Speaker Says Fitness Clubs Are Not Doing Enough to Mitigate Risk

Dec 18, 2009

Health club operators are not doing enough to mitigate the legal risk they face.
That much was certain when attorney Sara Kooperman quizzed her audience about the adequacy of the legal waivers and other forms they require their members to sign before working out in their gyms.
The venue for Kooperman’s “Law and Exercise Safety” presentation was Athletic Business magazine’s annual conference, held earlier this month in Orlando. Kooperman, who is the CEO of the education company SCW Fitness Education, touched on many topics.
“Document, document, document,” Kooperman told the audience as she delved into the importance of incident reports, health history forms and waivers.
Beginning with the former, she highlighted their importance as tool to “jog the memory” if a member sues the health club after an injury. She also stressed the importance of getting the names and number of potential witnesses.
As for health history forms, she noted the importance of the attestation clause, offering the following example: “I attest that all information is correct and that I am in sound physical condition.” Kooperman also warned the audience that with the recent popularity of boot camps for members, there can be problems. “Insurance policies will rarely cover any injuries that occur off-property like at a park,” she said.
Turning the waivers, Kooperman advised the audience that such documents, which “protect against liability for injuries resulting from ordinary negligence of the provider or its employees,” have been upheld in all states except Montana, Louisiana, Virginia and Rhode Island. She added however that New York has an evolving standard. For example, while waivers have been upheld at instructional facilities, they are “not available for recreational facilities.”
She recommended to the attendees that they look toward Moore v. Waller (http://caselaw.lp.findlaw.com/data/dcapp/cases/05-cv-695.pdf) for guidance on waiver language.
If the audience wasn’t scared enough during her talk, she added a cautionary note about parents signing a waiver on behalf of the children so they can participate in a camp or other activity. According to Kooperman, there is no legal basis that the parents can legally do this. Thus, facilities are at legal risk if a child is injured, and they are not even aware of it.


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