May 6, 2020

Selling or Recommending Supplements? Know Your Risk

SELLING OR RECOMMENDING SUPPLEMENTS? KNOW YOUR RISK

Many clubs, fitness facilities, fitness professionals and personal trainers have added the sale of products to their business plans – including vitamins, nutritional supplements, and sports drinks. The demand for these products has spun nutritional supplements into a 40 billion-dollar industry. Despite rising popularity, fitness professionals need to consider the potential liability associated with selling supplements.

Unlike prescription drugs, the sale of supplements is not regulated by any governmental agency. The supplement industry is largely self-regulated, which may result in the spread of inaccurate information about some supplements and the distribution of faulty products, or those which don’t live up to their advertisements. Some products may even be harmful for some clients and negatively interact with other similar products or prescription medications.

From the Aerobics and Fitness Association of America (AFAA):

[T]hose recommending nutritional supplement products to consumers, and those actually involved in providing or selling such products to consumers, may well have increased ethical, professional, and legal duties and responsibilities to ensure that the products they recommend, sell, or provide are relatively safe for consumption and/or are beneficial to the user. This conclusion is due in part to the fact that such products are not “sanctioned” by any government agency and that there is often only limited information and research findings available from non-manufacturer sources as to the safety and efficacy of many of these products.

As a fitness professional, what can you do to avoid liability?

STAY INFORMED

A plaintiff in a product liability case must prove that the product that caused injury was defective, and that the defect made the product unreasonably dangerous. There are three types of defects that might cause injury and give rise to supplier liability:

Design Defects – Present in a product from the beginning, even before it is manufactured, in that something in the design of the product is inherently unsafe
Manufacturing Defects – Those that occur in the course of a product’s manufacture or assembly
Marketing Defects – Flaws in the way a product is marketed, such as improper labeling, insufficient instructions, or inadequate safety warnings

STAY PROTECTED

Supplements are considered “products.” Professional liability with CPH Insurance allows you the opportunity to add commercial general liability.

Per the terms and conditions of the policy, professional liability combined with commercial general liability for wellness and fitness professionals helps defend against product liability claims from individual clients or patients to whom you directly render wellness or fitness services. This does not include defense against mass product sales to non-clients via in-person or online sales.

Simply put, general liability insurance is designed to protect you in the event you’re held liable for bodily injury on the premises you provide services and in instances where there is injury caused by a product that you recommended or sold to one of your individual clients. Click here to get a quote and apply online to protect your professional practice as a wellness or fitness individual or business entity.

Footnotes

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CPH Insurance

Over the last decade, more than 500,000 people chose CPH Insurance for liability insurance. Because our business is specialized, we are able to focus on your liability needs in a way that bigger companies are not. Our team of associates represent over 50 years of collective experience in this field, and we are able to serve a large client base while maintaining a small-office approach.

January 3, 2019

Fitness Standard of Care

January 2019

In recent years the personal training industry has been growing rapidly. According to the National Strength and Conditioning Association (NSCA), it is expected that the fitness industry will grow at least 24% between 2010 and 2020. Some may consider this type of growth alarming considering the limited regulations within the personal training industry. In most states there is no legal requirement for personal trainers to have any credentials or experience before employment. Since there is little regulation, a common misconception among gym owners is they can hire trainers without any credentials and avoid liability by simply having customers sign a waiver. However, there is no document a customer can sign that waives liability if an owner or staff member is negligent. In the event a personal trainer is not reasonably qualified and he/she injures a client, the gym will likely be held liable. The gym has a responsibility to hire qualified staff and to provide every customer with a safe environment.

Often times, employers do not require their employees to have any previous personal training experience or possess an accredited certification. This presents professional liability concerns and directly violates the standard of care because a personal trainer is considered to be an authority in a gym setting. The standard of care applies to all industries regardless of whether or not there is any government regulation. By definition, the standard of care is the only degree of prudence and caution required of an individual who is under a duty of care. Providing customers with a trainer that is not qualified is misleading and can result in serious injury. It is reasonable for a customer to believe that the trainer is qualified and at the very least holds a legitimate certification.

