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The Legal Aspects: Using Case Law to Understand the Primary Assumption of Risk Defense

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

doi: 10.1249/01.FIT.0000257712.37858.e0

Using Case Law to Understand the Primary Assumption of Risk Defense.

JoAnn M. Eickhoff-Shemek, Ph.D., FACSM, is a professor and coordinator of the Exercise Science program at the University of South Florida in Tampa. Dr. Eickhoff-Shemek's research focuses on legal liability and risk management issues in the health/fitness field. She is currently coauthoring a text entitled Risk Management for Health/Fitness Professionals: Legal Issues and Strategies to be published by Lippincott Williams & Wilkins. Dr. Eickhoff-Shemek is the legal columnist and an associate editor of ACSM's Health & Fitness Journal®, and is ACSM Health/Fitness Director® certified, ACSM Exercise Test TechnologistSM certified, and a Fellow of ACSM.

It is common knowledge that we live in a litigious society. Like many individuals, participants in health/fitness facilities that experience an injury or some other untoward event (e.g., heart attack) often look to blame others for unfortunate things that happen to them. They often will seek recovery (or monetary compensation) for their medical costs, lost wages, pain, and suffering, and so on, by filing a negligence claim or lawsuit against the health/fitness facility and its staff members. It is important for health/fitness facilities to be aware of the defenses (i.e., legally acceptable responses that can be used to refute claims/lawsuits) available to them before claims or lawsuits occur. This article will focus on one of these defenses called primary assumption of risk (PAR) by presenting legal cases where health/fitness facilities used this defense-sometimes successfully, sometimes not.

First, it is necessary to briefly review the major causes of injuries (or untoward events) that have been discussed before in this column, these include 1) inherent risks and 2) negligence (1). Injuries caused by inherent risks are those that occur while participating in physical activities or sports that are inseparable from the activity-they just happen and are no one's fault, for example, falling while participating in a step aerobics class and injuring your ankle, pulling a muscle while lifting weights, or a heart attack while participating in a triathlon. Injuries caused by negligence involve a breach of a legal duty, for example, a participant is injured in a health/fitness facility because the facility did not adhere to certain standards of care (or legal duties), such as providing proper instruction/supervision and conducting regular inspections of the equipment/facility.

Second, it is important to understand the legal doctrine called PAR and how it can protect defendants (e.g., health/fitness facilities) from potential liability. The PAR is a legal theory in which plaintiffs (injured parties) cannot seek recovery for an injury that was caused by inherent risks. For defendants to successfully use this defense, the plaintiff must 1) know, understand, and appreciate the inherent risks, and 2) voluntarily participate in the activity (2) as demonstrated in Rutnik v. Colonie Center Court Club (3). This defense does not apply when the plaintiff does not know, understand, and appreciate the inherent risks as the court concluded in Corrigan v. Musclemakers, Inc. (4). In addition, if the defendant increases the inherent risks of the activity as demonstrated in Santana v. Women's Workout and Weight Loss Centers (5), this defense would not apply. Lastly, the PAR defense will not protect a defendant from liability for injuries caused by negligence on part of the defendant as discussed in Corrigan v. Musclemakers, Inc. (4) and Santana v. Women's Workout and Weight Loss Centers (5). These cases are briefly described next with a focus on the court's reasoning for applying or not applying the PAR defense.



In Rutnik v. Colonie Center Court Club (3), a 47-year-old man collapsed and died from a cardiac arrest while playing in a racquetball tournament. The decedent's estate brought a wrongful death action against the defendants (the Club and tournament sponsor) claiming that they were negligent because they failed to properly carry out certain duties. To refute the wrongful death action, the defendants used the PAR defense, claiming that they did not owe a duty to the decedent because he assumed the risks when he volunteered to participate in the tournament. The appellate court agreed, stating that "relieving an owner or operator of a sporting facility from liability for the inherent risk of engaging in sports is justified when the consenting participant is aware of the risk, has an appreciation of the nature of the risks, and voluntarily assumes the risk" (p. 452). Because the decedent was an experienced racquetball player, who previously participated in similar tournaments, the court indicated that he must have known and appreciated the risk of cardiac arrest while participating in the strenuous sport of racquetball. The court also stated that the defendants were not negligent-they did not breach any of their duties (e.g., emergency procedures were carried out properly). This case demonstrates that experience is a factor that courts will consider to determine if the plaintiff "knows, understands, and appreciates" the inherent risks of a given activity. The court in the next case also considers the experience of the plaintiff when applying the PAR defense, but with a different outcome.

In Corrigan v. Musclemakers, Inc. (4), the plaintiff, a 49-year-old woman, was participating in her first personal training session when the personal trainer placed her on a treadmill giving her little or no instruction on how to use it, then left her unattended. Soon thereafter, she began to drift back on the belt and then tried to walk faster, but was thrown from the machine that resulted in a broken ankle. Before this incident, the plaintiff had never patronized a fitness facility of this type nor had she ever been on a treadmill. The plaintiff filed a negligence action against the defendants to recover for her injuries. The defendants claimed that the plaintiff voluntarily participated in an athletic event and that she was fully aware of the inherent risks, and therefore the PAR defense should apply versus any negligence on their part.



