The Lawyers are Winning

What is up with all the lawsuits these days? Let’s take a look at just a few of the cases that we have seen in the health club industry so far this year. A member finishes playing tennis and as he is leaving to get in his car, he trips and falls on the sidewalk, sprains his wrist and breaks two of his fingers…settlement – $158,000 (not enough lighting on the pathway). A woman breaks her ankle in a step-aerobics class…settlement $27,500 (woman should have been instructed to take a beginner class). A college student “loses it” during a squat exercise and his two buddies who were spotting him were unable to prevent him from blowing out his knees…settlement offered by the insurance company – $25,000; plaintiff wants a half million (allegation of improper supervision). A contractor who was hired to paint a racquetball court at a club in Brooklyn falls off his scaffold and shatters his facial bones…settlement – $985,000 (hey, it’s New York).

Health club equipment manufacturers have improved their products over the years and commercial exercise equipment today is not only safer, it is also highly effective. Flooring companies have developed the very best slip resistant materials money can buy and our professional fitness instructors, for the most part, are providing the safest education in proper exercise technique and nutritional counseling than ever before. For added protection, we require members and guests to sign waivers and virtually every piece of equipment, program offered and supplement sold in a health club comes with a warning label.

At some point our efforts to provide a safe place to work out stops and the member’s “assumption of risk” must take over. We can not hire 1,500 trainers to be with 1,500 members to make certain that they don’t injure themselves or others around them. Members will still drop weights on their feet, inadvertently slip getting out of a shower, lose their balance while jogging on a treadmill. You will still have members who misuse equipment and regardless of your efforts to correct their “form”, they will yank, and clang and groan their way to injury. We all know that accidents will happen. The problem is that more and more of these “accidents” are finding their way into a very unique segment of our society known as litigation. In short, we are being sued at an alarming rate and it is likely to get worse in the years to come.

NOTE: The following reasons as to “why” we have become the “all you can eat buffet” feeding frenzy for the Trial Lawyers Association, are solely the opinions of this author.

  1. BIGGER TARGET: Health clubs are worth more today than they were twenty years ago. You could open a 10,000 square foot gym back in 1980 for around $50,000. Today, to do it right, it will cost you over a million. My friend and client, Mark Steinfield, is opening a new 17,000 square foot gym in New Jersey and it will cost him $2.5 million before he can open the doors. Lawyers love to go after high profile “deep pockets”. Why sue a gym that only has assets of $50,000 when you could go after millions.
  2. OUR IMAGE: I hate to break the news to you folks, but most of society doesn’t like us. Despite IHRSA’s goal to have 100,000,000 people working out by the year 2010, most of our neighbors and fellow taxpayers have never set foot in a gym. For whatever reason, many members of our society view health clubs as a place where only healthy, good-looking, 25-year-olds go to maintain the bodies they already have. If I were a plaintiff attorney, I think it would be very easy to select six out-of-shape individuals for a jury who think those fitness model ads and commercials are offensive.
  3. POOR CUSTOMER SERVICE: To quote, Thom Plummer, “our service sucks”. Those of you who know Thom are aware that subtlety is not one of his strong suits and although this certainly does not apply to all clubs, I agree that it applies to the majority. If you do not agree, just look at your renewal retention. As I was going through my rough draft for this article on an airplane, the gentleman sitting next to me, Bob, noticed what I was writing about and offered his opinion of the health club industry. Bob was “dropped closed” on a three year membership at a club in Los Angeles (I won’t mention their name, but their last ad showed a famous fitness model with boxing gloves on). He works out 3-4 times a week and has been attending religiously for the past 18 months. He has had to shuffle his schedule because there is a 45-minute wait for the use of the cardio equipment between 5 & 7 PM. Instead, he works out at 9:00 PM. He doesn’t even attempt to go on Monday nights anymore. Although he would certainly be considered a regular, he has to show his driver’s license with his membership card EVERY TIME HE COMES TO THE GYM. Since signing his $900 contractual commitment, not one employee has ever paid any attention to him. No one knows his name. His comments to the staff about frayed cables and standing water in the bathroom were characteristically ignored. This guy is upset. The day that the lat pull-down cable breaks and Bob whacks himself in the head, I guarantee his first phone call (even before the paramedics) will be to an attorney. This is only one small example. I’m sure that not all clubs are this bad, but I think we can all agree that we could be doing a much better job developing relationships with our members. Just knowing your member’s names is a HUGE step toward improving customer service. I know you have heard me say this before, friends don’t sue friends.
  4. THE AMERICAN WAY: Despite our industry’s best efforts to provide the safest workout environment possible for our members, we can not begin to counteract the vicious disease that has infected more and more American citizens. The disease, as yet, has no name but we now know it is caused by a serious depletion of personal accountability. This “its not my fault” attitude that has corrupted the very core of our moral fiber has reached such epidemic proportions that many of us no longer even feel its effects. Even the judicial system that was originally designed to protect the rights of its citizens has become a breeding ground of corruption and manipulation. I am not only tired of the plaintiff attorneys who are enjoying a feeding frenzy for every slip and fall, pulled hamstring, and twisted ankle injury in our clubs, but I’m especially frustrated with the insurance companies and juries who let them get away it. We as a people are letting them get away with it. I’ve heard the comment too many times, “that’s what insurance is for”. Insurance companies are not the solution; they are part of the problem. Talk about poor customer service. If any of you club owners have had the pleasure of working with a claims adjuster, you know that most of them could use a crash course in Communication Skills 101. Plaintiff attorneys versus the insurance companies is nothing more than a vicious cycle that erodes accountability and basic fairness. Legitimate claims take too long to settle, and nuisance or fraudulent claims are paid rather than contested. I have friends oversees who look at our judicial system and laugh at us. I hate to rain on anybody’s patriotic parade, but we are not “The Great Society”. We have become an enabling society that caters to crybabies and refuses to stick up for what is right and what makes sense.

So, what can we do reduce the number of these lawsuits? Do we pass legislation that will limit the amount of damages a plaintiff can collect? Do we pass laws that will help strengthen the enforceability of our waivers and make people accountable for their own actions? I doubt it. Let us keep in mind that the members of our executive, judicial and legislative branches of government are primarily attorneys and ex-attorneys. Talk about the foxes watching the hen house. If anything, future legislation will likely open the door for increased litigation activity. Insurance companies will simply have to adjust their premiums to pay the claims. The fact is, we, as a society, are responsible for all of these lawsuits. In order to fix the problem, we have to begin with the basics. The best risk management advice I can offer is simply to practice the Golden Rule. If we, as club owners, lead by example and train our staff to treat all members with respect, get to know them by their first name, help them with their goals, and create a truly FUN environment, the members will be too busy enjoying themselves to file a lawsuit. How hard would it be for your front counter person to smile at Bob when he comes in for his workout and say, “Hey BOB, it’s good to see you. How about a shake or a water with your workout today?” Oh no, now we’re talking about how to increase revenue and support your club’s profit centers. I didn’t mean to get off the subject.