When a trainer works with a client, the trainer is responsible for the client’s well being, and he/she must fulfill their duty of care by providing a safe exercise program and environment for every person they train. All accredited personal training certifications have similar guidelines and clearly state how fitness professionals that hold their certification must conduct themselves and the legal guidelines. Violating these guidelines puts the client at risk and thus is a breach of the standard of care. Some examples of violating the standard of care are operating outside of your scope of practice, misusing a piece of equipment, writing a diet for a diabetic client, continuing to train a client after they tell you they are having blurred vision, and not properly spotting a client during a training session. In the event a trainer injures a client because they do not prescribe exercises that follow their certifications guidelines, the trainer and even the gym may be liable. For example, a breach of the standard of care would be if a trainer has a client who cannot perform a basic squat start to do explosive jumping exercises, which are considered advanced exercises. While the industry is filled with myths and legends, one of the few things everyone agrees on is that a trainer must start their client with simple exercises and should not increase the difficulty until the client proves proficiency. If the plaintiff can prove that the employee regularly violated the standard of care and the employer ignored it, then the employer may be just as liable as the employee.

In conclusion, it is imperative that gym owners educate their staff and personal trainers adhere to the guidelines set by their certifying agency. Until there is a legal requirement or insurance companies step, many gyms will continue hiring trainers that are not qualified. This lack of regulation affects everyone because the more the industry grows, the more people that will be at risk for injury. More injuries mean more emergency room visits and more orthopedic surgery, which cost insurance companies tens of thousands of dollars. Insurance companies could greatly minimize their risk by offering incentives to gyms that are strict about staff education. If professional associations mandated a minimal standard for the gym and its staff, the occurrence of injuries could certainly be reduced in efforts to reduce liabilities.

References (accessed online 21 November 2018):

Roy Benson, “Ask the Coaches: Running with Hand or Ankle Weights,” Runner’s World, 19-Aug-2010. [Online]. Available: https://www.runnersworld.com/advanced/a20833357/ask-the-coaches-running-with-hand-or-ankle-weights/. [Accessed: 20-Nov-2018]

D. I. Melton, J. A. Katula, and K. M. Mustian, “The Current State of Personal Training: an Industry Perspective of Personal Trainers in a Small Southeast Community,” National Center for Biotechnology Information, May-2008. [Online]. Available: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4021014/. [Accessed: 20-Nov-2018]

P. Moffett and G. Moore, “The Standard of Care: Legal History and Definitions: the Bad and Good News,” National Center for Biotechnology Information, Feb-2011. [Online]. Available: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3088386/. [Accessed: 20-Nov-2018]

Brandi Binkley, “The Future of Personal Training: Where is the Industry Headed?,” National Strength and Conditioning Association, Oct-2015. [Online]. Available: https://www.nsca.com/education/articles/career-articles/the-future-of-personal-training-where-is-the-industry-headed/. [Accessed: 20-Nov-2018]

This was a guest blog written by Charles DeFrancesco, Master Trainer with over 18 years of experience. He is certified by NFPT, NASM, NASM CES and holds specialties in flexibility, cancer, heart conditions and pregnancy. Charles is the chairman of the NFPT Board of Education and has written a variety of continuing education courses for NFPT. In addition to owning The Arena Fitness, Charles also works as an expert witness. For more information, click here!

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Guest Author

August 1, 2018

Club Member’s Claims of Willful and Wanton Conduct to Proceed Against Personal Trainer and Health Club

Avoiding Liability Bulletin – August 2018

As we have recommended several time in this column, pre-activity waivers of liability often protect fitness professionals and fitness facility from injury claims based upon negligence – at least in those states where those documents are recognized as being legally effective. However, as we have also previously pointed out, claims beyond mere negligence – ones for gross negligence, willful/wanton conduct or even criminal activity will not be barred by executing a pre-activity waiver document.

