Risk Management for Health/Fitness Facilities

1. FIT FOR KIDS
Risk Management for Health/Fitness Facilities
by Betul Sekendiz, B.A., M.Sc., Ph.D.
Childhood obesity is a global health epidemic that has been
affecting developed and developing countries as a result of a
combination of various lifestyle, social, environmental, food
industry, and technological factors that influence the poor dietary
and sedentary behaviors of children. Children with obesity are at
higher risk for having other chronic health conditions and dis-
eases that can impact their quality of life, such as asthma, sleep
apnea, musculoskeletal problems, type 2 diabetes, and cardio-
vascular disease (1). In the United States, 1 in 3 children between
the ages of 6 and 19 are obese or overweight (2). Similarly, in
Australia, 1 in 4 children between the ages of 2 and 17 are obese
or overweight (3). Leading world health organizations recom-
mend children get a mix of aerobic and muscle-strengthening
moderate- to vigorous-intensity physical activities 60 minutes
each day (4,5). Therefore, health/fitness facilities present great
opportunities to help children get sufficient exercise and develop
lifelong healthy habits in enjoyable and safe environments.
In 2017, ACSM’s survey of the worldwide fitness trends re-
ported specialized exercise programs for children to be among
the promising trends in the fitness industry that need to be lever-
aged by industry professionals to help with the fight against
childhood obesity (6). In Australia, results of a survey showed
75% of the registered health/fitness facilities in New South
Wales offered physical activity programs for children or adoles-
cent children (7). In 2013–2014, results of a nationwide survey
showed that 15- to 17-year-olds who had the highest participa-
tion rate in sport and physical recreation (74%) participated in
fitness and gym activities the most (8). With government policies
and health organizations promoting physical activity as a pre-
ventative measure against childhood obesity (9), it is likely that
these figures will only increase as more children are brought into
health/fitness facilities by their parents to meet their needs for
regular exercise and physical activity.
LEGAL AND SAFETY RISK MANAGEMENT ISSUES
Before developing any new program, health/fitness facilities
should update their existing risk management program by
conducting a risk assessment to identify and control any new
hazards in the internal and external environment of the facility
that could expose the participants to health and safety risks. This
is particularly important for children’s programs because chil-
dren have increased and unique vulnerabilities due to their
physiological and biological differences, and therefore risks to
children from environmental hazards are more severe and dif-
ferent from those for adults (10). For example, young athletes
are at a higher risk of exertional heat illnesses and mortality from
exertional heatstroke than adults because of various intrinsic
contributing factors including higher core body temperature,
production of more heat during physical activity, lower rate of
sweating, and slower rate of acclimatization (11). ACSM’s
Health/Fitness Facility Standards and Guidelines (12) has specific stan-
dards under the “health/fitness facility operating practices”
chapter that require facilities offering youth services or programs
to provide appropriate supervision. More specifically, such
facilities must:
a. obtain basic medical information about the children from
the parents,
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2. b. have each parent or guardian complete a waiver or re-
lease form providing it is not prohibited by relevant state
laws,
c. have an appropriate sign-in and sign-out system to en-
sure only authorized individuals drop off or pick up
children,
d. have written policies regarding critical children’s issues
such as age limits, restroom practices, food, and parental
presence on-site that are agreed to by the parents, and
e. ensure all staff and independent contractors working with
children undergo both a criminal background check and
a child abuse clearance, where available.
In Australia, Fitness New South Wales (NSW) and the Chil-
dren’s Hospital Institute of Sports Medicine have jointly pub-
lished the “Kids in Gyms” guidelines for the fitness industry to
guide children participating in health/fitness facilities or
gyms in a safe and supervised environment (7). In addition
to risk management guidelines such as preexercise screening,
staff/child supervision ratio (1:25), and qualifications of fitness
personnel (i.e., having completed a Certificate IV in Fitness spe-
cialization module in Exercise for Children and Young Adoles-
cents), these guidelines recommend that health/fitness facilities
have “parents or guardians sign centre membership contracts
entered into by children or young adolescents under the age of
18 years. However, centres may, at their discretion, sign a mem-
bership contract directly with an adolescent between 16 and
18 years old.”
USE OF PARENTAL WAIVERS
Many health/fitness facilities incorporate waivers or exclusion
clauses (commonly known as an exculpatory clause in the
United States) into their membership contracts for minor
(children and adolescents aged up to 18 years) participants
as well as adult clients as a line of defense against claims of
negligence or breach of contract. These waivers or exclusion
clauses aim to preclude the signers from holding the facility
and/or their employees responsible for injuries that occur
during an ensuing activity (13). According to a Queensland-
based study, all fitness facilities surveyed required all of their
participants to sign a waiver form (13). Of these facilities,
96.1% required a parental waiver form if the participant
was a minor (14). However, many fitness facilities (23%) were
“not sure” if legal advice was obtained while developing their
waiver forms (13). A waiver may be effective to preclude a suc-
cessful negligence lawsuit filed against a health/fitness service
provider providing it is (a) part of the contract, (b) appropriately
and clearly worded, (c) reasonably communicated to potential
and renewing members, and (d) not prohibited under constitu-
tional or statutory provisions, or prior judicial decision (13).
