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.

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  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 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.

Sample Case for Discussion Negligence Plaintiff claimed trainer dropped barbell on face Case Type:

Negligent Training, Recreation - Gym, Affirmative Defenses - Assumption of Risk

Case Name:

Assaf Blecher v. 24 Hour Fitness USA Inc. and David Stevens, No. BC433630

Venue:

Superior Court of Los Angeles County, Central, CA

Judge:

Robert L. Hess

Date:

03-28-2012

Sample Case for Discussion  On Jan. 26, 2010, plaintiff Assaf Blecher, 38, a member of the 24 Hour Fitness facility, was participating in a personal training session with his trainer, David Stevens, an employee of the gym, when the trainer dropped a 145-pound barbell on Blecher's face.

 Blecher sued Stevens and 24 Hour Fitness USA Inc. He alleged that Stevens was grossly negligent in the handling of the barbell, and that the fitness facility was liable for trainer's actions and for negligently training Stevens.

Sample Case for Discussion  Plaintiff's counsel contended that Stevens' actions constituted gross negligence by failing to follow safety procedures that were the standard in the fitness industry, such as gripping the barbell in the proper manner, undertaking spotting responsibilities for weight that was heavier than he could handle at the time, and failing to seek assistance once he recognized Blecher's exhaustion. Counsel also contended that the fitness center was grossly negligent in its failure to properly educate its trainers on safety techniques that could have prevented or minimized the risk of injury.

Sample Case for Discussion  Defense counsel argued that neither the actions of Stevens nor 24 Hour Fitness constituted gross negligence, and that Blecher assumed the risks associated with the activities. Counsel also argued that Blecher was at least partially negligent for the accident because he did not hang onto the bar.  Defense counsel moved for summary judgment based on the signed liability waiver that is contained within the membership agreement. Plaintiff's counsel opposed the motion by alleging that the actions of the trainer and the club constituted gross negligence, which would be outside the scope of the release, per City of Santa Barbara v. Superior Court (2007) 41 Cal.4th 747,758. The court ultimately denied the defense counsel's motion.

Sample Case for Discussion  Blecher sustained nasal fractures and cheek bone fractures, and was subsequently transported to a hospital, where an emergency plastic surgery was performed. It was also determined that Blecher suffered nerve damage to the infra orbital nerve as a result of the facial fractures and he ultimately developed a temporomandibular joint disorder.

 Blecher claimed that the nerve damage caused a permanent loss of sensation to part of his face.

Verdict?  The jury found that both Stevens and 24 Hour Fitness were negligent, and awarded Blecher $892,650 in damages.

 Assaf Blecher  $142,650 Personal Injury: special damages  $750,000 Personal Injury: general damages