Legal & Risk Management
By Sean Riley, MS, JD

The Importance of Protective Legal Documentation
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. (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 (EickhoffShemek 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

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

CLASSIFICATIONS OF RISKS
Confused by the legalese of risk management? Here’s a short primer on some terms every trainer should be familiar with: Inherent Risks: Inherent injuries are those that are a natural part of an activity (Eickhoff-Shemek 2001). These injuries are not preventable and are not any person’s fault. Examples include muscle strain and tendonitis. Negligence: Negligence is the failure to act as a reasonable, prudent person would have acted under similar circumstances. Typical examples include giving inadequate first aid or improper advice. Extreme Forms of Conduct: Extreme conduct encompasses any intentional, wanton, willful, reckless or grossly negligent conduct. The most likely example? A club that has prior knowledge of an equipment malfunction fails to take any action to repair it or warn members about it. Lawsuits for injuries due to extreme forms of conduct cannot be waived by any legal document.

Fe b r u a r y 2 0 0 6 ID E A Tr a i n e r S u c c e ss

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.” 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.

THE POWER OF THE WAIVER: A CASE STUDY
Here’s a real-world legal case in which a properly worded waiver saved the day for one fitness facility and personal trainer. The litigant in the case was a fitness client who had a history of lower-back problems and claimed that she sustained a shoulder injury while under the supervision of a trainer. Here are the facts that emerged in this case: After the initial fitness assessment, the trainer had recommended that this client use certain weight machines. While attempting to lift the specific weight recommended by the trainer, she felt a ripping sensation in her shoulder. She reported this injury to the facility but was not told to seek immediate medical treatment. Moreover, she continued to work out. Her shoulder injury, which she attributed to the trainer’s recommendations, required surgery. Consequently, she sued. The lawsuit alleged that the trainer was negligent, especially in light of her physical condition, which was known–or reasonably should have been known–to the trainer (Seigneur v. National Fitness Institute Inc. 2000). Upon joining the club, the client had signed a membership agreement that included a waiver. The club/trainer moved for summary judgment, based on the signed waiver, and the motion was granted. This actual case demonstrates how a waiver, if properly drafted, can release a trainer from liability, even if there would have been a legitimate claim for negligence absent the waiver. In this case, the negligence on the part of the trainer stemmed from inadequate screening, poor program design or both. Additionally, the member was partially at fault for not mentioning the movement’s difficulty, not having the sense to stop working out immediately after feeling intense pain and not seeking immediate medical attention. But all this was moot, since the waiver saved the day.

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.
Sean Riley, MS, JD, is a licensed attorney who works as an exercise physiologist in Los Angeles. He earned his master’s degree in exercise science from California State University, Long Beach, and his legal degree from Loyola Law School. He can be reached at [email protected]