your facility for causing muscle and nerve damage to his right shoulder.

Negligence  The legal claim that a person failed to act as a reasonable and prudent person should, thereby resulting in injury to another person.

Negligence  Four factors must exist for negligence to be proven: – Presence of a duty (such as providing supervision of a class) – A breach of the legal duty of care (failure to act as a reasonable and prudent person would under similar circumstances) – Proximate cause of the injury (the action or failure to act caused the subsequent injury) – Substantial nature of the injuries or harm (the extent of the injuries)

Negligence

DUTY

Examples of Duties:

• Proper Instruction • Access to Medical Care • Safe Facilities • Appropriate Supervision • Teach safety procedures

Negligence

DUTY

Example: The facilities are dangerous. As an employee or personal trainer, you owe a duty to provide safe facilities. If you instruct in dangerous facilities and someone is hurt, thereby you may be liable for negligence.

Negligence

DUTY

Your supervisor may also owe a duty to provide safe facilities.

So if you teach in dangerous facilities and someone is hurt thereby, you may be liable for negligence but your supervisor may also be liable. You may BOTH be liable.

Negligence

BREACH

Breach = Failure to meet the standard of care

Negligence

BREACH

The standard changes based on things such as: • Participant’s age, preparation • Dangerousness of activity, etc.

How good do I have to be?

Negligence

BREACH

How is the standard determined? •Expert testimony •Professional standards (AAHPERD, NATA, Red Cross, ACE, ACSM)

•Reasonable, prudent, up-to-date would.

Negligence

BREACH

If I follow professional guidelines, am I safe from negligence claims?

Negligence

BREACH

Not necessarily. I must still act as would a reasonable, prudent, up-todate would. If the guidelines are bad, following them may be bad.

Negligence

Cause

The breach must be the cause of the harm. Not all breaches cause harm.

Negligence

Cause

I don’t have a lesson plan. A student is hurt because of dangerous equipment. Am I negligent because of the lack of a lesson plan?

Negligence

Cause

No. The lack of the lesson plan was NOT the CAUSE. If I am negligent, the cause would be the unsafe equipment.

Negligence

Harm

In most jurisdictions, the harm must be physical. Solely psychological or emotional harm is generally not sufficient for a claim of negligence.

Negligence

Harm

I breached a duty but the student was only scared, not injured. Can I be found negligent because the student was scared?

Negligence

Harm

No. Physical harm must exist in order to find negligence.

Negligence

Liability for negligence may exist even if you are not actively involved.

Negligence

• Agent/principal • Respondent Superior

Negligence

• Agent/principal Examples: Coach - athlete teacher - student teacher

Negligence

• Respondent Superior Example: Boss - Employee

Negligence

• Respondent Superior Risk management techniques: •Pre employment screening •Pre service training •Supervision •Good curriculum •In-service training •Workshops, conventions •Open minded evaluations of adverse incidents

Negligence

• Liability from 3rd party violence. Example: Your athlete has history of violence or uncontrolled anger. The game is intense and the player is getting angry. Should you take the player out of the game?

Negligence

Liability from 3rd party violence. If you leave the player in the game and the player’s anger causes injury to someone else, you could be liable. You may have breached your duty to protect from the foreseeable risk of unreasonable harm.

Negligence  Legal defenses against negligence:

Assumption of risk: Knowing, understanding, and appreciating the risk associated with a chosen activity. Contributory negligence: Behavior by the plaintiff that contributed to the injury.

Comparative negligence: Apportions (divides) damages between a negligent plaintiff and a negligent defendant who each played a part in the injury.

Negligence  Avoiding negligence:  General supervision: action required whenever activity is occurring by those for whom the person is responsible.  Specific supervision: mandated action required whenever a higher level of risk is associated with the activity of the persons for whom the adult is responsible.  Actual notice: refers to the removal of known hazards by a responsible person  Constructive notice: Refers to hazards that a responsible person should have noticed and eliminated.

Negligence  Several other steps to avoiding negligence:  Provide proper and clear instructions.  Ensure each participant’s fitness, conditioning, and ability levels are appropriate to the expectations.  Enforce safety rules and regulations.

 When injuries occur, the supervisor must respond appropriately.  Do not use inadequate, ill-fitting, or defective equipment.  Only qualified individuals should supervise physical activity.

