Take 10 – Lesson #3

DEFENSES TO NEGLIGENCEDEFENSES TO NEGLIGENCEJoAnn Eickhoff-Shemek, Ph.D., FACSM, FAWHP

President and FounderThe Fitness Law and Risk Management Academy, LLC

www.fitnesslawacademy.com

Disclaimer: The “educational” information in this PowerPoint presentation should not be construed to

be the provision of legal advice. For individual legal advice, it is necessary to obtain legal counsel inthe jurisdiction where such appropriate advice can be provided.

Topics• Types of defenses• Defenses that do not work• Understanding primary assumption of

risk• Understanding the waiver defense• Legal cases – Primary Assumption of

Risk• Legal cases – Waiver• Waiver textbook

Types of Defenses to Refute (Defend) Negligence Claims

NOTE: This presentation will focus on the two most common defenses:

(a) Primary Assumption of Risk (b) Waiver

Defenses That Do Not Work!

Understanding the Primary Assumption of Risk Defense

Definition: A legal doctrine (or legal theory) that states: “a plaintiff may not recover for an injury in which he assents, i.e., that a person may not recover for an injury received when he voluntarily exposes himself to a known and appreciated danger” Black’s Law Dictionary (1)

Note: Applicable to injuries due to “inherent” risks – not negligence

Primary Assumption of Risk:Factors Courts Consider For It To Be An Effective Defense

Primary Assumption of RiskTo strengthen this defense:

Describes the inherent risks in a written document* signed by participants

Assumption of Risk: I understand that the inherent risks of muscle strength/endurance, cardiovascular, and flexibility activities vary with the activity, the physiological system(s) involved, and with the exercise equipment used. Common minor risks include minor muscle strains, muscle sprains, muscular fatigue, contusions, and post-exercise soreness. More serious, but less frequent, risks include joint injuries, torn muscles, heat-related illnesses, and back injuries. There is also the remote risk of a catastrophic incident (e.g., stroke, heart attack, paralysis, or death).

I have read the previous paragraphs and I know the nature of the activities of ES, I understand the demands of those activities relative to my physical condition and skill level, and I appreciate the types of injuries that may occur as a result of activities made possible through ES. I assert that my participation is voluntary and that I knowingly assume all such risks. Taken From: USF Exercise Science (ES) Program -- Assumption of Risk and Waiver of Liability)

*Language that describes the “inherent” risks (minor, major, & death) can be included in various types of documents such as a waiver, an informed consent, agreement to participate, and express assumption of risk.

Understanding the Waiver Defense

Definition: A waiver (prospective release) is a contract signed by an individual prior to participation that absolves the defendants (e.g., fitness personnel and facilities) from their own “ordinary” negligence by including exculpatory language.

Waivers protect against “ordinary” negligence – not gross negligence

Important Factors to Consider to Help Make the Waiver Enforceable

Waivers: Unenforceable in Certain States*

*Cotten and Cotten, 2012 (2)**Public policy means that the act is not in the best interest of the public as a whole. [Black’s Law Dictionary (1)]

Waiver of LiabilityExculpatory Language

Waiver of Liability: In consideration of permission to use the property, facilities, and services of ES, today and on all future dates for the duration of ES, I (on behalf of myself, my heirs, personal representatives, or assigns) do hereby release, waive, and discharge ES, USF Board of Trustees, a public body corporate (USF) and its faculty members, students, employees, and agents from liability from any and all claims including and rising from negligence of any member of ES, USF, and its faculty members, students, employees, or agents.

This agreement applies to 1) personal injury (including death) from incidents or illnesses arising from participation in ES activities (including, but not limited to, health and fitness assessments, supervised and unsupervised personal training activities, classes, observation, individual use of facilities or equipment, shower/locker room area, and all premises including the associated sidewalks and parking lots), and 2) any and all claims resulting from the damage to, loss of, or theft of property.

