MEDWAY, MA -- In the wake of the Cybex International $66 million product liability suit announced last month, some manufacturers and club operators are taking a second look at the equipment in their facilities and the idea of bolting it down.
In the Barnhard v. Cybex verdict last month, Cybex was found 75 percent liable for the $66 million award. The case stemmed from a 2004 incident in which a Cybex leg extension machine fell over on a physical therapy assistant, Nancy Barnhard, at the Amherst Orthopedic Physical Therapy P.C. in Amherst, MA, where she worked at the time. Barnhard was rendered a quadriplegic because of the accident. She filed suit against Cybex, claiming that the equipment was not properly designed or installed.
John Aglialoro, chairman and CEO of Medway, MA-based Cybex, denies that Cybex has any liability in the case, saying that this type of machine has been used extensively without any other incidents. He contends that the plaintiff used the equipment improperly, pulling it over on herself in the process. Cybex plans an appeal of the verdict.
The question some club owners are now asking is whether older equipment should still be in use at facilities and whether equipment should be bolted down.
Kevin English, one of two lawyers from Phillips Lytle who served as attorneys for Barnhard, contends that this 27-year-old piece of Cybex equipment was not properly designed.
“The center of gravity was way to the weight stack side of the machine,” English says, although he adds that Cybex equipment design has improved in subsequent years. English also says that the instructions that Cybex gave for installing the equipment were inadequate because they did not specify that the equipment must be bolted down.
For this type of leg extension machine, he says the weight stack side of the machine should be unavailable to a person to lean on. Instead, it should be against another machine or a wall.
The leg extension machine that was involved in the accident is still being used at the Amherst facility, although it has now been moved so that the weight stack is against a wall, according to Robert Barrett, a partner in the firm of Baxter Smith & Shapiro P.C., which represented the Amherst facility. It was not bolted down at the time of the accident, he says, and still is not bolted.
In the past up until the present, most manufacturers simply recommend, not require, that strength equipment be bolted, says Steve Tharrett, a former ClubCorp executive and former CEO of the Russian Fitness Group. He is now president of Club Industry Consulting, Highland Village, TX, and he was editor for several editions of the American College of Sports Medicine’s “ACSM’s Health/Fitness Facility Standards and Guidelines.”
By recommending the equipment is bolted, manufacturers typically are covering themselves and passing off the liability to the club operator, he says.
Tharrett was an expert witness in another case involving fitness equipment that tipped over. In that case, the equipment also was not bolted down, but the club owner was found not liable because no standards exist to bolt down equipment.
Tharrett says that a club owner should never put just one bolt in a piece of equipment. Putting in one bolt shows that the operator thinks the equipment might tip over, he says, but by not putting any bolts in, operators demonstrate their belief that the equipment is safe without bolts.
“Either do all or none,” Tharrett says.
Tharrett recommends that club operators install their equipment according to manufacturers’ guidelines, and that they show proof that they did so. Better yet, have the manufacturer install the equipment. However, before an operator signs off on the manufacturer’s form that the equipment has been installed properly, that operator must always check to ensure that it actually was installed properly.
Concerning the age of equipment, no standards exist for when to retire it, Tharrett says. As long as a club operator follows the equipment’s recommended preventive maintenance program, the equipment is still considered usable, he says. Operators must have a system in place to track the routine maintenance, so if any issues occur, they can show proof of proper maintenance.
“Dumbbells and weight benches can be forever old,” says James H. Moss, an attorney specializing in recreation law and the editor of Outdoor Recreation & Fitness Law Review. “If the equipment has been kept in good shape and maintained, most weight equipment can last a long time.”