By Ron Miller
Club Industry, March 2002
Copyright 2002 by PRIMEDIA Business Magazines & Media Inc.
“All Rights Reserved”
If a client is injured during a personal training session, there is potential legal exposure for the personal trainer. The following information shows some ways to help your trainers eliminate or at least decrease the likelihood of legal problems.
An exculpatory clause is language contained in a waiver that releases a party from negligent acts that cause injuries that occur from that party’s mistake[s]. A waiver with an exculpatory clause will, in most states, absolve a personal trainer from responsibility for her own negligence. In other words, there is no liability even if a trainer’s mistake caused the client’s injury. An exculpatory clause must clearly state in readily understandable terms that the released party will be free of all liability. You can borrow language from your club’s release or, if the trainers are willing to bear the expense, they can contact a lawyer for release language that has been accepted by courts in your state. [At health clubs I have owned, we utilized the identical language used in our exculpatory clause that was found clear and unambiguous by a Maryland court that addressed health club and personal trainer liability.]
The club and trainer need to make sure the client executes a separate contract for personal training services that contains an exculpatory clause. There is little security in relying on the membership contract’s exculpatory clause. The contract may protect the club from liability without protecting its employees or agents personally. The injured party can also argue that the release in membership contract does not apply because a separate contract wasmade to obtain the services of a personal trainer that are outside of the scope of the membership agreement.
Finally, ascertain the law of your state regarding the applicability of exculpatory clauses to health clubs. Most states enforce exculpatory clauses in the health club context but a minority of states find that fitness is so “essential to human life” as to make exculpatory clauses void because they are against public interest.
Whether training as an employee or an independent contractor, the relative low cost of obtaining insurance for personal training- approximately $200 annually – makes the acquisition of professional liability insurance a no-brainer for many trainers. The American Council on Exercise [ACE] suggests a minimum policy of $500,000; a $1 million policy provides a great deal more protection at little additional cost. The policy should include a “duty to defend.” This is critical because defending even a frivolous lawsuit can be costly to the club and the trainer.
While this advice may be a sad commentary on today’s litigious society, it is important not to admit fault or apologize to the client after an accident. The trainer’s apology may not be for negligence but rather for a piece of equipment that broke. This innocent statement could be later construed as evidence of an admission of liability. Instead, the focus should be on attending to the injured client. Err on the side of calling emergency personnel to tend to the client to help avoid further claims.
The legal standard for liability for a personal trainer is whether the trainer breached the standard of care that would be exercised by a reasonably, ordinary personal trainer. In other words, doing something [or not doing something] that a reasonable personal trainer would do [or would not do]. Accordingly, make sure that your trainers are armed with all of the weapons that a personal trainer should have. Make sure they are educated about the craft by attending seminars, reviewing peer and medical literature on exercise related topics, and staying abreast of current practices and procedures – whether funded by the club or on their own. And, of course, make sure all certifications are current, especially first aid and CPR.
While accidents will happen, not protecting your club and your staff shouldn’t be one of them. By taking a proactive, legallysound approach to your personal training program today you may save yourself, your staff, and your club a lot of work and expense down the road.
Ron Miller is an attorney and law professor who owns health clubs in the Baltimore metropolitan area. His practice focuses on personal injury, small business and pharmaceutical litigation. He can be reached at 410-779-4600.