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COMMONLY USED DEFENSES THAT WORK – PRIMARY ASSUMPTION OF RISK & WAIVERS
Primary Assumption of Risk (PAR) – a defense that can be used for injuries/deaths due to “inherent” risks – a
participant must know, understand, and appreciate the inherent risks associated with the activity and voluntarily
assumes those risks. Generally, the law does not allow plaintiffs to recover damages for risks they assume.
Factors that courts will consider to determine if this defense works: (a) nature of the activity, e.g.,
sports/recreation vs. fitness, (b) experience of the plaintiff, e.g., novice vs. expert, and (c) cause of the
injury/death, i.e., inherent risks or negligence.
Waiver – a contract (prospective release) signed by an individual prior to participation that contains
exculpatory language that absolves the defendants (e.g., fitness personnel and facilities) from their own
“ordinary” negligence. A variety of factors must be considered in order for the waiver to be enforceable.
Waivers are not enforceable in certain states based on statutes or public policy issues.
CASE LAW EXAMPLES
Rutnik (6) – Racquetball player dies of a cardiac arrest during a tournament – the PAR defense was effective in
protecting the defendants because he was an “experienced” player and therefore knew, understood, and
appreciated the inherent risks associated with participation in a vigorous sport including cardiac arrest/death.
Corrigan (7) – Plaintiff (novice) fell off a treadmill and injured her ankle -- her personal trainer did not
instructor or supervise her. The PAR defense was not effective because of the negligence of the trainer and
because the court stated that fitness activities are not considered sporting activities in which the PAR defense
would likely apply.
Santana (8) – Plaintiff fell during a step class and fractured her foot – the PAR defense was not effective in
protecting the defendants because the instructor increased the risks over and above those inherent in a step
aerobics class. The waiver defense was not effective either because the court did not approve of the exculpatory
language appearing on the back side of a membership application document in small font.
Stelluti (9) – Plaintiff was injured during a spinning class and claimed the instructor was negligent. The New
Jersey Supreme Court ruled that the waiver protected the defendants from their own negligence. However, two
dissenting judges provided their opinions about waivers, e.g., they encourage a lack of care.
Roer (10) – Plaintiff was injured when he fell off a treadmill caused by an exercise ball getting sucked under
the belt propelling the treadmill forward several feet. The waiver did not protect the defendants from their own
negligence – it did not contain proper exculpatory language and even if it did, it would not be allowable under a
NY statute that prohibits waivers.
RESOURCES and the RISK MANAGEMENT PYRAMID
Resources -- to learn how to incorporate the primary assumption of risk and waiver defenses
Risk Management Pyramid – free poster depicting 7 lines of defense to help protect against negligence
References
- CDC Injury Research Agenda 2009-2018. Retrieved February 6, 2013 from:
http://www.cdc.gov/injury/researchagenda/cdc_injury_research_agenda-a.pdf - U.S. CPSC National Electronic Injury Surveillance System (NEISS) Data, 2007-2009. Retrieved October 8, 2010 from:
http://www.cpsc.gov/LIBRARY/neiss.html - Kerr, ZK, Collins, CL, & Comstock, RD. (2010). Epidemiology of Weight Training-Related Injuries Presenting to United
States Emergency Departments. The American Journal of Sports Medicine. DOI: 10.1177/0363546509 35156 - Bursik, D. & Conway, G. (2013). Warning Clients of Possible Effects of Valsalva With Resistance Exercise – Implications to
the Standard of Care For Fitness Professionals? The Exercise, Sports and Sports Medicine Standards & Malpractice
Reporter, 2(1), 11-12. - Eickhoff-Shemek, JM, Herbert, DL & Connaughton, DP. (2009). Risk Management for Health/Fitness Professionals: Legal
Issues and Strategies. Baltimore, Maryland: Lippincott Williams & Wilkins. - Rutnik v. Colonie Center Court Club, Inc., 672 N.Y.S.2d 451 (N.Y. App. Div. LEXIS 4845, 1998).
- Corrigan Corrigan v. Musclemakers, Inc., 258 A.D.2d 861 (N.Y. App. Div., 1999).
- Santana v. Women’s Workout and Weight Loss Centers, Inc., 2001 WL 1521959 (Cal. App. Dist., 2001).
- Stelluti v. Casapenn Enterprises, LLC, In: Herbert, DL. (2010). New Jersey Supreme Court Upholds Health Club Release.
The Exercise Standards and Malpractice Reporter, 24(6), 81, 84-88. - Roer v. 150 West End Owners Corp., In: Herbert, DL. (2011). Errant Exercise Ball Causes Fall, Injury and Suit. The Exercise
Standards and Malpractice Reporter, 25 (2), 17, 20.