JoAnn M. Eickhoff-Shemek, PhD, FACSM
President, Fitness Law Academy, LLC
This blog will describe the types of legal liability risks that health club owners/managers can face due to an employee’s negligent conduct and effective risk management strategies that can minimize those risks.
Large companies and healthcare organizations have risk management (RM) departments that employ experts who develop and implement RM strategies to protect the company or organization from all types of risks including legal liability risks. Because most health clubs do not have a RM department, the owner/manager has the overall responsibility to minimize legal liability risks and, thus, is the RM manager for the club.
All health club owners/managers have a legal duty to provide “reasonably safe” programs and services for their participants (e.g., members, clients). Reasonably safe means taking precautions (developing and implementing RM strategies) to prevent “foreseeable” injury risks. Numerous negligence lawsuits against fitness facilities have involved all types of injuries suffered by participants. These have included head injuries, fractured bones, back and neck injuries, strokes, heart attacks, exertional rhabdomyolysis, and even death (1). For example, when personal fitness trainers instruct their clients to perform an exercise that is too advanced or too intense, given their health/fitness status, it is clearly foreseeable that an injury may occur.
Minimizing Legal Liability Exposures
Legal liability exposures are defined as situations that create a risk of injury. Many legal liability exposures exist in the following seven areas:
- Employment issues, e.g., employing credentialed and competent personnel
- Pre-activity health screening and fitness testing
- Exercise prescription and scope of practice
- Instruction and supervision
- Exercise equipment safety
- Facility issues
- Emergency actions plans
RM strategies can be developed and implemented to minimize legal liability exposures in each of these seven areas. Mitigating injury risks is the number one responsibility of all health club owners/managers. Too often owners/managers focus on having participants read and sign a waiver (release of liability) as their major RM strategy. However, waivers and other protective legal documents as well as liability insurance, do nothing to enhance safety. They are only potentially effective after an injury and lawsuit have occurred.
The Owner/Manager’s Vested Interest to Develop Employment RM Strategies
To protect themselves and their business, health club owners/managers have a vested interest to employ only credentialed and competent employees, e.g., personal fitness trainers (PFTs) and group exercise leaders (GELs). If they fail to do so, they can face both vicarious liability and direct liability. Employers can be vicariously liable when an employee’s negligent conduct causes harm. The plaintiff (injured party) will likely name the employer as a defendant in the lawsuit. This is based on a legal doctrine called repsondeat superior – a Latin term meaning “let the master answer.” Employers can be directly liable when they fail to properly hire, train, and supervise employees.
Case Example: Baldi-Perry v. Kaifas and 360 Fitness Center, Inc. (2, 3).
In this case, a PFT with a college degree in the field and a nationally-recognized certification, informed his client, with known back/neck injuries, that he wanted her to perform a new exercise routine – circuit training with no/little rest periods. She was concerned about performing the new routine and reminded him of her injuries. He told her that she needed to trust him because he was the expert. Relying on his purported expertise, she performed the new routine but suffered many severe and permanent injuries afterwards. She filed a lawsuit listing numerous negligence claims against both the trainer and the fitness center. The jury returned a verdict of $1.4 million in favor of the plaintiff. This case demonstrates how an employer can be vicariously liable when an employee’s negligent conduct (negligent instruction in this case) causes harm and directly liable, e.g., many of negligence claims against the fitness center involved improper hiring and training such as:
- Failing to hire properly trained and/or certified personal trainers
- Negligently hiring trainers who were not qualified to design exercise programs for individuals with injuries
- Failing to offer appropriate and necessary training to physical trainers
Hiring, Training, and Supervision Strategies
There are many RM strategies that can minimize legal liability exposures regarding all types of employment issues. The following focuses on hiring, training, and supervision strategies that health club owners/managers should consider.
Risk Management Hiring Strategies
When hiring fitness professionals, health club owners/managers should follow standards and guidelines published by professional organizations regarding employee credentials. For example, the American College of Sports Medicine (ACSM) recommends the following for PFTs:
- “A high school diploma is required, and a 4-year degree in fitness, exercise science, or a related field from an accredited college or university is recommended, with 2 years of college education in the field as a recommended minimum.
- A personal trainer certification from a nationally recognized and accredited certification program is recommended.
- A minimum of 6 months’ experience working as a personal trainer or fitness instructor is preferred” (4, p. 55).
Risk Management Training Strategies
Although credentials are important, health club owners/managers should not assume that a degree in the field and an accredited certification means the fitness professional is competent. The PFT in Baldi-Perry possessed both, but was incompetent (i.e., he did not possess the practical skills to properly design and deliver an exercise program). It is important to realize that accredited PFT and GEL certifications only require passing a written examination – there is no examination that formally assesses the practical skills of a PFT or GEL.
