Risky Business: Children in Fitness Facilities

Fitness professionals know that the obesity epidemic among children in this country and other developing nations is just getting worse. The good news is that more and more parents are recognizing the dangers of their kids being overweight and are encouraging them to become more active. Consequently, the number of children who regularly attend classes and personal training sessions in fitness facilities is also on the rise.

Some facilities advertise themselves as “family” clubs, encouraging adult members to bring in their children and teenagers. Others boast that they are “kid-friendly,” with programs specially tailored for younger clients.

But few fitness program managers may realize the legal consequences of providing physical training for children. This article examines the risks inherent when children are in the fitness environment and the corresponding legal issues that must be understood and appreciated by any club that caters to kids.

In the eyes of the law, children are scrutinized differently from adults. Whereas adults are held to an objective, “reasonable (i.e., average) person” standard of care in the legal system, children are not held to this same objective standard. Instead, the current standard of care for children is the standard appropriate for
a “reasonable person of like age, intelligence, and experience under like circumstances” (American Law Institute 1979a).

So what does this mumbo jumbo mean in the real world? If a child is mentally impaired, has a learning disability,
is developmentally immature or is simply less intelligent than other children his or her age, then that child would be held to the same standard of care as children with a similar level of intelligence.

Furthermore, strict chronological age in and of itself does not define the standard of care when it comes to kids. For example, if a 6-year-old autistic boy got hurt on the premises, in legal terms he would be compared to other 6-year-olds with the same mental capacity or condition.

Children of a certain age are also legally distinguished from minors. An adolescent over the age of 16 is legally considered a “minor,” not a “child” (Glannon 2000). The aforementioned standard (of comparing children of like age and mental/physical capacity) applies only to children of “tender years” and is seldom used for anyone over the age of 16. Unfortunately, “tender years” remains undefined.

Moreover, in a court of law, “children” below the age of 4 do not have the capacity to be negligent, whether intentionally or nonintentionally (Glannon 2000). Put simply, that means any child under 4 years of age who was injured in a fitness center could not be considered to have appreciated any risk of harm. The fitness facility would therefore be held liable for the injury. For children over the age of 4, the imputed standard would be determined on a case-by-case basis.

As a fitness manager, you must anticipate that children could wander off into areas of your facility that are unsafe. Kids are naturally drawn toward objects and situations that are new and “attractive.” Make no mistake about it: Your fitness center is filled with equipment that poses a real risk of harm to children. Inadvertently, as a result of their “attraction” to new things, children may unknowingly trespass on unsafe parts of your club. The legal doctrine of attractive nuisance is directed at the child trespasser.

The general rule for attractive nuisance is that if a condition or situation on your premises attracts children, and that condition poses a reasonable danger, then you have a duty to warn of the risk and take reasonable steps to protect children’s safety (Eickhoff-Shemek 2002). The rationale for this doctrine is based on several observations.

First, children are less able to appreciate latent dangers posed by strange conditions. Additionally, children trespass more frequently than adults, making threats to their safety foreseeable. Finally, courts tend to be rather sympathetic toward injured children. Given those observations, you can see how being overprotective is critical for risk management in your facility.

The threat of an attractive-nuisance lawsuit against a fitness facility tends to be most great when it comes to heavy pieces of fitness equipment that are inherently unsafe for children; any kid who wanders off is likely to be drawn to these objects of attraction. Since you cannot remove the equipment each time a child is on-site, what can you do to reduce your club’s liability? You can warn parents and staff of the potential trespass and hire competent employees so that children are adequately supervised and not given any opportunities to go exploring on their own. Under the attractive-nuisance doctrine, your facility would probably be found liable for any injuries, because a court would assume that your staff was capable of providing adequate supervision.

