PART I: OVERVIEW OF THE LAW, LEGAL LIABILITY, AND RISK MANAGEMENT

Chapters 1-4 provide a basic understanding of the law, legal liability and risk management, which is needed prior to moving to Part II in the textbook. 

 

Chapter 1 - U.S. Law and Legal System: This chapter describes “primary” sources of law, the three branches of government, categories of law (e.g., civil law and criminal law), tort law (e.g., intentional torts, negligence, and strict liability), contract law (e.g., types of contracts, four elements of a contract, contracts used in fitness facilities/programs), and an overview of employment law. A special section describes the four essential elements of negligence and defenses to negligence that are legally effective and legally ineffective. It also includes a section on legal research along with a description of the key sections within a “case brief” -- all of the 30 spotlight cases in the textbook are prepared as case briefs.

Chapter 2 - Creating a Safety Culture: Building a Comprehensive Risk Management Plan: This chapter provides a description of exercise-related injuries (e.g., types and causes) and subsequent litigations (e.g., a list of negligence lawsuits and the types of injuries suffered by the plaintiffs). The Baldi-Perry case is described listing the plaintiff’s 26 negligence claims against the personal fitness trainer and 16 negligence claims against the fitness facility. The focus of the chapter is on the four steps (assessment, development, implementation and evaluation) needed to build a comprehensive risk management plan and how to create a safety culture. An Employee Safety Culture Survey is included that can be downloaded from the Fitness Law Academy’s website.

Chapter 3 - Complying with Federal Laws: Honoring Legal Rights: This chapter describes several federal laws applicable to the exercise profession including (a) Discrimination (e.g., Titles II and VII of the Civil Rights Act and the ADA), (b) Privacy and Communications (e.g., HIPPA, FTCA, and state privacy laws), (c) Employee Wage and Hour (e.g., FLSA and EPA), (d) Employee Safety (e.g., OSHA and CLIA), (e) Wellness Products and Devices (e.g., FDCA regarding medical mobile apps and mobile apps), and (f) Intellectual Property (e.g. copyright law). Many risk management strategies and resources are described to help fitness managers and exercise professionals comply with the federal laws. This chapter includes three spotlight cases and four additional cases. The appendix contains a sample Anti-Harassment Policy and sample Authorization for Release of Protected Health Information.

Chapter 4 - Negligence and Common Defenses to Negligence: This chapter defines negligence and explains three primary origins of negligence. Standards of care are described for each of the following: (a) reasonable person, (b) professional -- including factors that courts consider when determining the standard of care of exercise professionals, (c) special relationships, (d) children, and (e) healthcare providers. Standards of care are distinguished from standards of practice (best practices published by professional and independent organizations) as well as how expert witnesses include best practices in their testimony. Two common defenses to negligence are described: (a) primary assumption of risk, and (b) waivers with negligence case descriptions demonstrating how these defenses can be effective or ineffective. Two sample forms are included: an express assumption of risk and a waiver/release of liability. This chapter contains four spotlight cases and 12 additional cases.

 

PART II: LEGAL LIABILITY EXPOSURES AND RISK MANAGEMENT STRATEGIES

Chapters 5-11 describe the many legal duties and risk management responsibilities of fitness managers and exercise professionals. Each chapter contains two major sections (a) assessment of legal liability exposures (e.g., description of applicable laws, case examples, summary of published standards of practice), and (b) development of risk management strategies (e.g., description of risk management strategies that minimize legal liability exposures).

 

Chapter 5 - Hiring Credentialed and Competent Personnel: This chapter describes three types of credentialing (accreditation, licensure, and certification) and explains the varying credentials among exercise professionals. Because most certification programs do not require an assessment of practical skills, the connection between this lack of skills and legal liability is described. Negligence cases involving employer vicarious liability and direct liability are presented including a discussion on criminal background checks, sexual assault, and false marketing/deceptive advertising. Liability issues involving independent contractors, vendors, interns and volunteers are described as well as cases involving general and professional liability insurance. This chapter contains three spotlight cases, four additional cases, and a description of 10 risk management strategies.

Chapter 6 - Pre-Activity Health Screening and Fitness Testing: This chapter describes the types of pre-activity health screening (i.e., self-guided and professionally-guided) and various types of screening questionnaires (e.g., the PASQ and PAR-Q+) as well as the steps involved in carrying out professionally-guided screening. A distinction is made between pre-activity health screening and medical history questionnaires and an explanation is provided as to when each should be used. The types of fitness testing (i.e., health-related fitness testing and clinical exercise testing) are described along with the many safety steps that need to be implemented prior to conducting (and during) health-related fitness testing. The chapter contains two sample forms: (a) refusal to participate in screening, and (b) informed consent for fitness testing. The chapter contains three spotlight cases, three additional cases, and a description of 10 risk management strategies. The PASQ and related forms in the appendix can be downloaded from the Fitness Law Academy’s website.