Due to the foregoing, some personal injury claims are being put forth alternatively based upon claims of negligence and gross negligence or willful/wanton conduct in efforts to avoid the effectiveness of pre-activity waivers of liability. In some cases, based upon the proof of specific facts and the so-called standards of the industry, court decisions regarding the effectiveness of pre-activity waivers of liability will allow cases to proceed to trial on willful wanton or gross negligence allegations.

In a very recent case from Illinois for example,[i] the plaintiff, while exercising at the defendant club under the supervision of the club’s personal trainer, slipped and fell of an unsecured piece of equipment, specifically a plyometric step.

Her complaint alleged that:

. . . during seven weeks of workouts before the date of the accident, Drake had instructed plaintiff to use the plyometric step, but “only in the rubber floor area of the fitness facility,” where “the plyometric step was secured against a solid surface, e.g., . . . a wall, as to prevent it from moving while being utilized.” But on the day of the accident— November 29, 2012—Drake placed the plyometric step “in the carpeted area” of the fitness facility, where it “was not secured against a solid surface,” nor did the step contain “anti-slip or anti-skid feet” or “ridges on the bottom of it.” And due to its age, “the bottom of the plyometric step was worn off and it had a smooth surface.”

The complaint alleges that Drake knew the step was unsecured and knew about all of these aspects of the step that made it prone to slipping. It also alleges that, before starting the step exercises, “[p]laintiff told Chad Drake that she did not feel safe performing the exercise and utilizing the plyometric step” because it “was freestanding and not secured against a flat surface” as it always had been in the past; she also told Drake that she did not feel safe using the step “on the carpeted area” of the facility. The complaint alleges, however, that “Drake insisted that Plaintiff utilize the plyometric step” and “assured Plaintiff that she would be safe even though he knew the step was unstable.” After plaintiff performed one set of exercises, she “again expressed her concern for her safety” to Drake, but Drake “insisted that what Plaintiff was experiencing was just a mental block and instructed her to ‘get over it’ and continue performing the exercise.”

Plaintiff alleged that during the third set of repetitions, the plyometric step “moved backwards, causing [her] to fall and make contact with the fitness center floor with great force.” She alleged that Drake had moved away from her at that moment—he was putting away another piece of equipment—and thus failed to brace her or catch her.

The plaintiff alleged that the club’s personal trainer employee:

. . . created an unsafe condition, an unbraced plyometric step, made unsecured because he moved it from a rubber mat against a wall to a carpeted area out in the – 9 No. 1-17-0388 open gym, and because the step had no anti-skid features and was worn smooth on the bottom due to age. Drake knew it was unsecured and unsafe. Plaintiff told him she did not feel safe using it. Drake “insisted” that she use it, anyway. When plaintiff stopped after the first round of exercise, again expressing concern for her safety, he again “insisted” she continue and told her to “get over” her concern. And then he walked away, so when she fell, he was not there to stabilize her or catch her.

As a result of the foregoing, the plaintiff filed suit against the health club and the personal trainer for both negligence as well as willful and wanton conduct. She also sued the club under a theory of respondeat superior for the conduct of the trainer which she contended rendered it liable for the actions of its employee.

The trial court determined that the pre-activity waiver barred the negligence claims against the defendants and also dismissed the willful and wanton claims against the club while leaving those claims against the personal trainer in place. The plaintiff appealed and contended that the club should be liable for the personal trainer’s willful and wanton actions.

The appeals court ruled that there were more than sufficient allegations pled by the plaintiff to withstand the club’s motion to dismiss the plaintiff’s willful and wanton allegations. In this specific regard, the court ruled that the allegations set for “a conscious disregard for the plaintiff’s welfare” or an “utter indifference” to her safety as well as a “failure to take reasonable precautions after knowledge of impending danger.”

