Innovations - IHRSA

Keeping Clubs safe & sound
argument has shifted to being either that the club didn’t
use the AED when it should have, or, if it did use an AED,
that it didn’t do so quickly enough.”
A New York court recently dismissed a case involving the
death of a club member, as the result of complications from
heart failure. The individual involved collapsed while using
a treadmill. Another club member, who’d seen what had
happened, notified a front-desk employee,
who dialed 911 and then searched for a key
to a cabinet holding the AED. A second
employee began administering CPR.
After several minutes, paramedics arrived
and employed their defibrillator during the
course of the emergency response, which,
ultimately, was unsuccessful.
The plaintiff’s estate argued that the failure
to use the club’s AED on the victim in a
timely fashion had caused, or contributed
to, his death. The court, however, held that
heermance
he’d assumed the risk of cardiac arrest by
engaging in aerobic exercise. It also found
that the club was in compliance with its
statutory obligation to have an AED and
trained personnel on-site during business
hours, and that contacting 911 and performing
CPR constituted a reasonable emergency
response. The court thus concluded that the
failure to successfully open the cabinet and
use the AED wasn’t an omission giving rise
to liability.
“As can be seen from this case, health
clubs should undertake to train employees to
perform an adequate emergency response,
Baumgarten
including an immediate telephone call to 911
emergency services and the beginning of CPR
efforts, if necessary,” suggests Heermance. “The use of an
AED, when appropriate, may also be useful.
“However,” he adds, “clubs should understand that
the failure to utilize their AED in response to a cardiac
event isn’t, from a liability standpoint, necessarily fatal,
particularly when other emergency response actions
have been taken immediately. In many jurisdictions,
these beginning steps are enough to protect the club
under applicable good Samaritan statutes.”
use equiPmenT fiTTinGly
Douglas Baumgarten, the president of SportFit Consulting,
based in Aldie, Virginia, points out that many cases of
LIABILITY WAIVErS CAN BE SAVIOrS
38 Club Business International | APrIL 2010 | www.ihrsa.org
fitness-equipment misuse also involve overzealous personal
trainers. “There are some fitness professionals out there
who think that the crazier the exercise, the more it enhances
their reputation as a tough and innovative trainer.”
As a result, he acknowledges, some trainers lead deconditioned
nonathletes to attempt difficult exercises that
may put them at risk of injury.
Baumgarten served as an expert witness in a 2009
Texas case involving a plaintiff who’d fallen off of a popular
training device during a session with a personal trainer
at a gym. She claimed that, as a result, she’d fractured
both wrists and suffered other injuries. The plaintiff sued
the gym; the trainer, for having her use the device in a
manner not recommended by the manufacturer; and
the manufacturer, charging that the warnings on the
equipment were inadequate since the company knew
trainers were misusing the device.
The jury found no negligence or product defect on the
part of the manufacturer, but it concluded that the trainer
was 85% negligent, and the plaintiff, herself, 15% negligent.
It could have awarded her as much as $1,818,575, but,
because of a high-low agreement reached before the onset
of the trial, the award was capped at $1 million.
The lesson here is simple, says Baumgarten: “Use
equipment in the way it was intended—if you don’t,
you’re liable.”
mAinTAin ProPerTy ProPerly
A liability waiver, as important and valuable as it is,
typically won’t protect a club if it fails to maintain its
facilities properly. This was demonstrated in 2006, when
a California court ruled that a waiver didn’t protect a club
from liability for injuries suffered by a patron who’d fallen
on a pool deck made slippery by the growth of algae. “The
risk of algae growing on the pool deck, causing it to
become dangerously slippery, is not inherent in the sport
itself, and is not a risk assumed by those who utilize the
swimming pool, so as to relieve the pool owner of the duty
to keep the deck clean,” the court wrote.
“In California, as a general rule, courts will only uphold
a waiver if the type of injury suffered by a member is contemplated
by use of the equipment and services,” explains
Gary Bradley, Esq., a partner at Bradley & Gmelich in
Glendale, California. “While pulling a muscle while using
the treadmill would qualify, slipping on algae around a
club’s pool—wouldn’t.” —|
– Kristen Walsh, kwalsh@ihrsa.org
A key component of any club’s risk-management program is a carefully crafted and unambiguous
liability waiver. “The primary function of the waiver is to protect the provider from liability for negligence,
and, when used in the correct circumstances, waivers can provide liability protection in at least 45 states,”
according to Doyice J. Cotton and Mary B. Cotton, whose Waivers & Releases of Liability, 7th edition, is based
upon more than 1,000 recreation-related cases. (This book is available at www.ihrsastore.com.) —|