Common Gym Liability Concerns And How To Alleviate Them
As a gym owner or coach, you go into your facility every day wanting to help people change their lives. Unfortunately, not every day will be full of sunshine, rainbows, and personal records. Some days there will be injuries, lawsuits, and insurance debacles. That sure escalated quickly. To help ease your worried mind, we are going to give you a crash course on common liability concerns and how you can prepare your gym against them. Although I am a licensed attorney in Mississippi, nothing in this article constitutes legal advice. Please seek local legal counsel in your state to make sure you and your gym are in accordance with state law.
Liability & Negligence
In 2015 there were 36,180 registered gyms in the United States. 55 million memberships were sold and close to five billion gym visits were recorded. While that sounds like a proverbial cash cow for gym owners, it also means there were 5 billion opportunities for someone to hurt themselves on gym property and hold a gym liable for damages. The Center For Disease Control reports that an average 1.5 million individuals are injured yearly in athletic activities worldwide, with 10,000 seeking emergency room service daily. Protect your gym against having to pay these medical bills out of pocket by alleviating your liability.
The legal profession has defined liability as "legal responsibility". Sounds easy enough to understand, right? After all, owning a gym or coaching athletes comes with inherent responsibilities. People walking into your gym trust that you are providing a safe environment: secure equipment, property free of hazards, knowledgeable staff, safe programming. General liability and premise (property) liability are heavily litigated concerns. A gym or gym owner can be found liable for injuries for a multitude of reasons, but a bulk of the suits are for negligence, so we will focus on those claims.
Negligence
Negligence is a common suit brought against gym owners or trainers. Individuals will sue for negligence should the gym or a trainer fail to exercise reasonable care.
In order for someone to prevail in a claim against you for negligence they must prove four elements: (1) duty, (2) breach, (3) causation, and (4) damages.
Insurance & Hazards
While the variations of liability are relatively short, there is a plethora of insurance policies to choose from in order to protect your business. Fortunately many insurance companies are able to combine a few of them into packages specifically geared for gym owners. Your gym activities, facility size, and occupational hazards are all taken into account.
Health Club Insurance and Business Owners Policies: These policies are catered to your business and will typically contain general liability, property, and loss of income insurance.
Trainer Insurance: Dependent on a gym's insurance policy, trainers can be covered either as employees or independent contractors. If you are wondering which one you are, look at your pay stubs: if taxes are taken out, then you are an employee. Regardless of the classification it would benefit trainers to procure their own training insurance separate from the gym's policy. This will help shield trainers (especially independent contractors who may not always be covered) against having to potentially pay all damages out of their own pocket. More so, it will help keep trainers safe in the event have to travel to various gyms or homes to train your clients, i.e. the policy follows you and isn't connected with just one facility.
Property Insurance: If you operate out of a structured space, then property insurance will help alleviate damages associated with the property. Fire damage, severe weather, and vandalism are a few common concerns you will want to protect against. Aside from damage to property itself, property insurance will help protect landowners and gym owners against slip and fall cases that occur on the premises. If you have showers and a locker room, you can help alleviate liability by providing slip resistant mats or flooring. With the growth in atypical health clubs like functional fitness gyms or weightlifting gyms who use stall mats (rubber mats put together), make sure your flooring has been properly assembled so the mats don't protrude or hold bumps one could fall on. An easy way to keep your gym in the clear from property damage is to implement a daily, weekly, monthly, quarterly and yearly schedule for preventative maintenance and inspection of the premises and equipment. The key is to make sure this protocol is followed, written down, and maintenance recorded by your staff.
Equipment Insurance: Barbells, weights, cable machines, cardio equipment: while very common in gyms, this equipment is still inherently dangerous, and potentially faulty, and should be insured. Sit down with your insurance agent or browse your current policy before investing in a standalone policy, as most general policies will cover equipment. While “less is more” may be appropriate when discussing accessorizing, the same is not true of insurance policies. You want to stay in your budget, but it's better to have too much insurance than not enough when you are faced with injuries and lawsuits.
Worker's Compensation Insurance: If you have trainers and staff on payroll and they are not independent contractors, you should highly consider worker's compensation insurance. As employees working in a very physical setting they are more prone to injury and are interacting with your clients on a daily basis.
Additional, or Excess, Insurance: If you host sanctioned tournaments or have events outside your regular property then getting supplemental insurance specifically for that event would not be a bad idea. It's important to note that some of those organizations' insurance policies for events will only protect you against members of that organization if they are injured. For example, if you are hosting a USA Weightlifting (USAW) meet, your event sanction will protect you against USAW member damages. However, if you allow non-USAW athletes to compete and they get hurt, the event sanction may not protect you against liability. (Make sure to read the waiver portion of this article before you high five yourself if someone sues you.)
Waivers
Waivers are one of the best risk management tools for your business. You can have every insurance policy in the world but if you don't a solid activity release waiver, then you could be opening up your wallet more than necessary should someone get injured on your premises. If you take nothing else away from this article, then please take notice of this: if you aren't having individuals sign waivers upon entering your space and using your services, then you need to start. Immediately. Keep track of them in a folder, physical or online, and make sure they are up to date.