The appeals court thereafter ruled “if [the allegations] . . . are good enough for a direct claim against [the personal trainer] . . . , they are good enough for a respondeat superior claim against his employers for that very same conduct.” Although certain “buzzwords” associated with such conduct were not stated in the complaint, the appeals court ruled that the complaint factually set forth sufficient facts to state a cause of action.

Putting aside the legal issues of this action, personal trainers and other fitness professionals should wonder why there was any deviation from what was normally done in the placement of the plyometric step which is alleged to be contrary to what appears to have been established policy. If so, why the deviation? Assuming the allegations are true, were there clear and supportable reasons for such a deviation? If so, what are they, particularly as to a step which based upon the court’s description, should perhaps not have been used at all, no matter where placed?

While this case is awaiting proof of facts at trial and a final verdict, personal trainers and other fitness professionals should take note of the appellate court’s decision. Any deviations from clear facility policy as to the use of exercise/activity equipment should be carefully considered. If deviations are to occur, supportable and justifiable reasons must be documented in facility records and set in accordance with industry standards of care.

[i] Papadakis v Fitness 19 IL 116, LLC, et al., No. 1-17-0388 (Court of Appeals, Illinois, First District, Fourth Division, June 28, 2018).

This publication is written and published to provide accurate and authoritative information relevant to the subject matter presented. It is published with the understanding that the author and publisher are not engaged in rendering legal, medical or other professional services by reason of the authorship or publication of this work. If legal, medical or other expert assistance is required, the services of such competent professional persons should be sought. Moreover, in the field of personal fitness training, the services of such competent professionals must be obtained.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

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David Herbert

July 6, 2018

Exercise Equipment Injuries and Claims and Suits – Defending against Litigation

Avoiding Liability Bulletin – July 2018

As we have pointed out in various articles in this column, exercise equipment use by fitness facility clients can lead to injury and then claim and suit. While treadmills may account for a significant segment of these kinds of incidents, any exercise device can lead to injury and then claim and suit. Oftentimes, frequent pre-use inspections can help avoid some such injuries and sometimes then prevent claims and suits from ever arising or at least provide an effective defense to such litigation. To be sure, inspections are useful in defending litigation.

Readers should remember that regular inspections of equipment can go a long way to assist in the defense of exercise equipment litigation.[1] While daily inspections may not be required by most industry standards, inspections on a regular basis will certainly assist to document adherence to those standards and thus help in establishing a lack of negligence.[2] For example, in a 2015 case from California[3] a facility’s usual pattern of daily exercise equipment inspections greatly assisted it in the defense of an exercise equipment injury litigation. In another case,[4] which we previously reviewed in this column,[5] monthly equipment inspections were deemed to be adequate to defend against a personal injury case where the plaintiff failed to present more stringent inspection requirements via expert opinion and/or industry standards.

Evidence of regularly conducted inspections of exercise equipment can be supported by industry standards and thus meet legal requirements. As pointed out in the relatively recent California litigation on this issue,[6] the court ruled that the defendant club “took several measures to ensure that its exercise equipment and facility were well-maintained. For example, [the evidence showed] it hired a facility technician whose job was to conduct a daily inspection of the facility and perform preventative maintenance. If the facility’s technician was unavailable . . . [the club] had a practice of requiring other staff members to conduct the inspection and perform any required maintenance. In view of these measures [the club] . . . cannot reasonably be regarded as demonstrating a want of scant care or a departure from the ordinary standard of conduct.”

The point is that evidence of regularly conducted inspections can to a long way to defend against exercise equipment injury cases. In order to properly do so, equipment records must be developed, then properly and regularly completed and preserved for later use as defensive measures when needed. A lack of regularly conducted inspections, as well as a lack of subsequent maintenance as required and equipment repair/replacement can result in successful litigation against facilities. Once record keeping is established for exercise equipment, regular notes of inspections, maintenance and repair must be maintained and preserved for potential later use. No facility or fitness professional risk management plan should exclude such measures.

