Lesson #3

DEFENSES TO NEGLIGENCEJoAnn Eickhoff-Shemek, Ph.D., FACSM, FAWHP

President and Founder

Fitness Law Academy, LLC

www.fitnesslawacademy.com

Disclaimer: The “educational” information in this PowerPoint presentation should not be construed to

be the provision of legal advice. For individual legal advice, it is necessary to obtain legal counsel in

the jurisdiction where such appropriate advice can be provided.

Topics

• Types of defenses

• Defenses that do not work

• Understanding primary assumption of risk

• Understanding the waiver defense

• Legal cases – Primary Assumption of Risk

• Legal cases – Waiver

• Waiver textbook

Types of Defenses to Refute (Defend)

Negligence Claims

Best Defense: Do Not Breach Your Duties

- Primary Assumption of Risk

- Waiver (Prospective Release)

- Comparative/Contributory Negligence

- Immunity

- Statutes of Limitations

- Product Defects/Product Liability

NOTE: This presentation will focus on the two most common defenses:

(a) Primary Assumption of Risk (b) Waiver

Defenses That Do Not Work!

-- Not enough staff

-- Takes too much time

-- Costs too much

-- That’s how other facilities do it

-- Ignorance of the law/legal duties

Understanding the Primary

Assumption of Risk Defense

Definition: A legal doctrine (or legal theory)

that states: “a plaintiff may not recover for

an injury in which he assents, i.e., that a

person may not recover for an injury

received when he voluntarily exposes himself

to a known and appreciated danger” Black’s Law

Dictionary (1)

Note: Applicable to injuries due to “inherent”

risks – not negligence

Primary Assumption of Risk:Factors Courts Consider For It To Be An Effective Defense

Nature of the Activity:

Sport/Recreation vs. Fitness

Experience Level of the Plaintiff:

Novice vs. Experienced

Cause of the Injury:

Inherent Risks vs. Negligence

Primary Assumption of RiskTo strengthen this defense:

Describes the inherent risks in a written document* signed by participants

Assumption of Risk: I understand that the inherent risks of muscle strength/endurance,

cardiovascular, and flexibility activities vary with the activity, the physiological system(s)

involved, and with the exercise equipment used. Common minor risks include minor muscle

strains, muscle sprains, muscular fatigue, contusions, and post-exercise soreness. More

serious, but less frequent, risks include joint injuries, torn muscles, heat-related illnesses, and

back injuries. There is also the remote risk of a catastrophic incident (e.g., stroke, heart

attack, paralysis, or death).

I have read the previous paragraphs and I know the nature of the activities of ES, I

understand the demands of those activities relative to my physical condition and skill level,

and I appreciate the types of injuries that may occur as a result of activities made possible

through ES. I assert that my participation is voluntary and that I knowingly assume all

such risks. Taken From: USF Exercise Science (ES) Program -- Assumption of Risk and Waiver of Liability

*Language that describes the “inherent” risks (minor, major, & death) can be included in various types of documents such as a waiver, an informed consent, agreement to participate, and express assumption of risks.

Understanding the Waiver Defense

Definition: A waiver (prospective release) is a

contract signed by an individual prior to

participation that absolves the defendants (e.g.,

fitness personnel and facilities) from their own

“ordinary” negligence by including exculpatory

language.

Waivers protect against “ordinary”

negligence – not gross negligence

Important Factors to Consider to

Help Make the Waiver Enforceable

It must meet all 4 elements of a contract: (1) Agreement, (2) Consideration, (3) Contractual Capacity, and (4) Legality.

The “exculpatory” language must be written based on state law, i.e., how explicit this language needs to be stated depends on state law.

It should be administered properly, e.g., the purpose explained in a clear/honest manner and ample time given for the participant to read it.

Waivers:

Unenforceable in Certain States*Examples Include:

Louisiana

La. Civ. Code art. 2004 – waivers violate public policy**

New York

G.O.L. Sec. 5-326 – waivers violate public policy

Montana

MCA 28-2-702 prohibits use of waivers

Virginia

Supreme Court held that pre-injury releases are against public policy

*Cotten and Cotten, (2)

**Public policy means that the act is not in the best interest of the public as a whole.

[Black’s Law Dictionary (1)]

Waiver of LiabilityExculpatory Language

Waiver of Liability: In consideration of permission to use the property, facilities, and

services of ES, today and on all future dates for the duration of ES, I (on behalf of myself,

my heirs, personal representatives, or assigns) do hereby release, waive, and discharge ES,

USF Board of Trustees, a public body corporate (USF) and its faculty members, students,

employees, and agents from liability from any and all claims including and rising from

negligence of any member of ES, USF, and its faculty members, students, employees, or

agents.

This agreement applies to 1) personal injury (including death) from incidents or

illnesses arising from participation in ES activities (including, but not limited to, health and

fitness assessments, supervised and unsupervised personal training activities, classes,

observation, individual use of facilities or equipment, shower/locker room area, and all

premises including the associated sidewalks and parking lots), and 2) any and all claims

resulting from the damage to, loss of, or theft of property. Taken From: USF Exercise Science Program -- Assumption of Risk and Waiver of Liability

NOTE: Before any waiver is used, it MUST be reviewed by a competent

lawyer to help ensure it will be enforceable in your jurisdiction.