In the legal world waivers are crucial to helping you contest claims. The purpose is twofold: recorded notice & contract. The waiver first serves as notice that the individual is entering this activity knowing dangers associated with it. Gym members now know the risks involved in their training activities and accept them. A waiver is the forfeiting or surrendering of claims, rights, or privileges. In exchange for participating in the activities, the gym member forfeits their right to sue the gym or trainer. Essentially this means they promise not to sue the facility for dangers associated with those activities detailed in the waiver. In exchange the gym promises to not intentionally or negligently harm or injure the gym member during those activities.
As a general rule, waivers are enforceable and upheld. As with anything else, there are exceptions. The waiver will only protect the gym from injuries occurring as a result of risks listed in the waiver. Should a waiver be deemed too vague or ambiguous or try to discharge the facility from gross negligence then it will not be given as much weight or enforced in a court. It is important to note that some facilities will place a clause within the waiver that says that should any provision be deemed unenforceable or void, the rest of the provisions remain intact.
Make sure your waiver is its own document separate from any other agreement you have individuals sign, i.e. do not bury the waiver. Give your gym members or clients a copy of the agreement for their records. Take a look at the sample release waiver, which you can use as a guide. Please check with local legal counsel before implementing your waiver in your business.
You stretch to alleviate potential soreness after training, so why wouldn't you have insurance policies and waivers to help alleviate the headache of potential lawsuits? You have invested a lot of time and money into your gym & business. Make sure your risk management toolbox is full of insurance policies, standard operating procedures, and waivers to help protect against any lawsuits or settlements that come your way.
See the sample waiver in the PDF version of this article.
Liability & Negligence
In 2015 there were 36,180 registered gyms in the United States. 55 million memberships were sold and close to five billion gym visits were recorded. While that sounds like a proverbial cash cow for gym owners, it also means there were 5 billion opportunities for someone to hurt themselves on gym property and hold a gym liable for damages. The Center For Disease Control reports that an average 1.5 million individuals are injured yearly in athletic activities worldwide, with 10,000 seeking emergency room service daily. Protect your gym against having to pay these medical bills out of pocket by alleviating your liability.
The legal profession has defined liability as "legal responsibility". Sounds easy enough to understand, right? After all, owning a gym or coaching athletes comes with inherent responsibilities. People walking into your gym trust that you are providing a safe environment: secure equipment, property free of hazards, knowledgeable staff, safe programming. General liability and premise (property) liability are heavily litigated concerns. A gym or gym owner can be found liable for injuries for a multitude of reasons, but a bulk of the suits are for negligence, so we will focus on those claims.
Negligence
Negligence is a common suit brought against gym owners or trainers. Individuals will sue for negligence should the gym or a trainer fail to exercise reasonable care.
In order for someone to prevail in a claim against you for negligence they must prove four elements: (1) duty, (2) breach, (3) causation, and (4) damages.
- Under the circumstances a legal duty must have been owed to the person bringing suit. Generally you have a legal duty to keep your facility in safe condition and to act in a reasonable manner so as to not injure those under your training care. Individuals on your gym premises fall into two categories: guests (i.e. members or potential members in the facility) and trespassers. You owe a higher duty of care to guests than trespassers.
- Even if a legal duty was owed, you, or your staff, must have breached that duty. The litmus legal test for this is the "reasonably prudent person" standard. This means that an average person, knowing what the gym owner or staff knew at the time, would have behaved in the same manner. If so then there is no breach of duty. If he would not then there was a breach of duty. must have been a causation between the breach and the injuries/damages inflicted on the individual.
- Once a breach of duty has been established, that breach must have been reasonably foreseeable and the cause of the individual's damages for the suit to prevail. For example, if an individual has unknown heart disease and has a heart attack while using the restroom in your facility, then you will likely not be held liable for negligence because your facility did not cause that health risk. However, if a client is injured using your cable machine in 2016 and you haven't cleaned the machine since 2009 despite manuals saying it should be cleaned weekly, then you may be liable for gross negligence.
- If there was a duty, breach, and causation, then the injured person must prove damages. This could be medical bills (physical and mental), property damages, and loss of income among other things. An individual could slip and fall on the floor but if they weren't hurt, or can't show losses resulting from that fall, then they will have no damages and therefore no negligence case against you.
Insurance & Hazards
While the variations of liability are relatively short, there is a plethora of insurance policies to choose from in order to protect your business. Fortunately many insurance companies are able to combine a few of them into packages specifically geared for gym owners. Your gym activities, facility size, and occupational hazards are all taken into account.
Health Club Insurance and Business Owners Policies: These policies are catered to your business and will typically contain general liability, property, and loss of income insurance.
Trainer Insurance: Dependent on a gym's insurance policy, trainers can be covered either as employees or independent contractors. If you are wondering which one you are, look at your pay stubs: if taxes are taken out, then you are an employee. Regardless of the classification it would benefit trainers to procure their own training insurance separate from the gym's policy. This will help shield trainers (especially independent contractors who may not always be covered) against having to potentially pay all damages out of their own pocket. More so, it will help keep trainers safe in the event have to travel to various gyms or homes to train your clients, i.e. the policy follows you and isn't connected with just one facility.