(USF Exercise Science Program -- Assumption of Risk and Waiver of Liability)

NOTE: Before any waiver is used, it MUST be reviewed by a competent lawyer to help ensure it will be enforceable in your jurisdiction.

Legal Cases

Please refer to “U.S. Negligence Lawsuits” – handout Please refer to “U.S. Negligence Lawsuits” – handout available at available at www.fitnesslawacademywww.fitnesslawacademy under Free Resourcesunder Free Resources

Regarding the Primary Assumption of Risk Defense, see the following cases:

Rostai Corrigan Santana

Regarding the Waiver Defense, see the following cases: Santana Roer Stelluti

Legal Cases: Primary Assumption of Risk

Rostai Rostai (p. 2)(p. 2) Note how the court ruled that the plaintiff “assumed the risks” even though Note how the court ruled that the plaintiff “assumed the risks” even though

they acknowledged the trainer’s conduct was negligent.they acknowledged the trainer’s conduct was negligent. The court stated that if the trainer’s conduct had been intentional or The court stated that if the trainer’s conduct had been intentional or

reckless – then the primary assumption of risk would not have protected reckless – then the primary assumption of risk would not have protected the defendants from liability.the defendants from liability.

Many legal scholars have disagreed with this court’s ruling because the Many legal scholars have disagreed with this court’s ruling because the primary assumption of risk defense usually protects defendants from primary assumption of risk defense usually protects defendants from injuries due to inherent risks only, not negligence. injuries due to inherent risks only, not negligence.

CorriganCorrigan (p. 5) (p. 5) In this case, the court ruled that the primary assumption of risk was not an In this case, the court ruled that the primary assumption of risk was not an

effective defense to protect the defendants because:effective defense to protect the defendants because: the trainer’s conduct was negligent (improper instruction and supervision). the trainer’s conduct was negligent (improper instruction and supervision). the plaintiff was a novice and therefore did not fully understand and appreciate the plaintiff was a novice and therefore did not fully understand and appreciate

the inherent risks of using a treadmill.the inherent risks of using a treadmill.

Legal Cases: Primary Assumption of Risk -- Cont.

SantanaSantana (p. 6) (p. 6) The court ruled that the primary assumption of risk defense was not The court ruled that the primary assumption of risk defense was not

effective in protecting the defendants because the step aerobics instructor effective in protecting the defendants because the step aerobics instructor increased the risks over and beyond those inherent in the activity – as increased the risks over and beyond those inherent in the activity – as described by the expert witness.described by the expert witness.

Another factor considered by this court (that was not included on the Another factor considered by this court (that was not included on the handout) was the distinction between sports and fitness with regard to the handout) was the distinction between sports and fitness with regard to the primary assumption of risk; the court stated that sports by their nature primary assumption of risk; the court stated that sports by their nature inherently create extreme risks of inherently create extreme risks of injuries due to:injuries due to:

• Physical contact between participantsPhysical contact between participants• Competition aimed at scoring points, racing against time, or accomplishing Competition aimed at scoring points, racing against time, or accomplishing

feats of speed and strengthfeats of speed and strength

Whereas exercise programs such as the step aerobics class in this case are Whereas exercise programs such as the step aerobics class in this case are designed to enhance health and fitness and therefore should not be designed to enhance health and fitness and therefore should not be designed to create extreme risks of injury.designed to create extreme risks of injury.

Legal Cases: Waivers

SantanaSantana (p. 6) (p. 6) The plaintiff claimed she was not informed of the waiver – it was hidden on The plaintiff claimed she was not informed of the waiver – it was hidden on

the back side of the membership agreement and she was not offered time to the back side of the membership agreement and she was not offered time to read it.read it.

The appellate court questioned the validity of the waiver, The appellate court questioned the validity of the waiver, e.ge.g., the plaintiff ., the plaintiff was unaware of it -- no advisement near the signature line (on first page), was unaware of it -- no advisement near the signature line (on first page), and it’s placement on the back side of the membership agreement, diluted and it’s placement on the back side of the membership agreement, diluted color (light ink), and small font (8 point type) made it inconspicuous.color (light ink), and small font (8 point type) made it inconspicuous.

