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Session Outline
ACSM’s 17th Health & Fitness Summit & Exposition
March 12 – 15, 2013
Paris Las Vegas, Las Vegas, NVProtecting Against Negligence: Understanding Defenses that Work and Don’t Work!
JoAnn M. Eickhoff-Shemek, Ph.D., FACM, FAWHP
Professor, Exercise Science
University of South Florida
Tampa, FL
[email protected]Despite many advances to improve fitness safety in the industry, the number of injuries associated with fitness activities
continues to increase each year. After an injury occurs, injured parties do not hesitate to file a negligence claim or lawsuit
against fitness professionals and/or facilities. Several defenses are available to refute (or defend) negligence claims such
as the Primary Assumption of Risk defense and the Waiver defense. It is important to understand under what
circumstances these defenses work and don’t work. Case law examples will be described to help demonstrate the
distinction between these two defenses and the specific protection they each provide. Participants will receive a free
poster--the Risk Management Pyramid—that depicts the many defenses that can provide protection against negligence.
I. Injury Data
a. CDC -- National Center for Injury Prevention and Control
b. U.S. Consumer Product Safety Commission (CPSC)
i. National Electronic Injury Surveillance System (NEISS)
ii. Weight Training-Related Injuries – NEISS
c. Examples of injuries incurred by plaintiffs in negligence lawsuits
II. Causes of Injuries from a Legal Perspective
a. Inherent risks
b. Negligence
i. Ordinary
ii. Gross, willful/wanton conduct, reckless conduct
c. Product defects/product liability
III. Brief Overview of Negligence
a. Definition
b. Four elements the plaintiff has to prove
IV. Areas of Potential Legal Liability that Expose Fitness Personnel/Facilities to Negligence
V. Defenses that Defendants have Available to Refute (or Defend) Negligence Claims
a. BEST DEFENSE – Do not breach your duties
b. Assumption of risk
c. Waiver (prospective release)
d. Comparative or contributory negligence
e. Immunity
f. Statutes of limitations
g. Product defects/product liability
NOTE: Defenses that will not work in a court of law: (a) not enough staff (b) takes too much time, (c) costs too much,
and (d) that’s how other facilities do things
VI. Primary Assumption of Risk Defense
a. Definition
b. A defense that is used for injuries due to “inherent” risks
c. Requirements for it to be an effective defense
VII. Waiver Defense
a. Definition
b. A defense that is used for injuries due to “ordinary” negligence
c. Requirements for it to be an effective defense
i. Exculpatory language that absolves the defendant of its own negligence
ii. Public policy issues