The appellate court, quoting another case, stated that the "doctrine of primary assumption of risk… may be applied in cases where there is an elevated risk of danger typically in sporting and recreational events" (p. 145). However, the court concluded that this doctrine does not apply in this case because the fitness activity undertaken by the plaintiff was not a sporting activity, and because the risks associated with the use of the treadmill to the plaintiff, a novice, were not known, understood, and appreciated by her. The court also felt that the personal trainer failed to ensure that the plaintiff understood how to use the treadmill before using it, which was stated as a guideline in the machine's manual for safe operation. The personal trainer's conduct would be considered negligent. Therefore, the appellate court indicated that a jury needed to determine if the plaintiff's injuries were caused by any breach of duty (negligence) on part of the defendant.

In Santana v. Women's Workout and Weight Loss Centers (5), the plaintiff was participating in a step aerobics class when she fell and fractured her ankle that required surgery to install pins in her leg for immobilization. The plaintiff claimed the defendant (Women's Workout and Weight Loss Centers) was negligent because the activity (step aerobics combined with the use of a dynaband) was dangerous. While performing these simultaneous activities, participants were instructed to look straight forward at their reflections in a mirror versus looking at their feet. The defendant successfully used the PAR defense at trial, that is, the trial court supported and agreed with this defense to defeat the plaintiff's negligence claim. However, the appellate court reversed this decision, indicating that defendants have a duty to not increase the risks to a participant over and above those that are inherent.

An expert witness in Santana v. Women's Workout and Weight Loss Centers, Dr. Peter Francis, stated that the simultaneous exercises (step aerobics and overhead strength exercises using the dynaband) along with the use of a mirror for visual orientation did not meet the standard of care because it created an inherently dangerous situation, meaning that the instructor's use of the combined activities increased the risks over and above those that were inherent. The instructor's conduct would be considered negligent. It is important to note that if this injury would have occurred during a typical step aerobics class, the PAR defense probably would have prevailed because this type of injury is inherent in step aerobics and because the plaintiff had participated in several step aerobics classes at the defendant's facility before her injury.

In its analysis, the Santana v. Women's Workout and Weight Loss Centers court also distinguished sports and exercise programs with regard to its decision that the PAR defense did not protect the defendant from liability in this case. Sports inherently create extreme risks of injuries caused by 1) physical contact between participants or 2) competition aimed at scoring points, racing against time, or accomplishing feats of speed and strength. However, exercise programs, such as the step aerobics class in this case, are designed to enhance health and fitness and therefore should not be designed to create extreme risks of injuries, as the instructor did in this case by combining the two forms of exercise.

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Strengthening the PAR Defense

The PAR defense generally will not apply if the defendant was negligent as demonstrated in Corrigan v. Musclemakers, Inc. and Santana v. Women's Workout and Weight Loss Centers. However, there are many injuries that occur in health/fitness facilities that are caused by inherent risks-not negligence. Therefore, the PAR defense can be very effective in protecting the health/fitness facilities from liability associated with these types of injuries. By implementing the following recommendations, health/fitness facilities can strengthen the PAR defense:

  1. Include an Assumption of Risk section (paragraph that describes the inherent risks of the activity, including minor and major injuries, and even death) in written documents such as waivers, membership agreements, agreements to participate, and informed consents that are signed by participants (1). Note: Although the PAR defense is always available (i.e., it is implied if not in writing), having written evidence that the participant knew, understood, appreciated, and voluntarily assumed the risks strengthens the PAR defense.
  2. Provide adequate instruction/supervision, especially to novices, on how to exercise safely and effectively so they acquire the experience necessary to know, understand, and appreciate the inherent risks of the activities in which they are participating.
  3. Observe and evaluate health/fitness staff members (e.g., personal trainers, group exercise leaders) to help ensure they are instructing safely and effectively and not increasing any inherent risks to participants while they are performing their jobs (6).
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1. Eickhoff-Shemek, J. Distinguishing protective legal documents, ACSM's Health & Fitness Journal ® 5(3):27-29, 2001.
2. Cotten, D.J. Defenses against liability. In Law for Recreation and Sport Managers. 3rd ed. Cotten, D.J., and J.T. Wolohan (Editors), Dubuque, IA: Kendall/Hunt Publishing Company, 2003.
3. Rutnik v. Colonie Center Court Club, Inc., 672 N.Y.S 2d 451 (1998 N.Y. App. Div. LEXIS 4845).
4. Corrigan v. Musclemakers, Inc., 686 N.Y.S2d 143 (1999 N.Y. App. Div. LEXIS 1954).
5. Santana v. Womens' Workout and Weight Loss Centers, Inc. (2001 Cal. App. LEXIS 1186).
6. Eickhoff-Shemek, J., and S. Selde. Evaluating group exercise leader performance: an easy and helpful tool. ACSM's Health & Fitness Journal ® 10(1):20-23, 2006.
© 2007 American College of Sports Medicine