However, whether health/fitness service providers can success-
fully exempt themselves from liability for negligently caused
harm to children by use of waivers signed by their parents or
guardians is unclear.
Many health/fitness facilities incorporate waivers
or exclusion clauses into their membership
contracts for minor (children and adolescent
children up to 18 years old) participants as well as
adult clients as a line of defence against
negligence claims. …However, whether
health/fitness service providers can successfully
exempt themselves from liability for negligently
caused harm to children by use of waivers signed
by their parents or guardians is unclear.
Higher duties of care exist for certain professionals and be-
tween people in certain business or contractual relationships, as
in the provision of health and fitness services. Under principles
of common law, minors (or people with mental disabilities) are al-
ways protected because they are accepted to be vulnerable, and
the laws are lineated toward their protection. Minors are not ex-
pected to act as a “reasonable person” would, or to have the ca-
pacity to understand terms of a contract to make an informed
decision to enter into a contractual relationship. Therefore, prin-
ciples of common law aim to protect them from themselves and
exploitation by others by ways of not binding them to a contract
until they reach the age of maturity (18 years) (15). For this rea-
son, a waiver cannot be purported to prevent a minor from taking
legal action for personal injury after reaching the age of majority.
Under principles of common law, minors (or people
with mental disabilities) are always protected as
they are accepted to be vulnerable and the laws
are lineated towards their protection. Minors are
not expected to act as a “reasonable person”
would, or to have the capacity to understand terms
of a contract to make an informed decision to
enter into a contractual relationship. …For this
reason, a waiver cannot be purported to prevent a
minor from taking legal action for personal injury
after reaching the age of majority.
ENFORCEABILITY OF PARENTAL WAIVERS
In Smith v. YMCA of Benton Harbor/St. Joseph (16) a 10-year-old girl
was injured when another child jumped into a swimming pool
on top of her. The victim’s parents had signed a waiver that re-
leased the pool owner from liability for all injury to the minor.
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3. Eight years after the accident, the victim filed suit against the
YMCA. Derived from the general rule in Michigan that a par-
ent has no authority to waive, release, or compromise claims
by or against his or her child, the Michigan Court of Appeal ruled
that the waiver was void and did not protect the YMCA from li-
ability. However, laws or court rulings in this area constantly
change, and one rule does not apply to all jurisdictions. In the
United States, 15 states have so far either passed legislation
(Alaska, Arizona, Colorado, and Indiana), or there have been
court rulings (California, Connecticut, Delaware, Florida,
Massachusetts, Maryland, Minnesota, North Carolina, North
Dakota, Ohio, and Wisconsin) that supported the enforceability
of parental waivers for ordinary negligence (17). For example, in
Zivich v. Mentor Soccer Club (18) the Ohio Supreme Court enforced
a parental waiver suggesting that it was not against public policy
to provide recreational opportunities for youth as it eventually
benefited the public as a whole. The court also highlighted that
the decision made by the parents to take the risks fell within the
right to contract.
In Australia, the Australian Consumer Law (set out in Sched-
ule 2 of the Competition and Consumer Act 2010 (CCA) previously
known as the Trade Practices Act 1974) gave the recreational ser-
vice providers the right to contract out of their implied duty of
care by use of exclusion clauses or waivers as part of the tort re-
forms in the Australian law. Therefore, there have been criti-
cisms that the increased use of waivers by recreational service
providers can create the illusion on the parents or the guardians
of the minors that the parental waivers that they sign are valid
and therefore be dissuaded from bringing legal action for inju-
ries caused by a negligent service provider (15). Furthermore, in-
dustry guidelines such as the “Kids in Gyms” (7) may further
encourage health/fitness facilities to make use of parental waivers
or sign waivers directly with a person aged between 16 and
18 years, although such contracts would be void under the prin-
ciples of contract law that purport not to bind a person younger
than the age of (maturity) 18 to a contract.
Section 29 of the ACL prohibits a person, in trade or com-
merce, in connection with the supply or possible supply of goods
or services, from making various false or misleading statements
concerning the existence, exclusion, or effect of any condition,
warranty, guarantee, right, or remedy. In this regard, health/
fitness facility managers must be aware that use of parental waivers
or waivers signed by adolescent children between the ages of 16
and 18 years also can be considered as a false and misleading
representation of their business by way of giving the minors
the illusion that their right to claim damages for injuries that
may result from the proposed activity does not exist (15).
