ACE Personal Trainer
Manual, 4th edition
Chapter 17:
Legal Guidelines and
Professional Responsibilities
1
Business Structure
 The size and scope of the business—both in the short- and
long-term—will be important factors in the initial selection of
the business entity.
 The business can be altered if conditions warrant.
– However, legal issues arising at a time when one structure was utilized
cannot simply be mitigated by switching to a different structure.
 Typically, personal-training businesses operate under one of
the following structures:
– Sole proprietorship
– Partnership
– Corporation
Personal Trainers as Independent Contractors
 A majority of trainers work with clients at an established fitness
center.
– The relationship between the center and the trainer needs to be clearly defined.
 Personal trainers who work with clients at fitness centers typically do
not provide their own equipment.
 A personal trainer who brings clients to a fitness center is operating
in a different environment than one who trains existing gym
members.
 A personal trainer who is an independent contractor should be able
to:
– Choose when and where to work
– Charge variable fees for different situations
– Begin working without extensive guidance
– Maintain autonomy in training decisions
Contracts
 Contracts are the best method to ensure that all aspects
of a relationship are properly established.
 The following elements are necessary to create a
binding contract:
– An offer and acceptance with a mutual agreement of terms
– Consideration (an exchange of valuable items, such as money
for services)
– Legality (acceptable form under the law)
– Ability of the parties to enter into a contract with respect to legal
age and mental capacity
Written Contracts versus Oral Contracts
 Some personal trainers may feel that written contracts
are unnecessary.
– In the case of scheduling clients, that is often the standard
practice.
 A potential misunderstanding may result in problems.
– Any oral contract is subject to misinterpretation by the involved
parties.
 In the event of an oral contract dispute, conflicting stories
may be settled in a courtroom without sufficient evidence
to support the trainer’s account of what transpired.
Legal Responsibilities
 The personal trainer should prepare for each training
session with safety as the first priority.
– This provides a better experience for the client and increases the
likelihood that the client will continue to utilize the trainer’s
services.
 An inspection of facilities and equipment and a review of
the protocols regarding supervision and instruction
should be regularly performed.
Facilities
 Personal trainers have an obligation to ensure that the facilities used
are free from unreasonable hazards.
 At the very least, the physical environment should be inspected
each day prior to beginning any training session.
 The inspection should consider the following issues:
– Trainers should ensure that floor surfaces will cushion the feet, knees, and legs
from excessive stress.
– There should be sufficient free space available to protect the client from other
patrons and from hurting him- or herself on equipment.
– Functional lighting must be sufficient for chosen exercises.
– There must be functional heating and air conditioning systems.
– Proximity to drinking fountains and bathrooms is important for some clients.
Use of Public Spaces
 In some jurisdictions it is illegal to train clients on public beaches,
parks, or trails.
– It is the trainer’s responsibility to know the local laws prior to using these areas.
 Once a “legal” outdoor area has been selected for a training
session, the trainer should understand the potential dangers of the
area.
– Weather
– Potential acts of God
 It is the trainer’s responsibility to
ensure that the activities will not pose
a significant risk for clients.
Equipment
 All equipment should meet the highest safety and design standards
and should be purchased from a reputable manufacturer.
 Equipment must be regularly inspected and properly maintained.
 Protocol for broken equipment
– Once something is deemed unsafe, the personal trainer should immediately
remove the equipment from the training area.
– If quick removal is not feasible, the equipment should be disabled to prevent
further use until repaired.
– “Do not use” signs easily fall off and unsuspecting patrons may be injured when
trying to use the broken equipment.
 Manufacturers typically provide maintenance schedules for
equipment.
Discussion
 You own a fitness center. A male client, approximately
24 years of age, sues your fitness center for negligence
because he claims that one of the barbells caused his
injury.
 His claim: While he was performing a shoulder press
with the 25-lb barbells, one of the barbells came loose
and fell on his right shoulder during the lift. Although the
client reported the incident to the manager on duty, he
decided to sue your facility for causing muscle and nerve
damage to his right shoulder.
Negligence
 The legal claim that a person
failed to act as a reasonable
and prudent person should,
thereby resulting in injury to
another person.
Negligence
 Four factors must exist for negligence to be proven:
– Presence of a duty (such as providing supervision of
a class)
– A breach of the legal duty of care (failure to act as a
reasonable and prudent person would under similar
circumstances)
– Proximate cause of the injury (the action or failure to
act caused the subsequent injury)
– Substantial nature of the injuries or harm (the extent
of the injuries)
Negligence
DUTY
Examples of Duties:
• Proper Instruction
