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LEARNING OBJECTIVES
Through a description and analysis of two negligence lawsuits
involving high-intensity exercise programs, readers of this article
will obtain an understanding and appreciation of (a) legal and risk
management concepts related to negligence, (b) legal liability risks that
exist in high-intensity exercise programs, and (c) risk management
strategies that can be developed and implemented to minimize legal
liability risks associated with high-intensity exercise programs.
Key words:
Negligence, Legal Duties, Injury Risks, Professional Standard of
Care, Risk Management
INTRODUCTION
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Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
%HRmax
%VO2max
G57 to G64
G37 to G45
Moderate
64 to G76
45 to G64
Vigorous
76 to G96
64 to G91
Q96
Q91
Harm/Injury
to Plaintiff
Rostai v.
Neste
Enterprises
(14)
Heart attack
Proffitt v.
Global
Fitness
Holdings,
LLC,
et al. (13)
Rhabdo
resulting in
permanent
injuries,
including 30%
loss of
muscle tissue
in both
quadriceps
muscles
Case
Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
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High-Intensity Exercise
standard of care, and (d) defenses to negligence actions. Each of
these topics is discussed with application to the high-intensity
exercise programs in Rostai and Proffitt.
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Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
program (an advanced program), this defense will likely not apply
because the novice does not understand and appreciate the inherent
risks associated with beginning an exercise program V let alone
an advanced program. Another factor is the nature of the activity,
for example, courts have ruled that the primary assumption of risk
will likely apply to sports programs but perhaps not exercise
programs. In Santana v. Womens Workout and Weight Loss
Centers, Inc. (15), the court stated that sports by their nature
inherently create extreme risks of injuries because of elements like
physical contact between participantsIor competition aimed at
scoring points, racing against time, or accomplishing feats of speed,
strength, agility, and grace (pp. 25, 26). The court also stated that
because exercise programs are designed to enhance health and
fitness, they should not be designed to create extreme risks of
injury. For example, the primary assumption of risk might be
effective for competitions such as marathons but may not be
effective for general high-intensity exercise programs such as HIIT
and P90X. In Santana, the fitness instructors conduct increased the
risks of injury over and above those inherent in the activity and
therefore the assumption of risk defense was not effective in
protecting the defendants. Therefore, it is likely this defense will not
be effective with high-intensity exercise programs because of the
intentional design of the program as well as the conduct of the
fitness trainers who have their participants work out at levels that
can create increased risks of injury.
The second common defense against negligence is a waiver. A
waiver (prospective release) is a contract signed by an individual
before participation that absolves (protects) the defendants (e.g.,
fitness trainer and facility) from their own negligence. Waivers can
be an effective defense for ordinary negligence; however, they
are against public policy in certain states (8). For example, there is
a long-held ruling of the Virginia Supreme Court that waivers are
unenforceable for personal injury because they are against public
policy. The legality of waivers is based on individual state laws
and, therefore, fitness trainers and managers need to consult with a
competent lawyer in their jurisdiction before considering the use of
waivers in their programs. It also is important to realize that
waivers do not protect against gross negligence claims (8) like
those made by the plaintiff in Proffitt. When a plaintiff claims that
the defendants were grossly negligent, he or she will seek punitive
damages in addition to compensatory damages.
It is essential for fitness trainers and facilities to have adequate
liability insurance. If they are found liable for damages in a
negligence case, the insurance provider is obligated to pay out the
damages up to the limits of the policy (9). Fitness managers need
to be sure that their general liability insurance policies cover
high-intensity exercise programs. If not, additional coverage
should be purchased. Fitness managers also should require their
fitness trainers to purchase professional liability insurance or
provide it for them. If liability insurance to cover high-intensity
exercise programs cannot be obtained or is cost-prohibitive, the
facility should not offer these programs. It also is important to
ACSMs HEALTH & FITNESS JOURNALA
Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
33
High-Intensity Exercise
realize that liability insurance covers compensatory damages but
does not cover punitive damages for gross negligence (9).
