What Is Negligence?

JoAnn Eickhoff-Shemek, Ph.D., FACSM, FAWHP

President and Founder

Fitness Law Academy, LLC

www.fitnesslawacademy.com

Lesson #2

Disclaimer: The “educational” information in this PowerPoint presentation should

not be construed to be the provision of legal advice. For individual legal advice, it is

necessary to obtain legal counsel in the jurisdiction where such appropriate advice

can provided.

• Negligence defined

• Four elements of negligence

• Courts determine “duty”

• The professional standard of care

• Legal liability exposures

• Negligence cases

• Scope of practice

Topics

What is Negligence?

DefinitionNegligence is “failing to do something” that a reasonable,

prudent professional would have done or “doing something”

that a reasonable, prudent professional would not have done,

given the same or similar circumstances (1).

Negligence is “careless” conduct by either

OMISSION or COMMISSION

Failure to Perform Improper Performance

Fault Basis of Tort Liability (1)

Four Elements of Negligence:Plaintiff has the Burden of Proof (1)

Damages – plaintiff seeks monetary (compensatory) damages: Economic (e.g., medical expenses, lost wages) Non-economic (e.g., pain and suffering)

Courts Determine “Duty”

or the Standard of Care

The Duty (or Standard of Care) that Fitness/Wellness Professionals

Owe to the Plaintiff will Likely Be The:

Professional Standard of CareDuty is determined by “professional” practices given the situation, e.g.,

safety standards/guidelines published by professional and independent

organizations and/or expert testimony.

Numerous safety standards/guidelines exist in the U.S. that are published

by various professional and independent organizations.

Examples:

Professional Organizations• ACSM’s Health/Fitness Facility Standards and Guidelines

• ACSM’s Guidelines for Exercise Testing and Prescription (ACSM’s GETP)

Independent Organizations• American Society for Testing and Materials (ASTM) -- Standard Specification

for Motorized Treadmills

• Manufacturers of exercise equipment -- publish Owner’s Manuals for each

piece of equipment

Potential Legal Impact of Published

Safety Standards of Practice

Published Safety Standards of Practice

Introduced in Court via Expert Testimony

Provide Evidence in Determining Duty

Defendant’s Conduct Inconsistent Defendant’s Conduct Consistent

with Standards of Practice with Standards of Practice

(Breach of Duty) (No Breach of Duty)Note: The plaintiff has to prove by the preponderance of the evidence (51% or “more likely than not”) that the breach of duty caused the harm (civil law vs. criminal law where the proof must be “beyond a reasonable doubt” or 100%).

According to van der Smissen (2), the Professional

Standard is measured against the standard of care of a

qualified professional for that situation.

“For that situation” is determined

by the following three factors:

• Nature of the activity – the professional must be aware of the skills and

abilities the participant needs to participate “safely” in the activity

• Type of participants – the professional must be aware of individual

factors of the participant,. e.g., health conditions that impose increased

risks and how to minimize those risks

• Environmental conditions – the professional must be aware of any

conditions, e.g., heat, humidity, slippery floor surfaces, and how to

minimize those risks

Note: Experts witnesses “educate” the court as

to what duty (or standard of care) was given the situation and often refer to these 3 factors

Legal Liability Exposures – 7 Areas

7. Emergency Action Plan

1.Employment Issues

2. Pre-Activity Health

Screening

3. Health/Fitness Assessment & Prescription

4. Instruction & Supervision

5. Exercise Equipment

6. Facility Issues

Legal Liability Exposures: Situations that create the probability of an

injury to occur (e.g., improper instruction and/or supervision, failure to

maintain exercise equipment) or increase the severity of a injury when

one occurs (e.g., failure to carry out proper emergency procedures)

Negligence Cases

Please refer to “U.S. Negligence Lawsuits” – handout

available at www.fitnesslawacademy under Free Resources

The 21 cases cover liability exposures in all 7 areas.

Most negligence cases are settled out of court. For an

example, see the Capati case on page 3 and sometimes a

settlement is made even after a court’s ruling on the

damages like in Barnhard (page 7).

Note the “original” amount of damages in these cases ($320M in Capati

and $49.5M in Barnhard). Liability insurance policies generally do NOT

provide this much coverage, and therefore can be devastating for any

business which may cause them to close their business.

Review how the expert witness testimony in Stelluti and

Santana (page 6) and Xu (page 8) helped to educate the

court as to what the professional standard of care was

for that situation.

Negligence Cases – Cont.

Note how the court in Covenant (page 2) utilized published

standards of practice (ACSM’s GETP) to determine the

standard of care.

Note how almost all of the cases dealt with the inappropriate

conduct (negligent acts – both omission and commission) of

fitness staff members and managers.

The most prevalent legal liability exposure in any fitness

facility is the lack of “competence” of the fitness staff and

managers

They need to first be “qualified” (possess the necessary credentials)

but most importantly from a legal perspective, they MUST BE

COMPETENT – their actions or conduct will be what is judged by

expert witnesses.

Quality education and training of all fitness professionals is absolutely

essential from a risk management perspective

SCOPE OF PRACTICE

Scope of Practice: Professionals must practice within the

boundaries of their education, training, experience, and certification

and/or licensure. The failure to do so can result in civil claims such as negligence (if harm occurs)

as well as criminal charges (violation of a state statute) such as practicing

medicine (or other allied health profession such as dietetics) without a license.

Do not prescribe, diagnose, or treat – only licensed health care professionals can.

Note the potential “scope of practice” issues in the following cases

from the handout: U.S. Negligence Lawsuits:

Rostai (p. 2) – trainer did not have the knowledge and skills to train someone

with cardiac risk factors

Capati (p. 3) – trainer “prescribed” supplements not knowing the lethal

consequences when combined with a prescribed medication

Makris (p. 3) – the trainer “diagnosed” and “treated” the pain of the client

Proffitt (p. 5) – the trainer did not have the knowledge and skills to train a

sedentary individual

Fitness trainers who train clients with medical conditions and risk

factors should possess “advanced” knowledge and skills to do so.

Otherwise they may be training “outside” their scope of practice.

THANK YOU!

To obtain a more in-depth understanding and application

of legal and risk management concepts, register for “Minimizing Legal Liability and Maximizing Fitness Safety” – a self-study CEC/CEU course at:

www.fitnesslawacademy.com

References:

1. Eickhoff-Shemek, JM, Herbert, DL & Connaughton, DP. (2009). Risk Management for

Health/Fitness Professionals: Legal Issues and Strategies. Baltimore, Maryland: Lippincott

Williams & Wilkins.

2. van der Smissen, B. (2007). Elements of Negligence, In: Cotton, DJ & Wolohan, JT. eds.

Law for Recreation and Sport Managers, 4th ed. Dubuque, Iowa: Kendall/Hunt Publishing

Company.

Note: References for the legal cases are listed in the handout: U.S. Negligence Lawsuits.