Negligence  To understand the extent of your obligations to clients served, consider these example questions: – What are your obligations to a person who will be participating in a cardiovascular fitness test that involves a submaximal treadmill run? – As a personal trainer, what are your legal responsibilities for the welfare of your client who is participating in a strength training program?

Agreement to Participate

 A signed acknowledgement of a participant’s knowing, understanding, and appreciating the risks associated with an activity. Note: This is not a waiver form.

Informed Consent  An informed consent form can be utilized to demonstrate that a client acknowledges that he or she has been specifically informed about the risks associated with the activity in which he or she is about to engage. – Client gives consent to participate in an exercise program and/or have something done to him or her by the personal trainer (e.g., fitness assessments), and therefore can differ slightly from an agreement to participate

– Primarily intended to communicate the potential benefits and dangers of the program or exercise testing procedures to the client – Should detail the possible discomforts involved and potential alternatives

 The informed consent form, combined with oral communication, prepares the client for the positive and negative effects of certain types of exercise.

Vicarious Liability and Waivers 

Vicarious liability (also known as respondeat superior) means that employers are responsible for the employment actions of their employees.

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If an employee is negligent while working within the normal scope of employment, it is likely that the injured party will sue not only the employee, but also the employer or employers.

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The use of waivers is critical in personal training, as a properly worded exculpatory clause bars the injured from potential recovery.

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There are some potential issues that every personal trainer must investigate with an attorney prior to crafting a waiver.

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State-specific validity

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Types of activities and potential risks of injury that would be barred from recovery

Waivers typically do not protect the personal trainer from injuries directly caused by gross negligence.

Tort Law  Tort: a French word for wrong; a private or civil wrong or injury, other than breach of contract, suffered due to another person's conduct.  Tort law: a part of the civil law that provides remedies for acts that cause harm; therefore, injured parties may file civil lawsuits in an attempt to seek compensation for their injuries.

Tort Law  Tort damages are monetary damages that are sought from the offending party.  They are intended to compensate the injured party for the injury suffered.

Tort law imposes a duty on persons and business agents not to intentionally or negligently injure others in society.

Categories of Torts

Intentional Torts Unintentional Torts (Negligence)

Strict Liability Torts

Types of Tort  Intentional torts: injuries caused by intentional acts.

 Negligence: harm caused by careless acts or failure to perform a legal duty.  Strict liability: requires the person causing the harm to compensate the injured party without regard to fault.

Discussion  You own a fitness center. A male client, approximately 24 years of age, sues your fitness center for negligence because he claims that one of the barbells caused his injury.

 His claim: While he was performing a shoulder press with the 25-lb barbells, one of the barbells came loose and fell on his right shoulder during the lift. Although the client reported the incident to the manager on duty, he decided to sue your facility for causing muscle and nerve damage to his right shoulder.

Cole v South Tweed Heads Rugby League Football Club Ltd [2004] HCA 29 Facts: 

Ms. Cole attended a champagne breakfast at the South Tweed Heads Rugby League Football Club.

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She spent the day drinking at the Club.

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The Club stopped serving Ms Cole after 12:30 pm, but her friends provided her with drinks for the rest of the afternoon.

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At 5:30 pm the Club’s manager asked Ms. Cole to leave the premises after she was seen behaving indecently with 2 men.

Cole v South Tweed Heads Rugby League Football Club Ltd 

The manager offered Ms. Cole a taxi home, but Ms. Cole

rejected the offer in blunt and abusive terms. 

She then left the Club with the 2 men, who assured the manager that they would take care of her.

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At 6:20 pm Ms. Cole was struck by a car near the Club and was seriously injured.

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She was found to have a blood alcohol concentration of 0.238%. Who was responsible for Ms. Cole’s injuries? Why?

Who was responsible for Ms. Cole’s injuries?

Issues before the court: 

Did the Club owe a duty to take reasonable care: 

to monitor and moderate the amount of alcohol served to

Ms. Cole? 

that Ms. Cole travelled safely away from the Club’s premises?

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Does a general duty of care exist to protect persons from harm caused by intoxication following a deliberate and voluntary decision on their part to drink to excess?

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Did the car driver owe Ms. Cole a duty of care?

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Did Ms. Cole in any way contribute to her own injuries?