C H A P T E R

26
Legal Considerations

JoAnn M. Eickhoff-Shemek
Chapter 27
Common Injuries
Types of Injuries Leading to
Negligence Lawsuits
Frequent Injury Claims Occurring in
Fitness Facilities
 Causes of Injury and Negligence
• Negligence: failure to do something that a
reasonable, prudent professional would do or doing
something that a reasonable, prudent professional
would not have done given the same circumstances
• Most common injuries in fitness facilities arise
from
• inherent risks
• negligence
• product defects
 The Law and Legal System
• Primary
• Statutory (legislative)
• Administrative (executive)
• Case law (judiciary)

• Secondary
• Books, treatises, law review journals
• Help find primary sources of law or explain an area of
law
 Criminal Law Versus Civil Law
• Criminal law
• Charges are brought about by the government when
a statute is violated (e.g., theft, unauthorized
practice of medicine)
• Uses the term guilty
• Civil law
• Civil disputes between individuals, businesses,
organizations, and government agencies
• Uses the term liable
• Monetary damages are sought to compensate for
injury
Negligence
Fault Basis of Tort Liability
 Tort Law: Strict Liability
• Product liability
• Defect in product
• Liability is based on public policy—what is in the
best interest of society

• Vicarious liability
• Employers can be held strictly liable for harm to
third parties (caused by negligence of
employees): respondeat superior
Four Elements to Prove Negligence
1. Duty: the defendant owed a duty (or standard
of care) to the plaintiff
2. Breach of duty: the defendant failed to carry
out the duty
3. Causation: breach of duty was cause of harm
4. Harm and damages: harm occurred, resulting
in damages (losses) to the plaintiff
 Defenses Against Negligence

• Best defense: carry out legal duties properly

• Waiver defense
• Defense based on contract law
• A signed waiver indicates that an individual gives up
civil right to recover damages for ordinary
negligence
• Some waivers are not enforceable in certain states
• Waivers must be reviewed by a competent lawyer
before use
 Contract Law
• Examples: waivers, informed consents,
employment contracts, independent
contractor contracts, membership contracts,
purchase and lease agreements
• To be legally valid, the contract must address
the following:
• Agreement (offer and acceptance)
• Consideration (money paid for services rendered)
• Contractual capacity (both parties must have
capacity)
• Legality (contract’s purpose must be legal)
Three Federal Laws Applicable to the
Fitness Profession
1. Americans with Disabilities Act (ADA)
• Title I: prohibits employment (>15 employees)
discrimination
• Title III: provide access and programming for those
with disabilities: consider ACSM certified inclusive
fitness trainer certification
2. Occupational Safety and Health Administration’s
(OSHA) Bloodborne Pathogens Standard
• Administrative law
• Reduce or eliminate exposure to pathogens via
blood
• Requires written exposure control plan (continued)
Three Federal Laws Applicable to the
Fitness Profession (continued)
3. Health Insurance Portability and
Accountability Act (HIPAA) Privacy Rule
• Mandates protection of private health information
• Questionable whether or not health and fitness
facilities are mandated to comply, but it is probably
wise to do so to help comply with other possible
laws and professional codes of ethics
• Participants must sign medical releases (different
from medical clearance) for fitness professionals to
obtain medical information
 Determining Duty: Considerations
• Courts determine duty in negligence cases
– Expert witnesses educate the court regarding the
duty the defendant (professional) owed to the plaintiff
(participant) given the circumstances.
– Fitness professionals will likely be held to a
professional standard of care
• Three factors that determine professional
standard of care
1. Nature of the activity
2. Type of participants
3. Environmental conditions
 Published Standards of Practice
• ACSM definitions
– Standard: minimum requirements that fitness facilities
must meet
– Guidelines: recommendations to improve the quality of
services provided
• Standards, guidelines, and position papers
reflect benchmarks of expected behaviors
• ACSM, NSCA, YMCA
• American Society for Testing and Materials (ASTM)
• Consumer Products Safety Commission (CPSC)
 Risk Management
• A proactive administrative process that will help
minimize liability losses for health/fitness
professionals and the organizations they
represent
• Four steps
1. Assess liability exposures
2. Develop risk management strategies
3. Implement risk management plan (e.g., staff training)
4. Evaluate risk management plan
 Minimizing Legal Liability
Risk management strategies should be
implemented in each of these areas:
•Personnel
•Preactivity screening
•Fitness testing and prescription
•Instruction and supervision
•Equipment and facility
•Emergency action plans
Example of a Facility Safety Sign to
be Posted in the Equipment Room
 Record Keeping and
Documentation of Evidence
• Staff credentials
• Criminal background checks of personnel
• Staff trainings
• Preactivity screening forms
• Waivers and informed consents
• Medical release forms
• Written guidelines on scope of practice
(continued)
 Record Keeping and
Documentation of Evidence (continued)
• Participant facility orientation
• Job performance appraisals of staff members
• Facility and equipment inspections
• Facility and equipment maintenance
• Written emergency action plan (EAP)
• Completed incident report forms and related
evidence
• Written exposure control plan