Max Goodman, a partner at the law firm SmithAmundsen, LLC, outlines the litigation process, how to avoid it and how to address it.
Hundreds of lawsuits are filed each year against fitness facilities. These lawsuits overwhelmingly stem from member injuries. These injuries are most commonly caused by use of fitness equipment, a slip and fall or during personal training sessions. Serious injuries often spark lawsuits beginning a years-long trudge through hours of depositions, expensive legal fees, financial risk and stress. Avoiding member injuries and resulting litigation must be a priority for every club operator. This article outlines the litigation process, how to avoid it, and best practices for addressing it.
THE LITIGATION PROCESS
Months after a member is injured on premises, the member’s attorney contacts you portraying a façade of unmitigated confidence in the merits of their lawsuit and the severity of their client’s injuries. They offer you the choice to pay an exorbitant sum to their client immediately or face a multi-million dollar lawsuit. How could this situation have been avoided and how best to deal with it?
When a member is injured, the club operator’s first step is to immediately obtain prompt medical care for them. Second, document everything. Document who the injured member spoke to about their injury and what was said. Obtain signed statements and contact information for all witnesses. Preserve surveillance footage and records of the member entering/leaving the club that day. Train all staff to perform these tasks in your absence.
Next, call your attorney. Your attorney will next have you compile all documents for that member. The member’s signed waiver and contract are essential to determine your exposure.
HOW A WAIVER IS USED IN A LAWSUIT
A liability waiver is a written acknowledgement that the member understands the risks of an activity and their agreement not to sue for negligence. Negligence is the most common lawsuit against health clubs (and among the easiest to prove) so a signed agreement not to sue on that theory of liability is extremely valuable. A waiver is your liability shield. This is how it works:
In response to an injured member’s lawsuit, your attorney will attach that member’s waiver to a Motion to Dismiss the case. Courts are reluctant to enforce waivers because they know people do not read them and because they limit the injured person’s right to sue. The court will only throw out the lawsuit if the waiver expressly warns of the exact cause of injury. A general waiver merely waiving claims resulting from “any and all injuries suffered on premises” is insufficient.
To avoid litigation’s long road, properly-worded waivers provide a quick exit ramp. Waivers also provide leverage to settle claims pre-suit for nominal amounts saving your business thousands in legal fees, damage awards, and lost time. Waivers must be specific to your modalities and offerings but, at a minimum, they should release liability for injuries from equipment use, class participation, personal training instruction or dietary guidance, and from slipping/tripping inside the premises including the locker rooms, while entering/exiting, on premises-adjacent sidewalks and in parking areas.
Remember that an injured member of your community may decide not to sue based on how you respond to them following their injury (i.e. be nice). Be careful what you put in writing, including emails and text messages, but be sure to check in on them.
Safer facilities protect your members while lessening the likelihood of injuries and lawsuits. Waivers, staff well-trained to respond to member injuries, and experienced counsel will help lessen your exposure when injuries occur. Avoid litigation if possible; if unavoidable, be prepared.
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