- Personal Trainer Insurance: If you train individuals in any capacity, you'll want to get this policy. Many insurance companies will offer special discounted rates for certain national personal training organization's members. Some organizations themselves will offer insurance through the national office.
- Group Exercise Insurance: If you teach bootcamps, aerobics classes, or anything in a group setting, you may want to consider Group Exercise Insurance.
- CrossFit™ Insurance: For individuals working in CrossFit™ affiliates and possessing at least the Level 1 certificate, the organization has offered specific insurance through the Risk Retention Group. They have successfully defended suits involving rhabdomyolysis and gross negligence.
Property Insurance: If you operate out of a structured space, then property insurance will help alleviate damages associated with the property. Fire damage, severe weather, and vandalism are a few common concerns you will want to protect against. Aside from damage to property itself, property insurance will help protect landowners and gym owners against slip and fall cases that occur on the premises. If you have showers and a locker room, you can help alleviate liability by providing slip resistant mats or flooring. With the growth in atypical health clubs like functional fitness gyms or weightlifting gyms who use stall mats (rubber mats put together), make sure your flooring has been properly assembled so the mats don't protrude or hold bumps one could fall on. An easy way to keep your gym in the clear from property damage is to implement a daily, weekly, monthly, quarterly and yearly schedule for preventative maintenance and inspection of the premises and equipment. The key is to make sure this protocol is followed, written down, and maintenance recorded by your staff.
Equipment Insurance: Barbells, weights, cable machines, cardio equipment: while very common in gyms, this equipment is still inherently dangerous, and potentially faulty, and should be insured. Sit down with your insurance agent or browse your current policy before investing in a standalone policy, as most general policies will cover equipment. While “less is more” may be appropriate when discussing accessorizing, the same is not true of insurance policies. You want to stay in your budget, but it's better to have too much insurance than not enough when you are faced with injuries and lawsuits.
Worker's Compensation Insurance: If you have trainers and staff on payroll and they are not independent contractors, you should highly consider worker's compensation insurance. As employees working in a very physical setting they are more prone to injury and are interacting with your clients on a daily basis.
Additional, or Excess, Insurance: If you host sanctioned tournaments or have events outside your regular property then getting supplemental insurance specifically for that event would not be a bad idea. It's important to note that some of those organizations' insurance policies for events will only protect you against members of that organization if they are injured. For example, if you are hosting a USA Weightlifting (USAW) meet, your event sanction will protect you against USAW member damages. However, if you allow non-USAW athletes to compete and they get hurt, the event sanction may not protect you against liability. (Make sure to read the waiver portion of this article before you high five yourself if someone sues you.)
Waivers
Waivers are one of the best risk management tools for your business. You can have every insurance policy in the world but if you don't a solid activity release waiver, then you could be opening up your wallet more than necessary should someone get injured on your premises. If you take nothing else away from this article, then please take notice of this: if you aren't having individuals sign waivers upon entering your space and using your services, then you need to start. Immediately. Keep track of them in a folder, physical or online, and make sure they are up to date.
In the legal world waivers are crucial to helping you contest claims. The purpose is twofold: recorded notice & contract. The waiver first serves as notice that the individual is entering this activity knowing dangers associated with it. Gym members now know the risks involved in their training activities and accept them. A waiver is the forfeiting or surrendering of claims, rights, or privileges. In exchange for participating in the activities, the gym member forfeits their right to sue the gym or trainer. Essentially this means they promise not to sue the facility for dangers associated with those activities detailed in the waiver. In exchange the gym promises to not intentionally or negligently harm or injure the gym member during those activities.
As a general rule, waivers are enforceable and upheld. As with anything else, there are exceptions. The waiver will only protect the gym from injuries occurring as a result of risks listed in the waiver. Should a waiver be deemed too vague or ambiguous or try to discharge the facility from gross negligence then it will not be given as much weight or enforced in a court. It is important to note that some facilities will place a clause within the waiver that says that should any provision be deemed unenforceable or void, the rest of the provisions remain intact.
Make sure your waiver is its own document separate from any other agreement you have individuals sign, i.e. do not bury the waiver. Give your gym members or clients a copy of the agreement for their records. Take a look at the sample release waiver, which you can use as a guide. Please check with local legal counsel before implementing your waiver in your business.
You stretch to alleviate potential soreness after training, so why wouldn't you have insurance policies and waivers to help alleviate the headache of potential lawsuits? You have invested a lot of time and money into your gym & business. Make sure your risk management toolbox is full of insurance policies, standard operating procedures, and waivers to help protect against any lawsuits or settlements that come your way.
See the sample waiver in the PDF version of this article.
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Amber Sheppard is a licensed attorney in Louisiana and Mississippi who routinely provides small business counsel to gym owners. When she isn’t running her legal practice Sheppard Law PLLC with her service dog Tubbs, she can be found coaching weightlifters and powerlifters with Mississippi Barbell. |
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