• Access to Medical Care
• Safe Facilities
• Appropriate Supervision
• Teach safety procedures
Negligence
DUTY
Example:
The facilities are dangerous.
As an employee or personal trainer, you owe a duty
to provide safe facilities.
If you instruct in dangerous facilities
and someone is hurt, thereby
you may be liable for negligence.
Negligence
DUTY
Your supervisor may also owe a
duty to provide safe facilities.
So if you teach in dangerous facilities
and someone is hurt thereby,
you may be liable for negligence but
your supervisor may also be liable.
You may BOTH be liable.
Negligence
BREACH
Breach =
Failure to meet the
standard of care
Negligence
BREACH
The standard changes based
on things such as:
• Participant’s age, preparation
• Dangerousness of activity, etc.
How good do I have to be?
Negligence
BREACH
How is the standard determined?
•Expert testimony
•Professional standards
(AAHPERD, NATA, Red Cross, ACE, ACSM)
•Reasonable, prudent,
up-to-date would.
Negligence
BREACH
If I follow professional
guidelines, am I safe from
negligence claims?
Negligence
BREACH
Not necessarily. I must still act as
would a reasonable, prudent, up-todate would.
If the guidelines are bad, following
them may be bad.
Negligence
Cause
The breach must be the
cause of the harm.
Not all breaches cause
harm.
Negligence
Cause
I don’t have a lesson plan.
A student is hurt because
of dangerous equipment.
Am I negligent because of
the lack of a lesson plan?
Negligence
Cause
No. The lack of the
lesson plan was NOT the CAUSE.
If I am negligent, the cause would
be the unsafe equipment.
Negligence
Harm
In most jurisdictions, the harm must
be physical.
Solely psychological or
emotional harm is generally not
sufficient for a claim of negligence.
Negligence
Harm
I breached a duty but the student
was only scared, not injured.
Can I be found negligent because
the student was scared?
Negligence
Harm
No.
Physical harm must exist in order
to find negligence.
Negligence
Liability for negligence may
exist even if you are not
actively involved.
Negligence
• Agent/principal
• Respondent Superior
Negligence
• Agent/principal
Examples:
Coach - athlete
teacher - student teacher
Negligence
• Respondent Superior
Example:
Boss - Employee
Negligence
• Respondent Superior
Risk management techniques:
•Pre employment screening
•Pre service training
•Supervision
•Good curriculum
•In-service training
•Workshops, conventions
•Open minded evaluations of
adverse incidents
Negligence
• Liability from
3rd party violence.
Example:
Your athlete has history of
violence or uncontrolled anger.
The game is intense and the player
is getting angry.
Should you take the player
out of the game?
Negligence
Liability from
3rd party violence.
If you leave the player in the game
and the player’s anger causes
injury to someone else, you
could be liable.
You may have breached your duty to
protect from the foreseeable risk
of unreasonable harm.
Negligence
 Legal defenses against negligence:
Assumption of risk: Knowing, understanding, and appreciating the
risk associated with a chosen activity.
Contributory negligence: Behavior by the plaintiff that contributed to
the injury.
Comparative negligence: Apportions (divides) damages between a
negligent plaintiff and a negligent defendant who each played a
part in the injury.
Negligence
 Avoiding negligence:
 General supervision: action required whenever activity is
occurring by those for whom the person is responsible.
 Specific supervision: mandated action required whenever a
higher level of risk is associated with the activity of the persons
for whom the adult is responsible.
 Actual notice: refers to the removal of known hazards by a
responsible person
 Constructive notice: Refers to hazards that a responsible person
should have noticed and eliminated.
Negligence
 Several other steps to avoiding negligence:
 Provide proper and clear instructions.
 Ensure each participant’s fitness, conditioning, and ability levels
are appropriate to the expectations.
 Enforce safety rules and regulations.
 When injuries occur, the supervisor must respond appropriately.
 Do not use inadequate, ill-fitting, or defective equipment.
 Only qualified individuals should supervise physical activity.
Negligence
 To understand the extent of your obligations to clients
served, consider these example questions:
– What are your obligations to a person who will be participating in
a cardiovascular fitness test that involves a submaximal treadmill
run?
– As a personal trainer, what are your legal responsibilities for the
welfare of your client who is participating in a strength training
program?
Agreement to Participate
 A signed acknowledgement
of a participant’s knowing,
understanding, and
appreciating the risks
associated with an activity.
Note: This is not a waiver form.
Informed Consent
 An informed consent form can be utilized to demonstrate that a
client acknowledges that he or she has been specifically
informed about the risks associated with the activity in which he
or she is about to engage.
– Client gives consent to participate in an exercise program and/or have
something done to him or her by the personal trainer (e.g., fitness
assessments), and therefore can differ slightly from an agreement to
participate
– Primarily intended to communicate the potential benefits and dangers of
the program or exercise testing procedures to the client
– Should detail the possible discomforts involved and potential alternatives
 The informed consent form, combined with oral communication,
prepares the client for the positive and negative effects of
certain types of exercise.
Vicarious Liability and Waivers