Courts may consider the credentials of a fitness professional, but more importantly they will judge the conduct (or competence) of the professional – did the professional’s conduct breach a legal duty and, if so, did the breach of duty cause the harm. The Figure depicts this connection between the lack of practical skills and legal liability (negligence). Both improper actions (e.g., improper instruction) and inactions (e.g., failure to instruct) of a fitness professional can reflect negligent conduct.
Figure: The Connection Between the Lack of Practical Skills and Legal Liability*
*Reprinted with permission from Law for Fitness Managers and Exercise Professionals (1)
For all new hires, health club owners/managers should provide both classroom training (e.g., lectures/discussions regarding principles of safe exercise) and practical training (e.g., teaching skills, communication skills). Health club owners/managers need to make a concerted effort to help ensure their PFTs and GELs are competent employees before they begin instructing participants.
On-Going Safety Training
To continually focus on the importance of safety and help create a safety culture at the club, owners/managers can provide regular “safety” in-service staff trainings or include fitness safety as an agenda item to discuss at staff meetings. Numerous “quality” resources are available such as articles from ACSM’s Health & Fitness Journal that can be reviewed and discussed at in-service staff trainings and meetings. One year after the publication date, these articles can be accessed for “free” on the ACSM website: Current Issue : ACSM’s Health & Fitness Journal (lww.com). Here are just a few of the articles that focused on fitness safety published in 2022:
- Virtual Fitness Programs: Safety and Legal Liability Issues to Consider: Part 1 (Jan./Feb. issue)
- Efficacy of Exercise for Fall Prevention in Older Adults (May/June issue)
- Personalizing Activity Recommendations for Individuals with Type 2 Diabetes (Nov./Dec. issue)
Risk Management Supervision Strategies
Health club owners/managers should provide proper supervision of PTFs and GELs. This involves direct observation of their teaching and conducting formal performance appraisals. Performance appraisals should be conducted at least 2-3 times during a new employee’s probationary period and then on a regular basis thereafter. The major objective is to provide constructive feedback to PFTs and GELs on how they can improve their performance as well as recognize their contributions to the club. A GEL performance appraisal tool is available at: Forms and Documents (fitnesslawacademy.com).
This blog described why, from a legal liability perspective, it is essential that health club owners/managers employ credentialed and competent PFTs and GELs to minimize legal liability exposures. Many other legal liability exposures related to employment issues exist as well as in the other areas listed (#2 – #7 above). These legal liability exposures as well as RM strategies to minimize these exposures are covered elsewhere (1).
To learn more about the law, legal liability, and risk management, owners/managers are encouraged to take the new ACSM “Self-Study” CEC course – Law for Fitness Managers: Protect Yourself and Your Business. It is open to members and non-members. For more information and to register, go to: Item Detail – Law for Fitness Managers: Protect Yourself and Your Business (acsm.org)
- Eickhoff-Shemek JM, Zabawa BJ, Fenaroli PR. Law for Fitness Managers and Exercise Professionals. Parrish, FL: Fitness Law Academy, LLC, 2020.
- Baldi-Perry v. Glenn Kaifus and 360 Fitness Center, Inc. Complaint. Index No. 2010-1927, Supreme Court, Erie County, New York. February 19, 2010.
- Herbert DL. New York Case Against Personal Trainer Results in $1.4 Million Verdict. The Exercise, Sports Medicine, Standards & Malpractice Reporter, 4(4), 49, 51-55, 2015.
- ACSM’s Health/Fitness Facility Standards and Guidelines. Sanders ME. (ed). 5th Ed. Champaign, IL: Human Kinetics, 2019.
JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, FAWHP, professor emeritus, Exercise Science at the University of South Florida and president of the Fitness Law Academy, LLC, is an internationally known author and speaker. For more than 35 years, her teaching and research have focused on fitness safety, legal liability, and risk management issues. Dr. Eickhoff-Shemek is the lead author of a comprehensive legal/risk management text, Law for Fitness Managers and Exercise Professionals, and the coauthor of another textbook, Rule the Rules of Workplace Wellness Programs, published in 2020 and 2021, respectively.
Thank you Dr. Eickhoff-Shemek for providing this detailed guide to minimizing a gym owner’s legal liability as it relates to employees. We hope you found this blog as interesting as we have. Keeping our gym owners up-to-date on issues important to them is the reason we publish this weekly blog. For more information on our gym management software or to speak with a sales person, call us at 855-FOR-GYMS or visit our YouTube podcast “Gym Owner’s Podcast.”