Legal Cases

Please refer to “U.S. Negligence Lawsuits” – handout

available at www.fitnesslawacademy under Free Resources

Regarding the Primary Assumption of Risk Defense, see the

following cases:

Rostai

Corrigan

Santana

Regarding the Waiver Defense, see the following cases:

Santana

Roer

Stelluti

Legal Cases: Primary Assumption of Risk

Rostai (p. 2)

Note how the court ruled that the plaintiff “assumed the risks” even though

they acknowledged the trainer’s conduct was negligent.

The court stated that if the trainer’s conduct had been intentional or

reckless – then the primary assumption of risk would not have protected

the defendants from liability.

Many legal scholars have disagreed with this court’s ruling because the

primary assumption of risk defense usually protects defendants from

injuries due to inherent risks only, not negligence.

Corrigan (p. 5)

In this case, the court ruled that the primary assumption of risk was not an

effective defense to protect the defendants because:

the trainer’s conduct was negligent (improper instruction and supervision).

the plaintiff was a novice and therefore did not fully understand and appreciate

the inherent risks of using a treadmill.

Legal Cases: Primary Assumption of Risk -- Cont.

Santana (p. 6)

The court ruled that the primary assumption of risk defense was not

effective in protecting the defendants because the step aerobics instructor

increased the risks over and beyond those inherent in the activity – as

described by the expert witness.

Another factor considered by this court (that was not included on the

handout) was the distinction between sports and fitness with regard to the

primary assumption of risk; the court stated that sports by their nature

inherently create extreme risks of injuries due to:

• Physical contact between participants

• Competition aimed at scoring points, racing against time, or accomplishing feats of speed and strength

Whereas exercise programs such as the step aerobics class in this case are designed to enhance health and fitness and therefore should not be designed to create extreme risks of injury.

Legal Cases: Waivers

Santana (p. 6)

The plaintiff claimed she was not informed of the waiver – it was hidden on

the back side of the membership agreement and she was not offered time to

read it.

The appellate court questioned the validity of the waiver, e.g., the plaintiff

was unaware of it -- no advisement near the signature line (on first page),

and it’s placement on the back side of the membership agreement, diluted

color (light ink), and small font (8 point type) made it inconspicuous.

Roer (p. 8)

The court stated:

“…the occurrence which caused the Plaintiff’s injuries was naturally

associated with the defendants breach of their alleged duty (i.e., to secure the

exercise ball…) and “…that it was foreseeable that placing an exercise ball in

proximity to a moving treadmill…posed a danger to the person using it…”

The exculpatory clause in the waiver did not include the proper language to

protect the defendants from their own negligence – and even if it had, it would

not have unenforceable under:

NY General Obligations Law § 5-326. Agreements exempting pools, gymnasiums,

places of public amusement or recreation and similar establishments from liability

for negligence void and unenforceable

Legal Cases: Waivers – Cont.

Stelluti (p. 6) – this explanation is not included in the handout

Stelluti claimed the waiver was against public policy, but after analyzing this claim using the ruling in Tunkl * -- a landmark case that courts rely on to determine if a waiver is against public policy -- the Court stated that the waiver was an adhesion contract (yes – plaintiff had to sign it or could not use the club) but it did not create unequal bargaining power (plaintiff could have gone somewhere else). Therefore the Court ruled the waiver enforceable. Unequal bargaining power is one of the factors (from Tunkl) that if present will deem the waiver against public policy and thus unenforceable.

Two dissenting justices stated that the majority ruling is not in the public interest because:

Waivers allow clubs to operate negligently with no consequences

These contracts of adhesion will be become an industry-wide practice (patrons will have no bargaining powers)

Without an incentive to provide safe programs/facilities – the cost to the public will be an increase in the number of avoidable accidents in health clubs

Ruling of this Court is not in step with the enlightened approaches taken by courts of other jurisdictions that have barred this very type of exculpatory clauses

*Tunkl v. Regents of the University of California, 60 Cal.2d. 92 (Cal., 1963).

Textbook: Waivers and Releases of Liability(www.SportWaiver.com)

Analyzes waiver law by state (summarizes key cases for each state) and each state is classified based on the exculpatory language needed as follows:

LenientModerateStrictStrict or not enforcedNot enforced

Analyzes waiver law and minor participants

Informed Consents and Agreements to Participate

Writing and administration factors for waiversStand-alone waiversIncluded within another documentGroup waivers, etc.

THANK YOU!

To obtain a more in-depth understanding and application

of legal and risk management concepts, register for “Minimizing Legal Liability and Maximizing Fitness Safety” -- a self-study CEC/CEU course at:

www.fitnesslawacademy.com

References:

1. Black, HC, et al. (1991). Black’s Law Dictionary. (6th ed.). St. Paul, Minnesota: West Publishing Co.

2. Cotten, DJ & Cotten, MB. Waivers & Releases of Liability. (9th ed.). Statesboro, GA: Sport

Risk Consulting. Available at: http://www.sportwaiver.com/book-waivers-releases-of-liability

Note: References for the legal cases are listed in the handout: U.S.

Negligence Lawsuits.