Fitness Law Academy FLA #8 PDF

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. Legal/Risk Management Tip #1: In both Gallant and Mellon, the exercise professionals did not possess adequate practical skills to teach safely. The Mellon case demonstrates that certification, experience, and continuing education were not enough to prevent an injury caused by improper instruction. For credentials to be effective, they must include “high quality” practical training and formal assessment of teaching skills. Legal/Risk Management Tip #2: Expert witnesses for the plaintiffs in both Gallant and Mellon testified that the improper instruction caused the injuries to the plaintiffs. To support their opinions, expert witnesses often refer to standards of practice published by professional organizations, as demonstrated in the Gallant case, e.g., NSCA safety guidelines for teaching Kettlebell classes. Expert witnesses educate the court as to the duties owed to the plaintiff and, in their opinion, if the defendant breached these duties. Legal/Risk Management Tip #3: The court in Gallant found the waiver ambiguous making it unenforceable. If it had been written properly, it might have protected the defendants. Based on a N.Y. statute, waivers are unenforceable in health clubs, but the Hilton Hotel was not a health club so the statute was not applicable. It is essential that waivers are prepared by competent lawyers. The Link Between the Lack of Practical Skills and Legal Liability – Part 2 Part 1, in the last issue of this newsletter, described the link between the lack of practical skills and legal liability. The Butler spotlight case in Part 1 demonstrated this link as do the two spotlight cases in this issue: Gallant and Mellon. Part 2 will (a) discuss the development of teaching skills, (b) identify who is liable for negligent instruction, and (c) describe future directions for academic and certification preparation programs. Academic and certification preparation programs that focus on developing/assessing knowledge (e.g., passing written examinations) but do not focus on developing/assessing practical teaching skills create a gap between theory and practice that can result in claims/lawsuits involving negligent instruction. Theory (knowledge) → GAP → Practice (Teaching Skills) Teaching Skills Well-taught educational courses are needed to focus on developing teaching skills. These courses will help eliminate this gap between theory and practice, e.g., courses such as Theory and Practice of (1) Personal Fitness Training, (2) Group Exercise Leadership, and (3) Strength and Conditioning Coaching. These courses should include: - Knowledge and skills on how to develop written lesson plans that incorporate (a) safe principles of exercise such as warm-up, cool-down, and the FITT-VP principle based on an individual’s health/fitness status, and (b) safety guidelines and precautions published by professional organizations for various populations, e.g., ACOG (1) has a list of unsafe exercises for pregnant women. Note: Exercise professionals need to be aware of these published safety guidelines and understand how to apply them into the design and delivery of their lesson plans as demonstrated in the Gallant case. - Teaching experiences under the supervision of a “master” trainer/instructor/coach who can provide valuable feedback to the student, i.e., feedback on the quality of his/her written lesson plans and practical teaching skills. While completing these initial teaching experiences, students are working as teacher assistants. They are not ready to train/teach/coach on their own until their skills can be formally evaluated to determine if they are competent. - A formal written assessment of each student’s lesson planning and teaching skills at the end of the course with both the course instructor and supervisor of the practical teaching experiences completing the assessment. This assessment form, describing the assessment criteria, should be shared with the student at the beginning of the course. Importance of Lesson Plans to Prevent Injuries: NCAA Response to ER Cases In recent years, several cases of exertional rhabdomyolysis (ER) cases - some resulting in negligence lawsuits - have occurred in collegiate athletic strength and conditioning programs. In 2018, the NCAA Chief Medical Officer prepared an ER message that included five guiding principles regarding the prevention of ER (2). The fifth guiding principle specified that all strength and conditioning workouts should (a) “be documented in writing, (b) reflect the progression, technique, and intentional increases in volume, intensity, mode, and duration of the physical activity, and (c) be available for review by athletic departments” (p. 2). In some of the negligence lawsuits, it appeared that athletic administrators were unaware of training activities included in the workouts. Liability for Negligent Instruction: Academic Programs, Certification Programs, or Employers? It is unlikely that educational programs provided by academic institutions and certifying organizations will be held liable for the failure to provide adequate education/training, i.e., educational malpractice. Generally, courts have rejected educational malpractice claims because of “the fear of a potential flood of litigation against schools…the fear that an educational malpractice cause of action could entangle the courts into overseeing the day-to-day operations of schools…” (3, p. 111). Courts have stated that tort remedies (e.g., negligence) are not the best way to address problems of inadequate education and training. Therefore, it is the employer who will be liable for the negligent conduct of their employees (vicarious liability) and for their failure to properly hire, train, and supervise their employees (direct liability), as demonstrated in many of the cases described in this newsletter. In order to minimize negligent instruction claims/ lawsuits, it would be wise for employers to provide a course, as the one described above, for all new employees, especially for those who did not have such a course in their academic and/or certification preparation programs. Future Directions: Academic and Certification Programs To help prepare exercise professionals for one of their major legal duties - provide safe instruction it will be necessary for academic programs to require a course (as described above) and for certification programs to do the same after successful completion of a written exam. Otherwise, this education and training responsibility falls on the employer. Most employers want to hire exercise professionals who already possess skills to perform basic job tasks, i.e., safely teaching exercise. To advance the exercise profession and to address the issue of certification programs that no longer require practical examinations, the preparation model established by the health/wellness coaching profession should be considered. See: National Training and Education Standards for Health and Wellness Coaching. Test Your Legal and Risk Management Knowledge Certain legal concepts and risk management strategies were covered in this issue. Test what you learned by answering the following T/F questions. Hint: All of the following are true except one. 1. Personal fitness trainers that have certifications and experience always teach in a safe manner. 2. The court in Gallant stated that waivers for willful and grossly negligent acts are void. 3. It is essential that exercise professionals follow safety guidelines published by professional organizations. 4. It is unlikely that academic programs will be held liable for educational malpractice. 5. Academic and certification preparation programs should require an educational course that focuses on developing and assessing practical teaching skills. Answers to the Test: #1 is False #1 - As demonstrated in the Mellon case.