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VOLENTI NON FIT INJURIA: The Timorous May Stay at Home PDF Imprimer Envoyer
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Vendredi, 26 Mai 2017 08:03
sport 2By Gary W. Pitts (Ottawa, Ontario)*

A Short History Lesson:

The expression “Volenti non fit Injuria” (“He who consents cannot receive injury”), originated from Roman Law more than 2000 years ago. In classical Latin, “v’s” are pronounced as “w’s” so that Julius Caesar actually said “ Weni, Widi, Wici” (I came, I saw, I conquered).

Fast forward to the 1850’s, the concept of volenti (i.e. “volens” for short) started to evolve. In 1878, Francis Wharton’s “A Treatise on the Law of Negligence” described the assumption of risk doctrine as a general principle that a party cannot recover for injury he incurs in risks, themselves legitimate, to which he intelligently submits himself.

The voluntary assumption of risk principle was espoused by Mr. Justice Benjamin Cardozo in the famous Flopper case, a decision rendered by the New York Court of Appeals in 1929. Judge Cardozo dismissed James Murphy’s injury claim as the latter broke his knee on an amusement ride (a moving belt). Judge Cardozo told the “vigorous young man” that if he wanted to live the life of a “cloistered cleric” or to do “meditation”...Plaintiff Murphy...the “timorous may stay at home”.

In the 1970’s, voluntary assumption of risk became known as “primary assumption of risk.” Fast forward to the 1990’s, the primary assumption of risk principle (i.e. PAR) became firmly entrenched as the legal standard applicable in all sports injury cases. This principle has been consistently applied to all injury claims stemming from recreational, sports, gym activities, personal trainer/ coach and fitness injuries, and more generally, all risky activities. In legal terms, fitness has been recognized as a sport for more than two decades.

In the Fitness Industry, special populations are reputed to be clients with serious physical limitations, e.g. individuals with a handicap, young (pubescent children), very old (geriatrics), pregnant women, new mothers, athletic/sports people, obese people, injured people, drug users and others.

Are there any special populations recognized for legal purposes? No.

The term “special pops” is a marketing word invented by the Fitness Industry. However, there are no American legal judgments that use the expression “special populations”. Categories of special populations are not recognized by law; only by the Fitness Industry.

Why is this? Several reasons:

• There exists no legal obligation or legal duty to “screen” any clients – old, young, male, female, or transgender, sick or healthy or any combination thereof;
• Legally, there exists no obligation to perform healthcare screening, cardiovascular risk assessment, injury potential assessment, fitness evaluation or healthcare questionnaire of any kind;
• Courts do not even require the use of a PAR-Q/ or similar fitness questionnaires. There is no American law that specifically governs the Fitness Industry and/or gyms/ and/or personal trainers.
• On a side note, in Israel, it appears that the Physical Fitness Law requires a medical clearance prior to participation in physical activity in the gym. But it appears also that the allopathic medical community does not have written recommendations as to what type of examinations a client should undergo. The “recommendations” appear to be to complete the PAR-Q questionnaire with no further medical examinations. Unfortunately, the medical community knows “squat” about squat, nor does the medical community knows anything about nutrition, exercise or how to become healthy;
• The law imposes a legal duty upon a fitness client to identify his own physical limitations and to learn about the fitness/sports activity before engaging in it for the first time;
• There is no legal requirement for gym owners and/or personal trainers to perform any fitness evaluation or healthcare screening or any pre-activity requirements whatsoever.

The take-home message:

Personal Trainers: you do not have a legal duty to “screen” your clients. Your duty is only not to internationally injure your client. You are subjected to the legal standard of care of “recklessness”.

Here is where the concept of “special populations” enters the legal picture. As part of the legal standard of care, which applies to all clients, personal trainers have a legal duty not to “unreasonably increase” or not to “unreasonably augment” the inherent risks of exercise, which are part of all exercise. The Courts have interpreted the assumption of risk principle very broadly. In effect, personal trainers have a negative duty, i.e. not to unreasonably increase risks that are part of all exercise. But this duty applies to all populations, and not just to “special populations”.

Here’s an example:

The highest California Appellate Court recently decided that a trainer/ coach was not liable for the encouragement provided to a 14 year-old diver to dive in a shallow pool resulting in the latter injuring his neck. On the other hand, if you prescribe a frail geriatric with poor mobility heavy squats to do, this act may engender the liability of the personal trainer.

Waivers are recognized by almost every jurisdiction in North America as the best risk management tool for to protect gyms and personal trainers from pesky personal injury lawsuits claiming negligence. There are even several states that recognize waivers covering gross negligence. Most states recognize parental waivers, but in those states which may or may not do, you are recommended to use “Informed Consents” (IF’s) and “Permission Slips” in addition to waivers when it comes to training and/or providing coaching/physical activities to minors. Proper protective legal documentation will protect gyms and personal trainers from almost all lawsuits.

The concept of “special populations” might even be looked at as an example of the legal principle of “de minimis non curat lex” (the law is not concerned with small or petty things).

In sum, the law does not acknowledge or legally recognize special legal obligations and/or special duties owed by trainers, coaches and/or gyms towards special populations.

Personal trainers, coaches and gym owners have only a moral duty towards special populations. This duty is really just a moral duty not to cause harm or be reckless.

My best legal risk management advice is: think with your heart. You will never go wrong; in the gym, in Court or in the game of life.

*Gary W. Pitts is a Sports & Fitness Lawyer.

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