Chapter 7 - Exercise Prescription and Scope of Practice: This chapter defines exercise prescription as well as the FITT-VP principles that are utilized when establishing an exercise prescription. “Legal” scope of practice and “professional” scope of practice are distinguished along with a description of three scenarios when exercise professionals are practicing outside their scope, resulting in civil claims (e.g., negligence) and criminal charges as demonstrated by several cases. Additional topics include the EIM® credential, liability of professionals for improper referrals, and legal issues related to exercise prescription for prevention versus treatment. A special focus on the scope of practice of exercise professionals with regard to providing nutrition advice is presented by describing several case law examples. Scope of practice is also addressed for health/wellness coaches. The chapter contains three spotlight cases, nine additional cases, and a description of eight risk management strategies.

Chapter 8 - Instruction and Supervision: This chapter is of utmost importance. The failure to provide proper instruction and supervision is considered the most common allegation of negligence. Given the popularity of high intensity exercise programs, a distinction is made between HIT (high intensity training) and HIIT (high intensity interval training) programs. Numerous injures and subsequent litigations have occurred due to HIT or improperly designed HIIT programs. A historical perspective of exertional rhabdomyolysis (ER) injury cases is presented as well as precautions that need to be taken when offering HIIT programs. A description of negligence cases is presented involving each of the following programs: (a) personal fitness training, (b) group exercise, (c) youth exercise, (d) strength and conditioning, (e) clinical exercise, and (f) first responder and military. A special section is provided on exertional heat injury (and ER) cases in strength and conditioning programs along with why these serious, preventable injuries are still occurring. The chapter contains four spotlight cases, 12 additional cases, and a description of eight risk management strategies. Lesson plan and lesson plan evaluation templates are included that can be downloaded from the Fitness Law Academy’s website as well as a sample performance appraisal tool for group exercise leaders provided in the appendix.

Chapter 9 - Exercise Equipment Safety: This chapter describes four major causes of exercise equipment injuries: (a) negligence of exercise professionals, (b) negligence of fitness facility managers, (c) negligence of participants, and (d) fault of manufacturers. A special focus on strength training equipment injuries is presented including: (a) types of injuries and their underlying causes, (b) Valsalva maneuver and heavy resistance training, and (c) case descriptions involving negligent instruction and supervision. Exercise equipment legal liability issues facing facility managers are described such as: (a) following the ADA, (b) proper installation including spacing and signage, (c) cleaning/disinfecting, inspection, and maintenance procedures, (d) when to remove equipment from use, and (e) following published standards of practice. Case examples describing negligence of participants are described and how courts assign comparative fault. Liability of manufacturers for the various types of product defects is explained with reference to legal cases. The chapter contains four spotlight cases, 12 additional cases, and a description of 10 risk management strategies. The appendix provides an excerpt from the User’s Manual of the TechnoGym Skillrun Treadmill that describes spacing, cleaning, and maintenance specifications.

Chapter 10 - Managing Facility Risks: This chapter describes federal laws such as OSHA standards regarding signage and noise exposure and ADA standards such as accessible design including signage and requirements addressing service animals. State laws such as consumer protection laws involving health club memberships and unfair or deceptive practices are presented. Duties toward “invitees” are demonstrated through the description of several cases. Six major topics to cover in the facility orientation are explained from a legal liability/risk management perspective. Additional legal issues and related cases are described involving: (a) facility maintenance and cleaning, (b) supervision of fitness facilities and recommendations for unsupervised and outdoor facilities, (c) technology and data privacy/security including biometric data, (d) facility security, (e) inappropriate behavior of fitness participants, and (f) event organizer and sponsor. A sample Incident Report is provided that can be downloaded from the Fitness Law Academy’s website. The chapter contains three spotlight cases, 17 additional cases, and a description of 10 risk management strategies.

Chapter 11 - Emergency Planning and Response: This chapter summarizes several of OSHA’s General Industry Standards such as: (a) facility design for exit routes, (b) ventilation, and (c) hazardous chemicals as well as OSHA’s Bloodborne Pathogens Standard. State first-aid, AED, and Good Samaritan laws are described including AED statutory requirements in five different states. AED cases involving fitness facilities in four different states are described. A summary of standards/guidelines published by 10 professional organizations regarding emergency response planning is provided. The many components of a fitness facility’s Evacuation Plan (e.g., natural disaster, fire, active shooter) and Medical Emergency Plan (e.g., contingency plans for minor, serious, and life-threatening injuries) are described. This chapter contains three spotlight cases, seven additional cases, and a description of 10 risk management strategies. The appendix provides a sample Facility Injury Report that can be downloaded from the Fitness Law Academy’s website.