Fitness Law Academy 8.docx

Fitness Law Academy (FLA #8) Two Spotlight Cases Lack of Practical Skills Lead to Injury and Litigation Case #1: Failure to Teach Kettlebell Safety Gallant v. Hilton Hotels Corp. (1) The plaintiff in this case, Eric Gallant, claimed he was injured when he was struck in the back of his head by a kett...

Fitness Law Academy (FLA #8) Two Spotlight Cases Lack of Practical Skills Lead to Injury and Litigation Case #1: Failure to Teach Kettlebell Safety Gallant v. Hilton Hotels Corp. (1) The plaintiff in this case, Eric Gallant, claimed he was injured when he was struck in the back of his head by a kettlebell while taking a class taught by KettleBell Concepts, Inc. The class was held in a space that KettleBell Concepts Inc. rented from the Hilton Hotels Corp. Gallant sued Hilton Hotels Corp. and Hilton Worldwide, Inc. (Hilton) and KettleBell Concepts, Inc. and instructor David Ganulin (KettleBell).  Gallant claimed that he sustained the injuries when a kettlebell was swung by another participant in the class “who was negligently permitted, allowed and instructed to continue swinging kettlebells, despite people moving about the room resulting from defendants recklessness, negligent supervision, and negligent hiring.” (p. 1).  The defendants (Hilton and KettleBell) jointly filed a motion for summary judgment arguing that Gallant’s action was barred based on the waiver he signed. However, Gallant claimed that the waiver was unenforceable. He also claimed that Hilton had a duty to protect its guests against the gross negligence by its lessee, KettleBell.  An expert witness for the plaintiff, a certified kettlebell trainer, stated that “during any type of break, when no instructors are maintaining the required vigilant supervision, no movement or swinging of kettlebells should occur” (p. 3). This expert also stated that the NSCA: “recommends a six foot by four foot safety cushion, as a minimum, between kettlebell lifters at free weight stations. Such safety areas must be maintained whenever kettlebells are allowed to be lifted. Kettlebell lifters should be permitted to work only in designated lifting areas and…an area of at least five feet (side to side) and seven feet (front to back) should be maintained around all lifters when lifting is being performed… Moreover, for safe egress and ingress, there should be at least a 36 inch walkway maintained into the lifting area and a clear path provided to exits. No lifting should ever occur in this area, especially when student lifters are moving in or out of the facility” (p. 3).  In its analysis of the waiver, the court referred to the New York’s statute (GOL § 5-326) and stated that the defendants do not fall within the establishments listed within this statute.* Therefore, a waiver could have been enforceable, but the waiver Gallant signed was ambiguous. In addition, the court stated that it is well settled that waivers for willful or grossly negligent acts are void. The court granted the summary judgment for Hilton stating that their duty was to exercise reasonable care in maintaining their properties and there were no allegations that they breached that duty. However, summary judgment was denied for KettleBell and the court ordered this plaintiff’s action shall continue.  *Waivers for personal injuries are unenforceable in health clubs based on this N.Y. statute Case #2: Failure to Teach Novice Safe Exercise Mellon v. Crunch(2) Nell Mellon was injured while under the direction of personal fitness trainer, Gavin Umeh. Umeh testified that he was a professional personal trainer and prior to being employed by Crunch, he had been employed by three other facilities as a personal trainer. He also testified that he was certified by the American Council on Exercise and completed several programs with Equinox’s Fitness Training Institute as well as Crunch’s requirement to undergo personal training continuing education.  In Mellon’s second training session with Umeh, he had her perform an exercise “which consisted of having one foot on top of a rectangular bench approximately 2-3 feet high, having the other foot on the ground and hopping in order to switch feet” (p. 2). In her first attempt, “her left foot became caught under the bench causing her to fall backwards. She threw her hands behind her back to catch herself and fractured both wrists” (p. 2). One of the several negligent claims she made against the defendants was that Umeh pushed her beyond her physical abilities. An expert for the plaintiff stated that Umeh departed from accepted personal training practices and the departures directly resulted in the plaintiff’s injury. The expert also stated that the exercise:  “was too advanced based on the height of the bench…that the height of the bench increased her risk of injury, and a safer method would have been to practice the exercise without elevation or on an apparatus with lower elevation” (p. 7).  The court denied the defendant’s motion of summary judgment. Although the personal fitness trainer in this case was an experienced trainer and possessed certain credentials, he did not appear to be a competent instructor.