An analysis of case law in Australia also showed that the validity
of exclusion clauses can depend on the intent of use of health/
fitness services by the plaintiff when courts determine whether such
activities can be defined as recreational activity under the Act (13).
Competition and Consumer Act 2010 Section 139A (2) defines rec-
reational services as (a) a sporting activity or a similar leisure time pur-
suit or (b) any other activity that: (i) involves a significant degree of
physical exertion or physical risk and (ii) is undertaken for the pur-
poses of recreation, enjoyment, or leisure. In Kovacevic v. Holland
Park Holdings Pty. Ltd. (19), the Queensland District Court con-
tented that the services offered in the contractual agreement of
the gym operator were not recreational services because the
plaintiff had essentially undertaken the exercise to promote health
and well-being, and therefore the waiver was not enforceable as a
valid defense. Hence, health/fitness facility operators should aim
to implement best risk management practices to satisfy their duty
of care for the health and safety of children participating in their
programs to improve their physical fitness and health that can
help to minimize the risk of legal liability in the first place.
Children have increased and unique
vulnerabilities due to their physiological
differences, and therefore risks to children from
environmental hazards are more severe and
different from those for adults. …Hence,
health/fitness facility operators should aim to
implement best risk management practices to
protect the safety and health of children rather
than trying to bind them to a contract in an
effort to avoid negligence claims after the injury
and harm is caused.
CONCLUSIONS
Health/fitness facilities present invaluable opportunities to help
children get the necessary amount and types of exercise to achieve
health benefits and develop healthy habits that they can carry into
adulthood. However, children are accepted to lack the cognitive
maturity to avoid danger and may exhibit unreasonable risk taking
behaviors in health/fitness facilities. This increases adults’ respon-
sibility to prevent accidents when children are present. Therefore,
health/fitness service providers should act with greater care to-
ward children than they would toward another adult. When
health/fitness facilities are offering their services to children,
there are some key risk management practices that they should
implement as part of a comprehensive risk management program.
RISK MANAGEMENT STRATEGIES:
• Have clearly written policies and guidelines in place that
define the requirements (e.g., supervision, age limits, food,
restroom practices) for children to be allowed in the health/
fitness facility. Facilities should inform parents/guardians of
these policies and require that parents/guardians sign a form
that acknowledges that they have received, understood,
and agree to abide by the policies.
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4. • Have clearly written and visible safety warning signs dis-
played in all training zones and on exercise equipment
that children in certain age groups are not allowed to use
or certain conditions for use.
• Ensure that all children are given appropriately designed
exercise programs (e.g., resistance band or body weight exer-
cises such as sit-ups, push-ups, lunges, and squats) according
to their physiological and biomechanical needs after com-
pleting an appropriate preparticipation screening tool that
can adequately assess health risks specific to their age group.
• Emphasize that all children are initially taught and master
appropriate exercise technique before advancing training,
resistance, and/or intensity.
• Ensure the preparticipation screening tool of a child is
completed together with the parent/guardian and in-
cludes emergency contact details and authorization for
emergency medical care.
• Develop and implement a constant supervision policy by
qualified fitness professionals in all training zones of the fa-
cility to identify and prevent risks of injuries and adverse
health outcomes as a result of using wrong exercise tech-
nique or lifting heavy weights.
• Develop and implement regular inspection schedules by
fitness staff in all areas of the facility to identify, report,
and take preventative action to minimize or eliminate expo-
sure to hazards that can cause adverse health or injury risks.
• Develop and implement systems to ensure a criminal
background check (working with children check) has been
performed for any employee or independent contractor
who is in a position to supervise the activities of children
or perform other duties while they are in the same place
as the children in the facility.
• Have systems in place to regularly monitor and review the
implementation of the risk management policies, proce-
dures, and practices to identify any gaps and make neces-
sary amendments to ensure all risks are effectively minimized
at all times (e.g., regular staff meetings, regular revision of
risk registers, regular revision of programs, and regular in-
spection of fitness equipment, facilities, and gym floor).
• Ensure expert legal advice is obtained in the construction
and implementation of all contractual agreements includ-
ing parental waiver or release forms.
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Disclosure: The author declares no conflict of interest and does not have any
financial disclosures.
Betul Sekendiz, Ph.D., is a lecturer in Exercise and
Sport Management at Central Queensland University
in Australia, where her research focuses on risk manage-
ment in fitness, exercise, and sport settings.
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36 ACSM’s Health & Fitness Journal®
May/June 2018
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