[1] See, Herbert, Daily Inspection of Exercise Bank Helps Win Defendant’s Verdict – Upheld on Appeal, https://www.cphins.com/daily-inspection-of-exercise-band-helps-win-defendants-verdict-upheld-on-appeal/

[2] See, Herbert, Are Monthly Fitness Equipment Inspections Sufficient to Avoid Negligence Claims? https://www.cphins.com/are-monthly-equipment-inspections-sufficient/

[3] Grebing v. 24 Hour Fitness USA, Inc., 012915CAAPP2, B28866A, California Court of Appeals, Second District, Third Division, January 29, 2015.

[4] Willard v K Smith Holdings, 111517 WICA, 2016AP2431, Court of Appeals of Wisconsin, District II, November 15, 2017.

[5] See, footnote 2 supra.

[6] See, footnote 3 supra.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

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David Herbert

April 3, 2018

Personal Trainers Take Note: Screening Standards Have Changed

Avoiding Liability Bulletin – April 2018

In late 2015, we reminded personal trainers and other fitness professionals of their obligation to screen clients for activity prior to recommending participation in exercise programs. At that time, we stated:

While no clear legal precedent has yet been judicially imposed upon fitness professionals to mandate screening for their clients prior to the commencement of activity programs, the industry seems to have overwhelming adopted some form of pre-activity screening as part of the standard of care owed by fitness professionals to clients.

This industry view on client screening is still in place but it has now been reformulated to an extent to make it a simpler and more streamlined process. Some clients must still be screened before recommending an exercise program but fitness professionals should understand the process.

Recently, the American College of Sports Medicine restated its ACSM’s Guidelines for Exercise Testing and Prescription[1] which in essence revamps the screening process for clients intent on becoming more physically active. The new screening recommendations provide that as to those individuals without known cardiovascular, metabolic or renal disease and with no signs, symptoms or indications of such conditions that prior medical evaluation and clearance is not a necessary prerequisite to the commencement of light to moderate intensity exercise activity even if they have not previously participated in a regular program of exercise.[2] As to individuals with known cardiovascular, metabolic or renal disease but who are asymptomatic, the new ACSM Guidelines also provide that medical clearance for participation in moderate intensity exercise programs is also not necessary provided they have previously engaged in regular exercise activity as defined by ACSM.[3] As to individuals who have signs or symptoms suggestive of cardiovascular, metabolic or renal disease, ACSM’s recommendation is that they secure medical clearance prior to participation in exercise programs even if they have participated in regular exercise programs before and that they stop exercise until they have secured medical clearance. Lastly, as to individuals who have not participated in a regular exercise program, the ACSM recommendation is for medical clearance first if they have such known specific diseases or signs or symptoms suggestive of such diseases.

The new ACSM statement is designed to remove some of the barriers to exercise by some participants that previously should have secured medical clearance prior to participation in exercise programs. This new standards statement may also make it less burdensome for personal trainers and other fitness professionals in their efforts to secure medical clearance for clients prior to their participation in exercise activity programs. In fact, the subset of clients who can engage in light to moderate exercise activity under ACSM’s statement without medical clearance should be expanded as a result of the statement.

As some commentators have indicated, “exercise preparticipation health screening recommendations should not present unnecessary obstacles that deter people from adopting and maintaining a regular exercise program.”[4] The new ACSM standard is designed to remove some such unnecessary obstacles.

Fitness professionals, particularly personal trainers working with new clients, should determine in the screening process if clients do or do not have the specified diseases or specific or observed symptoms or signs suggestive of such diseases and if clients do or do not engage in regular exercise activity prior to participation in a fitness professional recommended activity. For those clients who are covered by the new ACSM recommendations, prior medical clearance may not be required but for those with specific diseases identified in the ACSM Guidelines or with signs or symptoms of such diseases and no history of regular previous exercise activity, prior medical clearance seems to be required under the new standards statement.

