Take 10 – Lesson #3

1. Take 10 – Lesson #3 DEFENSES TO NEGLIGENCE JoAnn Eickhoff-Shemek, Ph.D., FACSM, FAWHP President and Founder The 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 in the jurisdiction where such appropriate advice can be provided.

2. 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

3. 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

4. Defenses That Do Not Work!

5. 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

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

7. Primary Assumption of Risk To 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.

8. 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

9. Important Factors to Consider to Help Make the Waiver Enforceable

10. 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)]

11. Waiver of Liability Exculpatory 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 itsfaculty 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.

12. Legal Cases • Please refer to “U.S. Negligence Lawsuits” – handout available at www.fitnesslawacademyunder 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

13. Legal Cases: Primary Assumption of Risk • Rostai(p. 2) • Note how the court ruled that the plaintiff “assumed the risks” even though they acknowledged the trainer’s conduct was negligent. • The court stated that if the trainer’s conduct had been intentional or reckless – then the primary assumption of risk would not have protected the defendants from liability. • Many legal scholars have disagreed with this court’s ruling because the primary assumption of risk defense usually protects defendants from injuries due to inherent risks only, not negligence. • Corrigan (p. 5) • In this case, the court ruled that the primary assumption of risk was not an effective defense to protect the defendants because: • the trainer’s conduct was negligent (improper instruction and supervision). • the plaintiff was a novice and therefore did not fully understand and appreciate the inherent risks of using a treadmill.

14. Legal Cases: Primary Assumption of Risk -- Cont. • Santana (p. 6) • The court ruled that the primary assumption of risk defense was not effective in protecting the defendants because the step aerobics instructor increased the risks over and beyond those inherent in the activity – as described by the expert witness. • Another factor considered by this court (that was not included on 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 inherently create extreme risks of injuries due to: • Physical contact between participants • Competition aimed at scoring points, racing against time, or accomplishing feats of speed and strength 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 create extreme risks of injury.

15. Legal Cases: Waivers • Santana (p. 6) • 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 read it. • The appellate court questioned the validity of the waiver, e.g., the plaintiff 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 color (light ink), and small font (8 point type) made it inconspicuous. • Roer(p. 8) • The court stated: • “…the occurrence which caused the Plaintiff’s injuries was naturally associated with the defendants breach of their alleged duty (i.e., to secure the exercise 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…” • 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 not have unenforceable under: • NY General Obligations Law § 5-326. Agreements exempting pools, gymnasiums, places of public amusement or recreation and similar establishments from liability for negligence void and unenforceable

16. Legal Cases: Waivers – Cont. • Stelluti(p. 6) – this 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 *Tunklv. Regents of the University of California,60 Cal.2d. 92 (Cal., 1963).

17. 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: • Lenient • Moderate • Strict • Strict or not enforced • Not enforced • Analyzes waiver law and minor participants • Informed Consents and Agreements to Participate • Writing and administration factors for waivers • Stand-alone waivers • Included within another document • Group waivers, etc.

18. 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: 1. Black, HC, et al. (1991). Black’s Law Dictionary. (6th ed.). St. Paul, Minnesota: West Publishing Co. 2.Cotten, DJ & Cotten, MB. (2012). Waivers & Releases of Liability. (8th ed.). Statesboro, GA: Sport Risk Consulting. Note: References for the legal cases are listed in the handout: U.S. Negligence Lawsuits.