There are three key requirements for an attractive-nuisance lawsuit (American Law Institute 1979b). First, you must reasonably expect to know that your facility and/or conditions within it are likely to be attractive to a child who is trespassing. Second, you must have reason to know that the facility and/or its conditions pose an unreasonable risk of serious injury (i.e., danger) or even death to the trespassing child (fitness machines do, indeed, pose such a threat). Third, the child, because of his or her age, must either not have discovered the conditions or not have been able to appreciate and realize their danger. Given that the first two requirements are met automatically by any club, it is the third that calls for further evaluation and discussion here.

Certain characteristics must be considered when evaluating a child’s appreciation (or ignorance) of a danger.

First is the issue of age. The current standard is that a child must be so young that he or she does not appreciate or recognize the potential danger on the premises (Glannon 2000). While some courts suggest a cutoff age of 12 years, this is open to legal interpretation. For example, drowning in a pool is a familiar risk that a young child—even one under 5 or 6 years of age—would be expected to understand. However, a live electrical wire lying on the ground poses a more obscure risk that a child well over 12 years of age may not recognize (Glannon 2000). This legal standard is sprinkled with subjective elements, in that the particular experience and background of each child must be considered, in order to determine if he or she should have recognized the risk.

The second issue involves what is known as “natural” versus “artificial” conditions. Generally, the policy for attractive-nuisance litigation applies only to artificial conditions on your property (Glannon 2000). Artificial conditions are dangerous conditions that result from some act by the property/facility owner, such as construction, open machinery or business operations. In the case of natural conditions, such as lakes, rivers, streams, caves, trees or rocks, the doctrine of attractive nuisance becomes more problematic. The doctrine may apply if the child could not recognize the danger of those natural attractions (Glannon 2000). Usually, however, liability is denied because most kids—even the very young—should appreciate the potential natural danger.

In the real world, it is more likely that the dangers presented to children in fitness facilities will be artificial. But it is important to realize that outdoor activities and field trips could introduce natural hazards to young clients. Whether these could lead to legal liability rests primarily on the particular age and mental sophistication of the child in question.

The point to remember with attractive nuisance is that you do not have to make your club “childproof.” However, you are obligated to inspect the premises for potential dangers, provided that children are regularly invited to your facility. You must take reasonable steps to prevent injury. A warning will usually be sufficient.

The ultimate reasonable step you can take to prevent injury among children who visit your facility is to provide adequate supervision. While there is no concrete legal definition for adequate supervision, inadequate supervision could constitute negligence in a court of law.

Negligence is your failure to do (or to avoid doing) what a reasonable, prudent person would have done under the same circumstances. With regard to the supervision of children, what would a reasonable person do? While this depends on individual circumstances, there are some general guidelines you should follow.

ACSM’s Health/Fitness Facility Standards and Guidelines provides a primary resource in this area. Standard number 5 states that “a facility that offers youth services or programs must provide appropriate supervision” and delineates several obligations regarding youth safety (Peterson & Tharrett 1997). Among the requirements are that the facility must

• obtain medical histories for all children;

• have its employees check all children entering and exiting the premises;

• require that parents or guardians remain on the premises when their children are in a childcare area;

• provide children with toys or equipment that meet federal, state and local regulations;

• ensure that all entrances and exits to youth areas are unobstructed and clearly marked; and

• supervise all children at all times.

Because the needs of kids are very different from those of your adult clients, it can be difficult and demanding to interpret what constitutes a proper level of “appropriateness.” That’s why program managers and upper management should be overly protective where children are involved, in order to minimize the risk of legal liability.

Overprotection includes how you screen and hire employees who will work with youth populations. The key element is safety. Take the time to perform a criminal background check on each employee who will come into contact with children at your club. Background investigations typically check records in the Department of Justice and the Federal Bureau of Investigation (Napolitano 1998). There is no excuse for you to unknowingly hire a convicted pedophile or child abuser. Hiring such an individual could constitute negligence on your part. Additionally, require references from all prospective employees, and follow up on those references! Make the phone calls and ask the important questions. Again, the key is to be overprotective. By being zealous in this manner, you greatly reduce your fitness facility’s risk of legal liability.