With more than one third of U.S. adults being classified as obese[1], and childhood obesity doubling in children and quadrupling in adolescents[2], it is no wonder the fitness world has seen a dramatic increase in fitness facilities. Not only have the number and type of gyms skyrocketed, facilities that cater to children have popped up all over the United States. Kid gyms, gymnastic centers, trampoline parks and rock climbing gyms are just a few examples of facilities that have joined the ‘get healthy’ revolution.
The good news is that more and more parents have begun to realize that their children, and possibly themselves, are overweight and have begun to encourage the family to become more active and join some type of fitness gym. However, few fitness facilities realize the legal consequences of providing fitness for children, and that they may be very different from those of adults.
Many fitness facilities believe that because they have a signed liability form they will be not be held liable if a child or an adult is injured at their facility. However, this is not always the case, especially with children and minors. For example, in the eyes of the law children and adults are scrutinized differently. Adults are held to an objective, “reasonable person” standard. In other words, would a reasonable (average) person put in the same situation act as the adult in question acted?
Because liability waivers are contracts designed to protect a facility from ordinary negligence, such as broken equipment or bad advice from a trainer, in most circumstances they protect the facility against lawsuits from adults. This is because an adult has the capacity to enter into a facility contract and accept the possible consequences that go along with training at the facility. However, if an adult is injured at a fitness facility there are still ways that they may be able to file a lawsuit against the facility in order to collect damages for their injuries.
An adult may argue that, although they signed the waiver, they did not understand it and the staff was unable to explain the waiver. In cases such as this, it may be because the waiver is too vague or confusing and therefore may not be a valid contract.
Additionally, liability waivers cannot require adult participants to waive their rights against gross negligence or willful acts. Gross negligence means that there was a complete disregard for the safety of customers. This usually occurs when there is a failure to correct a problem that has already been reported and known by the facility. An example of this is a failure to repair a piece of fitness equipment after the problem had been reported.
A willful act is an act by a person that is deliberate and voluntary. An example of this would be a staff member that is belaying at a rock climbing gym and intentionally allows the climber to fall from the wall to the ground without properly securing the rope.
Liability waivers for children, however, are not as ironclad as those for adults. Fitness facilities must navigate through liability issues such as the law’s standard in judging a child’s understanding of safety risks, the child’s age and ability to sign a contract, parents co-signing a liability form, permission slips and attractive nuisance.
Children are currently held to a legal standard appropriate for a “reasonable person of like age, intelligence, and experience under the circumstances.”[3] This means that if the child has a mental disability, a learning impairment, is simply less intelligent than children their age, or is developmentally immature, that child will be held to the same standard of care as children with a similar level of intelligence. Therefore, if a child who has a mental disability is injured, and has a signed liability form on their behalf, the facility may be found liable if they have not taken the child’s standard of intelligence into consideration when supervising.
Additionally, if a child (usually considered under the age of 16), or a minor (considered 16 or 17), comes to a fitness facility and signs the liability waiver it will not be enforceable. This is because children and minors under the age of 18 are not legally able to sign a contract and therefore would not be bound by the waiver. This leaves the facility liable for all negligent acts regarding minors and leaves them open to a lawsuit brought either by the minors parents or by the minor when they turn 18. Moreover, in a court of law, children under the age of 4 do not have the capacity to be negligent;[4] therefore, the fitness facility would be liable for their injuries.
Some fitness facilities have tried to circumvent liability issues of a minor by having the minor’s parent co-sign the liability waiver along with the minor. Reasoning that the parent would be signing away the rights of the minor and promising that neither the parent nor the minor will file a lawsuit against the facility. This concept, however, is usually not recognized by the courts.
An example of this is a case in Michigan where a 10-year-old girl was injured when another child jumped into a swimming pool on top of her at the local YMCA.[5] The mother agreed not to sue, however, when the girl turned 18 she filed a lawsuit against the YMCA.[6] The court ruled that the parent “had no authority, merely by virtue of being a parent, to waive, release or compromise claims by or against the parent’s child.”[7] In other words, the mother did not have the legal authority to sign away the child’s rights, and the YMCA was still liable for the negligent act. Most states have followed suit, with the excpetion of California, Florida, Massachusetts, North Dakota, Ohio and Wisconsin who have upheld waivers signed by at least one parent for a minor.[8]
Fitness facilities should also realize that not all liability waivers are the same. For example, an agreement to participate form, which tells the minor of potential harms and risks of using the facility, does not by itself prevent the facility from being liable. A school permission slip, which serves as an informational document, also does not prevent liability of a fitness facility. In this case, the school and the fitness facility may be held liable for the minor’s injuries.
Another legal hurdle that fitness facilities must overcome is the legal doctrine of attractive nuisance. A lawsuit may be brought for injuries that resulted from an attractive nuisance if a condition on your premises attracts trespassing children, the condition imposes reasonable danger, and the child because of their age was unable to appreciate the danger.[9] If a fitness facility has condition that may attract children they would then have a duty to warn of the risk and take reasonable steps to protect the children’s safety.[10] The threat of an attractive nuisance lawsuit against a fitness facility is usually most great when it comes to heavy pieces of equipment that are inherently unsafe for children and a child wanders off attracted by these machines. If the wandering child suffers and injury due to the dangerous condition, the fitness facility would then generally be held liable for the injury. However, the facility may protect themselves by having informed supervision and warning the child or the parent of the dangerous condition.
Although opening a fitness facility may seem to be overflowing with possible liability issues, it may still be a great business decision. If owners take the proper precautions such as: having a legally enforceable liability waiver, obtaining medical histories for all children, having proper supervision at all times, hiring employees that have had a proper background check and training, following appropriate safety guidelines and obtaining gym insurance, they may avoid liability lawsuits and provide a platform for children and adults lead healthy and happy lives.
[1] Center for Disease Control and Prevention, http://www.cdc.gov/healthyschools/obesity/facts.htm.
[2] Id.
[3] Sean Riley, Risky Business: Children in Fitness Facilities, http://www.ideafit.com/fitness-library/risky-business-children-fitness-facilities-0.
[4] Id.
[5] Eric Eilerman and Peter Titlebaum, Recreation Management Ideas and Solutions for Recreation, Sports and Fitness Facilities, http://www.recmanagement.com/feature_print.php?fid=200908gc01.
[6] Id.
[7] Id.
[8] Id.
[9] Sean Riley, Risky Business: Children in Fitness Facilities, http://www.ideafit.com/fitness-library/risky-business-children-fitness-facilities-0.
[10] Id.