As we pointed out two years ago in this column, screening is a duty established by the industry to which professionals can be held accountable. New developments in standards statements issued by prominent exercise groups like the ACSM need to be reviewed, considered and utilized in the screening process so that professionals may comply with what will surely become part of their legal standard of care in the event of client injury and claim/suit. All fitness professionals should become familiar with ACSM’s new recommendations and adopt them as they see fit to their client practices. While ACSM’s new standard is not the law per se, such a statement will probably be used by experts in evaluating client care provided by fitness professionals. However, when fitness professionals are in doubt or when they wish to utilized a more conservative approach, prior medical clearance will always be a safer risk management technique to help the fitness professional and the client alike in avoiding any untoward event and any subsequent claim and/or suit.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

[1] 10^th Edition (2018).

[2] 30 minutes at moderate intensity, 3 days a week for the past 90 days.

[3] Id.

[4] Riebe, et al, “Updating ACSM’s Recommendations for Exercise Preparticipation Health Screening”, Medicine and Screening in Sports & Exercise; November 2015, Volume 47, Issue 11, pages 247-249.

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David Herbert

March 1, 2018

Are Monthly Equipment Inspections Sufficient?

Avoiding Liability Bulletin – March 2018

A Case in Point

In a relatively recent case from Wisconsin, a trial court and then an appeals court were faced with determining whether or not a fitness facility could be found liable for injuries a client suffered while using an exercise machine at the club.[1] A big issue in this case centered upon how frequent and how detailed equipment inspections have to be to enable an injured party to recover upon his claim of negligence.

The Testimony

The case was filed by a facility user directly, without counsel. He alleged he was injured while using an exercise machine at the facility which was a lap pull-down kind of machine. The plaintiff described the injury he suffered on the machine as follows:

“It’s like a pulley system bar and I had about two hundred pounds on it. And I was going for the pull-down portion . . . the cable snapped and the bar came down and into my forehead causing my mouth to clamp shut tight, put a gash in my forehead. There was some bleeding. I chipped the front of my tooth off, had some bleeding in my mouth, and was taken by ambulance to the hospital for a CAT scan and they told me that I had suffered a concussion.”

The user also testified that he had been trained to properly use the pull-down machine when he first joined the gym.

Once the plaintiff completed his testimony, defense counsel moved to dismiss the case for a lack of proof due to the lack of medical and causation evidence. The plaintiff countered the motion by specifying that he was only seeking damages for pain rather than medical expenses. The trial court concluded that the plaintiff made out a basic case and that he could be awarded damages for pain and suffering if he could prove negligence.

The defense then offered the following testimony from the owner of the facility:

The owner testified that safety inspections were conducted on the pull down machine “on a monthly basis” and “we do a visual equipment inspection so we go through and we ensure that there’s no fraying or wearing on any of the cable[s].”

The owner also clarified that “we do replace cables pro-actively.” He noted that a “basic equipment inspection” was conducted sometime in July 2014, prior to the injury on August 29, 2014.

The plaintiff was then offered the opportunity to cross examine the owner about the facility’s equipment inspection procedures. The cross examination went as follows:

Q: Could you tell me then: Have you ever had an issue where you have not seen the cables broken or busted; somebody has pointed that out to you? A: You mean as far as a member pointing out something? Q: Right. A: Yes, that’s [what] happened. Q: So maybe you missed something? A: Possibly. We have, you know, I wouldn’t say that we’ve had every single one, you know, caught it but when we’ll usually see signs of wear then we pro-actively replace that cable.

On redirect examination, the owner testified that the machine did not show any observable wear or fraying of the cable.

The defense also presented testimony from the club manager and in this regard, the court noted the following:

She was present at Anytime Fitness on the day of the accident and had reviewed a video of the accident. The manager explained that, in her opinion, Willard had been improperly using the pull-down machine when the cable broke. The manager additionally testified that “[w]e have re-enacted [Willard’s use of the machine] through video using trainers and staff and found it impossible to use that weight properly with proper form at any level.”

In the face of this testimony, the plaintiff contended that he used the machine in the exact way he had been taught to do so by the facility’s staff.

