Qu: I joined a new gym two years ago, when I met with their “top” personal trainer, Corey. I advised Corey before the session that I had previously hurt my back doing zumba and an orthopedist said I have a herniated disc. Corey then created my specialized program of cardiovascular exercises, stretching, meditation and weight-lifting. As instructed, I used Corey’s program. However, while performing the “cardio warm up” followed by “intense sculpting” with weights, I felt a tremendous, sharp pain to my lower back, which I never before felt in my life. The next day, I went for physical therapy, followed soon thereafter by an MRI of my lower back, and then visits to a pain management doctor. The doctor said that I had two herniated discs in my lower spine and then provided me with a series of cortisone steroid injections. He also said that Corey’s program was not appropriate for someone with a questionably herniated disc. Now, I still have pain, and I am told that surgery remains an option. But here is my legal problem: When I signed up at the gym, I signed a 2-page waiver of liability. I never had any idea it would relate to this type of situation. Two lawyers that I spoke to, one a friend in real estate, the other in personal injury, said that by signing the waiver, I effectively signed away my rights for suing the trainer or for recovering for my injury. Each said that I made the personal choice to sign it and to participate in the program. Plus, I tried to talk to him, but Corey is nowhere to be found.
With all this pain and aggravation, did I really “sign my life away”?
The Lawyer Answers: I cannot be more blunt: As quickly as possible, get to a truly proficient, experienced & knowledgeable personal injury lawyer. The waiver is likely worthless! Once the three year statute of limitations will expire, your opportunity for legal recourse may expire. Based on the stated facts, there are a number of legal hurdles to overcome, but the short-shrift you got from the two lawyers was wrong. For the purpose of this column, I will highlight three significant issues you raise.
First of all, many waivers similar to the one that you signed, under various circumstances, will be found by a Court of law to be non-binding, null or void. Often such waivers violate the “public policy” against requiring innocent people, such as yourself, to “sign away your lives.”
Under the laws of the State of New York, there is a body of statutes known as the General Obligations Law. Pursuant to Section 5-326, which may very well apply to the waiver which you signed, the law deems certain waivers to be “void as against public policy and wholly unenforceable.”[1] In particular, the section applies to “the owner or operator of any pool, gymnasium, place of amusement or recreation, or similar establishment” that requires such a waiver. Further, the section specifically refers to acts by “employees” and the “negligence” of those employees. While I am providing a few quotes of a much broader law, you can see that the waiver you signed may very well be “void as against public policy and wholly unenforceable.” This law has been used to void waivers in numerous scenarios, including those involving a fitness club such as the one you describe,[2] ski resorts,[3] football leagues,[4] scuba diving,[5] country club memberships,[6] and others. Each situation depends on the particular waiver, the kind of participation, and the relevant facts, all of which should be carefully considered on a case by case basis. While there is no assurance that your waiver will be voided under the law, it obviously deserves a proper level of scrutiny to make a meaningful determination.
The lawyers who you spoke to were correct that you had the choice not to go to the gym. However, that should not act as a complete bar to your claim. Those lawyers were likely referring to the “assumption of risk” doctrine. That is a commonly raised defense by insurance company lawyers and usually requires that the defendant demonstrate that the injured person voluntarily and knowingly engaged risks inherent to an activity. In other words, an injured person who voluntarily participated in recreational or athletic activities is deemed to have consented to the normal, foreseeable and expected risks inherent in those activities. On the flip side, an the injured party did not consent to the negligent or abnormal, etc., risks in the activities. This “flip side” holds particularly true if you had a proper basis to rely on your trainer’s opinion and if your trainer’s opinion was misplaced and unreasonably heightened your risks for participation at the club.[7]
Moreover, the application of the doctrine of assumption of risk is generally a question of fact to be resolved by a jury, and your facts suggest that a jury could find that you are a victim of Corey’s negligence.[8] While that might sound intimidating, it should not. As you might already know, the vast majority of personal injury lawsuits are resolved prior to trial by settlement. Nevertheless, the strategy of every proficient, experienced and knowledgeable personal injury lawyer includes preparing every step of the litigation process in a way that helps the theoretical jury find in your favor. By doing so, your lawyer is adding potential value to your case.
I am not exactly sure what you mean when you mention that Corey is “nowhere to be found.” If you mean that a process server will have trouble finding and serving Corey with a Summons & Complaint, well every proficient, experienced and knowledgeable personal injury lawyer has investigators or investigative tools at his or her disposal to try to locate such people. Nevertheless, it sounds like you should have a viable lawsuit against the gym. In this regard, it should be that Corey’s negligence will be imputed to the club under the “respondeat superior” doctrine.[9] That is a Latin phrase which is long accepted in the legal lexicon; it is also known as the "Master-Servant Rule.” Under the doctrine, an employer is responsible for the actions of employees performed within the course of their employment. In your case, your lawyer would claim that Corey advised you improperly within the scope of his employment. You should expect that the gym would try to defend itself by contending that the trainer was an independent contractor rather than an employee or that his advice to you exceeded the scope of his employment. Determination of this issue would, at least, require an analysis of the extent of the club’s power to control the manner in which Corey performed the job.
[1] NY CLS Gen Oblig § 5-326
[2] Guerra v Howard Beach Fitness Ctr., Inc., 934 N.Y.S.2d 34.
[3] Rogowicki v. Troser Management, 623 N.Y.S.2d 47.
[4] Williams v. City of Albany, 271 A.D.2d 855, 706 N.Y.S.2d 240.
[5] Baschuk v. Diver's Way Scuba, 618 N.Y.S.2d 428.
[6] Leftow v. Kutsher's Country Club Corp., 705 N.Y.S.2d 380.
[7] Myers v. Friends of Shenendehowa, 819 N.Y.S.2d 143; Layden v Plante, 2012 NY Slip Op 9126.
[8] Id.
[9] Rackowski v. Realty USA, 920 N.Y.S.2d 435.