Gross Negligence of Equipment Maintenance and Repair — Who’s Responsible?
The certified mail package you just received contains two spiral bound books, each about 50 pages. The one on top seems to be a commercial treadmill owner’s manual and the other has the three last names of a law firm as the header. This must have something to do with the treadmill slip and fall four weeks ago, which has caused some concern and the need to answer some questions.
You reflect on the morning’s emails and remember the one you didn’t open from someone you don’t recognize from the treadmill manufacturer. Curiosity wins, and you open it. It’s a simple request reading, “Please prove proper repair and maintenance on the treadmill with serial number XXXX.” OK, they are caught up in this too.
Item 1 in the binder describes the member, the intended activity, the accident and the injury. Item 2 describes details of the treadmill — down to the usage data and settings. The words “GROSS NEGLIGENCE” seem to be the theme of this report and Item 4 is frequently referred to, with Item 4 titled “Treadmill care and maintenance.”
It states there have been no records providing the following:
- Show preventive maintenance was done on treadmills by either the manufacturer or club technicians.
- Describe and record any remedial or repair actions taken to correct malfunctions.
You are certain this treadmill has been repaired and has been maintained by several different companies over the past few years, including the manufacturer’s maintenance plan!
Club operators have many options for repair and maintenance. There seems to be overarching ideas that hiring third parties to perform maintenance shifts their liability and equipment “under warranty” requires no maintenance.
The reality is that in gross negligence claims, if there is NO documentation, there is NO repair or maintenance. Operators should take ownership of the who, what, when and where of repair and maintenance, not just the accounting dollars. When hiring third-party maintenance, there is no interest for these parties to keep your records for you. Clubs should set up a depository for recording what was done to all of their equipment. The best case would be to perform maintenance in-house to ensure it is done properly to protect against negligence claims.
There are many opinions as to when to perform machine maintenance. The only REAL schedule that must be followed is the schedule offered in the manufacturer’s manual. Most claims will refer to the manual as the guide for proper maintenance and when the plaintiff goes after the manufacturer, they (the manufacturer) will ask you to prove proper repair and maintenance based on the manual.
Operators need to own the documentation of these processes — it will save a lot of panic, headache and even dollars in the long run.
Russ Hosea MBA, PMP is the CRO of FitnessEMS. For more information visit fitnessems.com, call 770-807-9741 or email firstname.lastname@example.org.