Every club operator and fitness equipment manufacturer lives with the threat of liability lawsuits. Club operators in most states can protect their businesses with member waiver forms. But manufacturers are a bit more vulnerable.

Last year’s Barnhard v. Cybex International product liability case has pointed out those vulnerabilities. In that case, equipment manufacturer Cybex International, Medway, MA, was found 75 percent liable for a $66 million award to Natalie Barnhard, who was left a quadriplegic in 2004 after she leaned on a Cybex leg extension machine to stretch her shoulder and it came down on her. The incident occurred at Amherst Orthopedic Physical Therapy, Buffalo, NY, where Barnhard then was employed as a physical therapy assistant.

Barnhard admitted using the equipment improperly, but she filed a suit claiming the machine, which had been manufactured in 1983, was not properly designed and was not bolted to the floor. Cybex is appealing the case. Amherst Orthopedic Physical Therapy was found 20 percent liable, and Barnhard herself was found 5 percent liable.

A signed waiver would not have protected the defendants in this case because Barnhard was an employee of the facility, not a member or patient. But the sheer size of the $66 million jury verdict has prompted many people to pay closer attention to club waiver forms in general.

“Fitness equipment results in a lot of litigation,” says David Herbert, an attorney in Canton, OH, who has represented both club operators and equipment manufacturers. “The litigation usually is either because of alleged manufacturing or design deficiencies; improper warnings, such as signs and how they’re posted; placement of the machine, for example, too close to other equipment or to walls; and failure to maintain the equipment as directed.”

James Moss, a Golden, CO-based attorney who specializes in recreation law, says that club member waiver forms should explicitly hold harmless equipment makers, thus shielding them in cases where a member is injured while using the equipment.

“The benefit to a club operator in any suit that’s avoided is dollars saved,” Moss says. “Clubs pay attorneys as well as employees during depositions, and they incur documentation costs. And all of those things aren’t covered by insurance. So anything club operators can do to stop litigation at the club level is a good thing.”

CONTINUED ON NEXT PAGE

Want to use this article? Click here for options!
© 2012 Penton Media Inc.