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

Avoiding lawsuits also keeps equipment costs from rising since manufacturers build insurance costs into the price of equipment, Moss says.

Including manufacturers in waiver forms could discourage member lawsuits, but it will not make them obsolete.

“If a club operator’s actions voided a release, the club member could still sue,” Moss says.

Reasons for possible suits include injuries alleged due to not maintaining equipment as specified, failure to instruct a member on the proper use of a machine, or modifying equipment, such as replacing a treadmill’s belt with a belt not recommended by the manufacturer.

In most jurisdictions, club owners do not need to name specific manufacturers in their member waiver forms but just note that the waiver covers all equipment in the facility, Moss says. However, a few jurisdictions, such as the state of Ohio, require that manufacturers be named explicitly, Herbert says.

Further complicating the issue is that waivers themselves are not valid in some places. Virginia courts, for example, do not recognize them, and in New York state, they are prohibited by state statute, Herbert says.

Robert Bovarnick, a Philadelphia-based attorney who has represented several Gold’s Gym franchisees and independent fitness facilities, says that Wisconsin courts have ruled against the enforceability of liability waivers in six cases because they do not allow for individual negotiations before a member signs it.

“It’s absurd,” Bovarnick says. “A club operator would do little else all day except negotiating individual waivers.”

The lawyers advise club operators to consult with their attorneys to determine what waiver language is appropriate, valid and required within the jurisdiction(s) in which they operate. Moss advises that operators require members to sign new waiver forms each year upon membership renewal and that the waiver language be updated by an attorney because laws constantly evolve.

CONTINUED ON NEXT PAGE

Proper equipment maintenance—keeping equipment lubricated and replacing parts after a certain number of operating hours—is always an issue in liability cases, Herbert says. That is why Moss says that club owners should have the latest information about cleaning and maintaining equipment, and they should ensure their staff members know where that information is kept. Operators should train staff to report equipment that needs maintenance so that repairs are done quickly.

“The more diligent you are about maintaining equipment—not just dusting it off, but checking cables, bearings, etc.—the better off you’ll be,” Moss says.

When equipment is out of service or broken, club operators must immediately cover it up or take it off the gym floor, Herbert says.

“I’ve seen people try to re-plug in treadmills that previously were smoking,” Herbert says. “That is very dangerous.”

If it is proven that equipment broke due to improper maintenance by the club operator, then 100 percent of the liability is the club’s, Moss says. Some manufacturers even have club operators sign off on documentation stating that the operator has received the maintenance schedule for the equipment and is now responsible for its maintenance.

Potential legal problems include staff failing to adequately train members on how to use equipment, stop its operation, and mount and dismount it, Herbert says. Moss suggests posting instructions for equipment use on the equipment and ensuring staff has access to copies of those instructions. Other times, gym managers put equipment too close to one another or do not properly bolt it to the floor.

Both facility managers and manufacturers should train staff on these issues, Moss says.

“Risk management does not mean sticking your head in the sand and relying on your insurance company when disaster strikes,” he says.