The Importace of Protective Legal Documentation

by Sean Riley, JD, MS on Feb 01, 2006

Don't leave home without it!

Personal training is a business. All businesses, especially those—like fitness—that carry inherent risks of injury, must protect themselves from lawsuits. At some point, most people who work out will experience some sort of exercise-related injury. Without legal protection, just imagine how many personal fitness trainers (PFTs) would be blamed and potentially sued for every minor ache and pain.

That’s why it is imperative that all PFTs understand, use and distinguish among the various types of legal documentation, especially informed-consent documents and waivers. Each type “protects” against a different kind of injury and has its own legal effect.

Informed Consent

Documents of informed consent protect against inherent risks (Eickhoff-Shemek 2001). By signing a consent form, the client is saying, “I know and understand there are certain risks inherent in my voluntary decision to participate in this activity.” In this way, the client assumes a risk and acknowledges the potential for injury. Such documents provide a PFT with an assumption-of-the-risk defense in a court of law because the form itself (i.e., the piece of paper that is signed) is legally admissible evidence of that assumption (Eickhoff-Shemek 2001).

To uphold the value of that evidence, it is essential that all inherent risks are specifically described in a document of informed consent (Eickhoff-Shemek 2001). It must contain verbiage that identifies both the type of accidents that could occur, as well as the potential consequences. (The possibility of death should always be included as one such risk.) In addition, the document should note the purpose and benefits of the activity and cite your commitment to confidentiality (Eickhoff-Shemek 2001).

The client must understand the content of the informed-consent document before signing it. Any misunderstandings should be verbally clarified in advance; be sure, however, to note somewhere in writing that this discussion took place. Be aware that this document is merely evidence of an assumption of the risk. It does not bar the client from suing.

Any document of informed consent is a contract; in other words, it is a legally binding and enforceable agreement between two parties, provided that all the necessary information is included (Eickhoff-Shemek 2001). Because it is a formal contract, only adults can enter into this agreement. Consequently, children (or minors) are not protected by documents of informed consent. Nevertheless, children may sign an agreement to participate. This form is identical in content to informed consent; however, it is not an enforceable contract and cannot be litigated as such. While an agreement to participate is little more than a permission slip, it is still admissible in a court of law as evidence of having assumed a risk.

It is vital to note that a document of informed consent may not include an exculpatory clause, which protects against liability (see below). If it does contain this clause, the document is then considered a waiver (Eickhoff-Shemek 2001).

Waivers

A waiver, or prospective release, protects against claims of negligence (Eickhoff-Shemek 2001). It does not protect against reckless, intentional, wanton or grossly negligent conduct. Furthermore, a waiver does not protect against inherent risks. That’s why all waivers should be accompanied by a separate document of informed consent that describes all inherent risks.

Every waiver must contain an exculpatory clause (Eickhoff-Shemek 2001). This clause expressly states that the client releases the club or trainer from any liability linked to any negligence by the trainer, the club or its employees. This clause is evidence that your clients have given up (i.e., “waived”) their right to sue you.

An exculpatory clause must be written very carefully and contain appropriate wording. First and foremost, the term release from liability must be included (Eickhoff-Shemek 2001). Moreover, courts will require that the term negligence also be included or some courts will not enforce the waiver (Eickhoff-Shemek 2001). Furthermore, the specific language should expressly include the term any negligent act or omission, since a negligence claim can arise from a certain action (referred to as a commission) or from a failure to act (known as an omission) (Cotten 1996). Additionally, the proper legal names of the club, corporation, trainers and employees should be appropriately identified in the clause. For more information on what to include in the verbiage, see “How to Format a Waiver” on page 12.

Keep in mind that not every provision in the waiver will be required in every state. Also, some states do not recognize the validity of waivers in fitness settings (e.g., Louisiana, Montana, New Mexico and Virginia).

Like informed-consent documents, waivers are contracts and can be entered into only by adults (Eickhoff-Shemek 2001). The legal effect of a waiver is more than mere evidence of some defense. It acts as a complete bar to a lawsuit. If a suit is filed and there is a validly signed waiver, the defendant (i.e., the trainer) would seek what is known as a summary judgment (Eickhoff-Shemek 2001). Summary judgment is a motion to dismiss a case because there is no issue to be tried. Since the client has waived the right to sue for negligence, there is no longer a justifiable cause of action for negligence. Hence, there is no issue (i.e., negligence) to be litigated.

How to Avoid Legal Risks

What can you do to protect yourself from legal disaster? By following these simple guidelines, you can manage your legal risk (Eickhoff-Shemek 2001).

  • Have a competent legal professional review your documents to ensure they are properly worded and, thus, more likely to be enforced.

  • Be sure to provide your clients with ample time to fully read the documents. Verbally review the papers with clients before they sign them.

  • Store all documents securely for as long as required by the applicable statute of limitations in your state.

  • To afford yourself the ultimate protection against legal liability, make sure not only that your clients sign the appropriate documentation but also that you carry sufficient liability insurance.

  • At a minimum, use a commercially available standardized waiver form. Note that these forms are often inadequate. To ensure that your waiver is enforceable, use the verbiage recommended in “How to Format a Waiver” on this page.

References

Cotten, D. 1996. Before the fall. Athletic Business. www.

urmia.org/docs/cotten.htm; retrieved Sept. 3, 2005.

Eickhoff-Shemek, J. 2001. Distinguishing protective

legal documents. ACSM’s Health & Fitness Journal,

5 (3), 27-29.

Seigneur v. National Fitness Institute Inc. 2000. 132 M.D. App. 271.

IDEA Trainer Success, Volume 3, Issue 1

Find the Perfect Job

More jobs, more applicants and more visits than any other fitness industry job board.

© 2006 by IDEA Health & Fitness Inc. All rights reserved. Reproduction without permission is strictly prohibited.

About the Author

Sean Riley, JD, MS

Sean Riley, JD, MS IDEA Author/Presenter

Sean Riley earned his JD from Loyola Law School and works as a sole practitioner in Los Angeles. He earned his master’s degree in exercise science from California State University, Long Beach, where...