Business Monday

My View: Taking measures to minimize liability in gyms

When you hear the term “CrossFit” you immediately imagine exercises such as burpees, box jumps and deadlifts. CrossFit is no longer merely a trend but a mainstream form of fitness that is here to stay. However, as a former personal trainer and a practicing lawyer, what comes to mind when I hear “CrossFit” is liability. And the challenges CrossFit affiliates face offer lessons for other gyms and similar businesses.

According to an ESPN article, by July 2014, CrossFit — founded in California in 2000 had more than 10,000 affiliates (gyms). By May 2015, Florida had 194 CrossFit affiliated gyms registered in the state; however, only 143 of those gyms were active, according to Sunbiz.org. From a legal standpoint, the rise in the number of CrossFit gyms raises concerns for patrons, and entrepreneurs, regarding an increased risk of liability. For small businesses on a limited budget, this means taking adequate measures to be proactive rather than reactive when it comes to minimizing risk and protecting against liability.

For a CrossFit owner to protect him or herself, it is essential that a waiver and release form be in place and signed by the new CrossFit gym member. The waiver and release form should contain language that protects the owner in the event that the patron is injured during a CrossFit workout. Because a release can be raised as an affirmative defense to a claim for negligence against a CrossFit gym owner, it is one of the safest precautions an owner can take to protect him or herself. The waiver should be unambiguous and broad enough in scope to encompass injuries arising from any significant risks associated with physical training. It should also state that the patron is voluntarily participating in the activity and that the patron is assuming the risk of any injury that may arise from participation.

Another liability facing CrossFit affiliates in Florida is premises liability arising from any invitee injured at the gym by unsafe conditions or foreseeable dangers. In Florida, a business owner must use care to maintain the premises in a reasonably safe condition and owes two basic duties to an invitee: 1.) to use ordinary or reasonable care in keeping the premises in a reasonably safe condition, and 2.) to warn individuals of dangers that are known or should be known to the owner or occupant. Additionally, CrossFit affiliates in Florida owe a duty to protect members and other gym attendees against negligent injury from third parties and foreseeable dangers.

Additional liability concerns come into play when considering the actions of the gym patrons. “CrossFitters” are notorious for throwing barbells at the end of several exercises, such as a clean and jerk. But what happens when someone is injured by weights thrown by another CrossFit patron? Will this be considered a foreseeable injury? In one case in Florida, a gym member dropped free weights suddenly, resulting in a loud noise. This noise caused another gym member to turn suddenly, resulting in injury. The court held that because there was no evidence showing that the gym owner knew or should have known that the other patron posed a risk, or that there was ever a problem with anyone handling free weights, the patron’s harmful conduct was not foreseeable by the gym and the gym owner could not be liable.

In the CrossFit community, throwing weights is almost dogma. Will courts in Florida find that CrossFit owners have a duty to warn their patrons of such a risk? With CrossFit gyms continuing to pop up all over Florida, it won’t be long before the courts provide the answer. In the interim, adequate supervision of staff and patrons, and a waiver and release form, are the best ways to protect against liability.

Michelle K. Suarez is a business law attorney with the Fort Lauderdale office of Kelley Kronenberg. She may be reached at msuarez@kelleykronenberg.com.

If you have a point of view on a business topic you’d like to share, consider writing about it for Business Monday. Pitch your idea to rclarke@MiamiHerald.com. ‘My View’ pieces are published as space allows.

  Comments