The Court’s Decision

Once the testimony concluded, the court determined that the plaintiff failed to prove negligence. In this regard the trial court stated:

[T]he burden is on the plaintiff to show by a preponderance of the evidence that the defendant fitness center did not use reasonable inspection and reasonable maintenance of its equipment and facilities. The testimony here from the owner of the facility was that they have a procedure where they do a monthly visual inspection of the cable to try to observe any types of cracking or tearing or fraying or any possible defects that might exist in the cable and if they observe that then they will proceed to fix it or replace the particular cable. There was an inspection of this cable of this machine and it was done in the month preceding and the month of and the month after. And before the incident, it doesn’t appear that the inspections revealed any defects or any areas of concern that the plaintiff had in regards to the cable.

In this regard, the trial court also pointed out that there was no evidence presented to it that the club’s inspections were not adequate. In this regard, the court noted:

“[t]here hasn’t been any testimony here regarding periodic changing of cables, that a manufacturer says every five years you need to change the cable” and “[t]here hasn’t been any testimony that there needs to be a more rigorous daily inspection here.”

Essentially, the plaintiff failed in his attempt to establish negligence because he presented no evidence as to what kind of maintenance was necessary based upon the manufacturer’s suggested maintenance instructions or industry standards.

The Appeal’s Court Opinion

While the plaintiff appealed the trial court’s decision, the appeals court noted the following:

It is true that the owner testified that it was possible that the inspections “missed something,” but the owner also testified that the particular cable at issue showed no signs of wear and therefore any defect was undetectable by visual inspection. As the circuit court noted, Anytime Fitness conducted one of its monthly inspections prior to the accident. Aside from his pointed cross-examination of the owner, [the plaintiff] . . . provided no evidence showing that Anytime Fitness’s inspection procedures were lacking. He provided no evidence that Anytime Fitness should have known that the cable was defective or should have been replaced sooner. Nor did he provide any evidence concerning how long the cable was expected to last. Accordingly, the court found that . . . [the plaintiff] had not proved that these procedures were negligent, and that [the trial court’s] finding is a reasonable one sufficiently supported by the evidence.

What Kind of Equipment Maintenance is Required

Manufacturer’s Recommendations

Notwithstanding the fact that this case was filed by the injured party without counsel and that the required evidence was not presented, the question arises as to what kind of maintenance is required for exercise machines so that claims like this can be avoided. As a starting point the instructions provided by machine manufacturers should be reviewed and followed as to equipment inspections, maintenance procedures and replacement requirements for worn or broken parts. Recommendations for equipment replacement should also be noted and efforts made to comply with all of these instructions or recommendations.

Industry’s Standards and Guidelines

Aside from manufacturers’ recommendations, industry standards and guidelines should also be reviewed and implemented when appropriate. Such standards, including the American College of Sports Medicine’s (ACSM’s) Health/Fitness Facility Standards and Guidelines, Fourth Edition, 2012 provides a framework of preventive maintenance practices for exercise equipment. Recommendations for daily cleanings, weekly inspections and monthly lubrications and as needed, repairs and replacements, are put forth in this statement. The maintenance recommendations include weekly equipment inspections and recommendations for the tightening of any loose items upon an as needed basis. Had the plaintiff in this case put forth these kinds of standards, a different result may have arisen in this case. Fitness professionals should take note and govern their inspection and preventive maintenance practices accordingly!

The Bottom Line

All fitness professionals should review equipment manufacturers’ recommendations as well as industry standards and guidelines to determine what maintenance activities should take place on a daily, weekly, monthly and regular basis. Adherence to such schedules can go a long way to avoid injuries in the first place and resulting claims and suits.

Footnotes

[1] Willard v K Smith Holdings, 111517 WICA, 2016AP2431, Court of Appeals of Wisconsin, District II, November 15, 2017.

Adapted from a Declaration of Principles of the American Bar Association and Committee of Publishers and Associations

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