Purchasing liability insurance and having participants sign a
waiver are effective risk management strategies but are only
protective after an injury has occurred. They do nothing to enhance
safety or help prevent injuries. Developing and implementing
strategies that help minimize injuries should be the main risk
management focus of fitness trainers and managers. To begin this
process, it is necessary to first obtain an understanding of the many
legal liability exposures that exist in fitness programs.
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the fitness field. The following will focus on the legal liability
exposures specific to the Rostai and Proffitt cases and
risk management strategies that could have minimized these
liability exposures.
Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
RISK MANAGEMENT
It is likely that the injuries in these two cases could have been
prevented by developing and implementing effective risk management strategies that is a major responsibility of all fitness
managers. To be successful as a risk management manager, fitness
managers first need to become aware of the many legal liability
exposures that exist in traditional fitness programs and, if offering
high-intensity exercise programs, the additional liability exposures
that can be created with these programs. They also need to be
aware of important risk management strategies to minimize these
legal liability exposures.
Risk management strategies that need to be addressed
specifically in high-intensity programs include (a) the need for
trainers to be well qualified (e.g., possess advanced knowledge,
skills, and experience in the exercise sciences) because these
types of programs would be considered advanced, not beginner
level; (b) the need to conduct preactivity screening and obtain
medical clearance specifically for high-intensity exercise for
individuals who are at risk and if they are not cleared, they
should not participate in these programs; and (c) the need for
trainers to be competent, for example, know how to apply basic
exercise principles like progression that are based on wellestablished standards and respond properly if signs and symptoms
of overexertion occur. Therefore, it is essential for managers to
obtain formal education and training in the exercise sciences and
legal/risk management areas; however, many lack knowledge and
skills in these areas (2). This lack of knowledge and skills can lead
to poor decision making when it comes to the safety of participants.
Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
35
High-Intensity Exercise
qualified and competent fitness trainers. In Rostai (14) and Proffitt
(13), the facility (employer) was named as a defendant along with
the fitness trainer because of this legal doctrine. Therefore, fitness
managers need to be able to distinguish the well-recognized
certifications from the so-called fly-by-night certifications when it
comes to hiring trainers. Although many in the general public
cannot make this distinction because they believe that a certified
fitness trainer is a qualified and competent trainer, it does not
excuse managers from not being able to make this distinction.
Many certifications do not require any formal education such as
classroom instruction in the exercise sciences along with an
internship that provides meaningful real-world practical experiences before sitting for the examination. In addition, most
examinations do not require any practical component to evaluate
the competence of the candidate. Formal education is the best
approach to prepare qualified and competent fitness trainers.
Therefore, managers who are truly concerned about the safety of
their participants and want to minimize one of the most significant
legal liability exposures they face V unqualified and incompetent
fitness trainers V they would require and/or provide formal
education for their fitness trainers. It may be that fitness trainers
who have a degree in exercise science will need formal,
supervised, and evaluated practical experiences to become
competent if their academic program did not provide this
important component of formal education adequately.
In addition to formal education in the exercise sciences, all fitness
trainers and managers should be well educated in the area of legal
liability and risk management. They should be aware of the many legal
liability exposures that exist in the seven areas (Figure 1) and the risk
management strategies to minimize them. To develop knowledge
and skills in this area, formal education is again needed. Academic
programs V both undergraduate and graduate V should have a
required course devoted to these topics but, unfortunately, it often is
not addressed adequately in most programs (9). The educational
content associated with certification programs also should include
legal and risk management knowledge and skills that candidates
need to obtain before taking the certification examinations as the
ACSM certifications do, for example, specific learning domains
such as Domain IV (Legal/Professional) and Domain V (Management) that includes risk management recently were established for
the ACSM Certified Health Fitness SpecialistSM (12).
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Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
Copyright 2014 American College of Sports Medicine. Unauthorized reproduction of this article is prohibited.
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