Vicarious liability (also known as respondeat superior) means that
employers are responsible for the employment actions of their employees.

If an employee is negligent while working within the normal scope of
employment, it is likely that the injured party will sue not only the employee,
but also the employer or employers.

The use of waivers is critical in personal training, as a properly worded
exculpatory clause bars the injured from potential recovery.

There are some potential issues that every personal trainer must investigate
with an attorney prior to crafting a waiver.

–
State-specific validity
–
Types of activities and potential risks of injury that would be barred from recovery
Waivers typically do not protect the personal trainer from injuries directly
caused by gross negligence.
Tort Law
 Tort: a French word for wrong; a private or civil wrong or
injury, other than breach of contract, suffered due to
another person's conduct.
 Tort law: a part of the civil law that provides remedies for
acts that cause harm; therefore, injured parties may file
civil lawsuits in an attempt to seek compensation for their
injuries.
Tort Law
 Tort damages are monetary damages
that are sought from the offending
party.
 They are intended to compensate the
injured party for the injury suffered.
Tort law imposes a duty on
persons and business agents
not to intentionally or
negligently injure others in
society.
Categories of Torts
Intentional Torts
Unintentional Torts
(Negligence)
Strict Liability Torts
Types of Tort
 Intentional torts: injuries caused by intentional acts.
 Negligence: harm caused by careless acts or failure to
perform a legal duty.
 Strict liability: requires the person causing the harm to
compensate the injured party without regard to fault.
Discussion
 You own a fitness center. A male client, approximately
24 years of age, sues your fitness center for negligence
because he claims that one of the barbells caused his
injury.
 His claim: While he was performing a shoulder press
with the 25-lb barbells, one of the barbells came loose
and fell on his right shoulder during the lift. Although the
client reported the incident to the manager on duty, he
decided to sue your facility for causing muscle and nerve
damage to his right shoulder.
Cole v South Tweed Heads Rugby
League Football Club Ltd [2004] HCA 29
Facts:

Ms. Cole attended a champagne breakfast at the South
Tweed Heads Rugby League Football Club.

She spent the day drinking at the Club.

The Club stopped serving Ms Cole after 12:30 pm, but her
friends provided her with drinks for the rest of the afternoon.

At 5:30 pm the Club’s manager asked Ms. Cole to leave the
premises after she was seen behaving indecently with 2
men.
Cole v South Tweed Heads Rugby
League Football Club Ltd

The manager offered Ms. Cole a taxi home, but Ms. Cole
rejected the offer in blunt and abusive terms.

She then left the Club with the 2 men, who assured the
manager that they would take care of her.

At 6:20 pm Ms. Cole was struck by a car near the Club
and was seriously injured.

She was found to have a blood alcohol concentration of
0.238%.
Who was responsible for Ms. Cole’s injuries? Why?
Who was responsible for Ms. Cole’s
injuries?
Issues before the court:

Did the Club owe a duty to take reasonable care:

to monitor and moderate the amount of alcohol served to
Ms. Cole?

that Ms. Cole travelled safely away from the Club’s
premises?

Does a general duty of care exist to protect persons from harm
caused by intoxication following a deliberate and voluntary
decision on their part to drink to excess?

Did the car driver owe Ms. Cole a duty of care?

Did Ms. Cole in any way contribute to her own injuries?