Roer Roer (p. 8)(p. 8) The court stated:

“…“…the occurrence which caused the Plaintiff’s injuries was naturally associated the occurrence which caused the Plaintiff’s injuries was naturally associated with the defendants breach of their alleged duty (with the defendants breach of their alleged duty (i.e., to secure the exercise ., to secure the exercise ball…) and “…that it was foreseeable that placing an exercise ball in proximity ball…) and “…that it was foreseeable that placing an exercise ball in proximity to a moving treadmill…posed a danger to the person using it…”to a moving treadmill…posed a danger to the person using it…”

The exculpatory clause in the waiver did not include the proper language to The exculpatory clause in the waiver did not include the proper language to protect the defendants from their own negligence – and even if it had, it would protect the defendants from their own negligence – and even if it had, it would not have unenforceable under:not have unenforceable under:

NY General Obligations Law § 5-326. Agreements exempting pools, gymnasiums, NY General Obligations Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability places of public amusement or recreation and similar establishments from liability for negligence void and unenforceablefor negligence void and unenforceable

Legal Cases: Waivers – Cont.

Stelluti Stelluti (p. 6) – (p. 6) – this explanation is not included in the handoutthis explanation is not included in the handout Stelluti claimed the waiver was against public policy, but after analyzing

this claim using the ruling in Tunkl * -- a landmark case that courts rely on to determine if a waiver is against public policy -- the Court stated that the waiver was an adhesion contract (yes – plaintiff had to sign it or could not use the club) but it did not create unequal bargaining power (plaintiff could have gone somewhere else). Therefore the Court ruled the waiver enforceable. Unequal bargaining power is one of the factors (from Tunkl) that if present will deem the waiver against public policy and thus unenforceable.

Two dissenting justices stated that the majority ruling is not in the public interest because:

Waivers allow clubs to operate negligently with no consequences These contracts of adhesion will be become an industry-wide practice (patrons

will have no bargaining powers) Without an incentive to provide safe programs/facilities – the cost to the public

will be an increase in the number of avoidable accidents in health clubs Ruling of this Court is not in step with the enlightened approaches taken by

courts of other jurisdictions that have barred this very type of exculpatory clauses

**Tunkl v. Regents of the University of CaliforniaTunkl v. Regents of the University of California ,, 60 Cal.2d. 92 (Cal., 1963).60 Cal.2d. 92 (Cal., 1963).

Textbook: Waivers and Releases of Liability(www.SportWaiver.com)

Analyzes waiver law by state (summarizes key cases for each state) and each state is classified based on the exculpatory language needed as follows:

LenientModerateStrictStrict or not enforcedNot enforced

Analyzes waiver law and minor participantsInformed Consents and Agreements to ParticipateWriting and administration factors for waivers

Stand-alone waiversIncluded within another documentGroup waivers, etc.

THANK YOU!

To obtain a more in-depth understanding and application

of legal and risk management concepts, register for one

of the “educational courses” at: www.fitnesslawacademy.com

References: References: 11. . Black, HC, et al. (1991). Black, HC, et al. (1991). Black’s Law DictionaryBlack’s Law Dictionary. (6. (6thth ed.). St. Paul, Minnesota: West Publishing Co. ed.). St. Paul, Minnesota: West Publishing Co.

2. Cotten, DJ & Cotten, MB. (2012). 2. Cotten, DJ & Cotten, MB. (2012). Waivers & Releases of LiabilityWaivers & Releases of Liability . (8. (8thth ed.). Statesboro, GA: Sport ed.). Statesboro, GA: Sport

Risk ConsultingRisk Consulting..

Note: : References for the legal cases are listed in the handout: References for the legal cases are listed in the handout: U.S. U.S.

Negligence Lawsuits.Negligence Lawsuits.