By Doyice Cotten

Personal trainers should recognize the potential for injury in their profession and strive to serve their clients safely and effectively. Gregory Pedersen, the personal trainer in Berisaj v. LTF Club Operations Company, Inc. (2019), was faced with a lawsuit by a client of 17 fitness sessions; the lawsuit alleged 1) negligence, 2) gross negligence, and 3) willful and wanton misconduct.

Plaintiff Victor Berisaj, who had been a client of LTF since 2007, received a back injury in an auto crash in 2015. Following this, he completed physical therapy, and afterward contracted with Pedersen for personal training. The trial court ruled that the LTF waiver and the personal training waiver protected LTF and Pedersen from liability for ordinary negligence. The trial court also ruled that there was no genuine issue of material fact regarding the gross negligence and w/w claims. This case is the appeal by Berisaj.

The  Michigan appellate court clarified that “A question of fact exists when reasonable minds could differ as to the conclusions to be drawn from the evidence.”  The nonmoving party (Berisaj, in this case) may not rest upon its pleading, but must set forth specific facts showing that there is a genuine issue for trial. The court emphasized that an “issue of material fact exists when the record, giving the benefit of reasonable doubt to the opposing party, leaves open an issue upon which reasonable minds might differ.”

Plaintiff’s Argument

Plaintiff argues that this court should reverse the trial court’s grant of summary disposition on his claims for gross negligence and willful and wanton misconduct because “… a reasonable juror could conclude that defendants’ conduct constituted gross negligence and/or willful and wanton misconduct.”

What is Gross Negligence and Willful and Wanton Misconduct in Michigan?

The court stated that “Gross negligence occurs where a party’s conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury results.” The court expanded by stating that “A plaintiff cannot satisfy a gross negligence claim by merely stating that a defendant could have taken additional precautions.” It added that gross negligence occurs where “if an objective observer watched the actor, he could conclude, reasonably, that the actor simply did not care about the safety or welfare of those in his charge.” The court then defined willful and wanton misconduct as not simply a higher degree of carelessness, but rather it occurs “only if the conduct alleged shows an intent to harm or, if not that, such indifference to whether harm will result as to be the equivalent of a willingness that it does.”

The Evaluation of the Court

The court went into detail listing reasons the actions of the personal trainer were not grossly negligent nor willful and wanton misconduct.  This discussion could be looked upon by personal trainers in training as a How-To-Do-It Guide.

• Accepting as true plaintiff’s claim that neither Pedersen nor his supervisor performed a formal physical assessment of plaintiff before beginning the personal training sessions at Lifetime, plaintiff still has not shown a reckless disregard for his safety. Plaintiff testified that, at his very first training session, Pedersen had plaintiff stretch while lying on the floor, and had plaintiff put a foam roller under his back and a ball between his knees to squeeze. This testimony is consistent with Pedersen’s testimony that, in order to assess plaintiff’s capabilities, he put plaintiff in different positions and watched him move and gauged his strength and fitness level before they began training. [This, in effect, was a physical assessment of plaintiff.]
• The record is clear that plaintiff presented himself to defendants at the Lifetime personal training area and they could clearly see he was overweight and had poor posture.
• Plaintiff testified that he told Pedersen about his back injury and that his goal was to do a little bit of cardio and to lose some weight. [Plaintiff established his goals.)
• Plaintiff told defendant that he did not want to do any strenuous exercises because he did not want to injure his back.
• Plaintiff testified that Pedersen focused on stretching, improving plaintiff’s posture, and the importance of warming up before working out.
• Plaintiff testified that Pedersen repeatedly told him to use the foam roller on his back to release his back muscles even at home.
• Plaintiff did not contradict Pedersen’s testimony that he created a low intensity fitness regimen for plaintiff with modified exercises that considered the condition of plaintiff’s back.
• Both plaintiff and Pedersen described the exercises as including stretching, working with wobble balls, cardio on the elliptical machine and treadmill, and modified weight lifting either on the incline bench in which plaintiff’s back was fully supported or on a flat bench in which plaintiff was lying on his stomach lifting from the floor so as not to put pressure on his back.
• Plaintiff testified that he did complain to Pedersen about the intensity of the cardio, that some of the exercises were difficult, and that Pedersen was pushing him too hard.
• Plaintiff stated that Pedersen would respond by encouraging him and saying things like, “yeah, you’ll do it, just go ahead and try it, you’ll make it….” [Which the court pointed out “… is, in fact, exactly the job of a personal trainer—to boost a client’s confidence and inspire him to continue to improve his health.”]
• Plaintiff chose to participate in 17 training sessions and stated that he was trying to motivate himself by telling himself that he could do it, to try harder, and made himself go to the training sessions.
• Plaintiff testified that he never refused to do an exercise Pedersen told him to do. This was the case even though plaintiff was the only person who could feel the condition of his back, his pain level, and knew his own tolerance.
• Choosing whether to participate in the training sessions and do particular exercises was within plaintiff’s sole discretion.
• Plaintiff acknowledged that he knew he could stop doing any exercise that caused him pain, leave at any time, or simply not go to the gym.

Beyond the 17 workouts, the court pointed to other acts by Pedersen that showed concern for his client:

• Plaintiff stated that Pedersen spoke to him about his eating habits, they discussed healthy eating, and over the course of the sessions they continued to discuss what plaintiff was eating during the day.
• The content of text messages exchanged over the course of the training relationship between the parties shows that Pedersen was invested in plaintiff’s well-being, and concerned about plaintiff’s back pain.
• Text messages indicate that Pedersen checked on plaintiff and asked him how his back was doing repeatedly throughout their relationship.
• Plaintiff sometimes stated that his back was hurting, sometimes indicated that it was not so bad or was easing up, and ultimately indicated that he could not continue because his back was “very very bad” and he could barely move.
• Pedersen also recommended stretching, foam roller work, heat, and posture correction. Pedersen tried to be encouraging and offered a free stretching session, and more suggestions like yoga, massage, analgesic cream, a back belt, and rest.
• Pedersen sent links to plaintiff with information about spine health. Pedersen also advised plaintiff to see a chiropractor or get physical therapy.
• Pedersen continued to check on plaintiff and asked plaintiff to keep him updated.

The court summarized by pointing out that

• Our careful review of the record reveals that Pedersen kept plaintiff’s limitations in mind and never forced plaintiff to perform any unsafe or dangerous exercises that would amount to conduct so reckless as to demonstrate a substantial lack of concern for whether injury resulted.
• The record reveals that Pedersen was invested in improving plaintiff’s health and fitness, including the condition of his back both in and out of the gym. Plaintiff also failed to demonstrate that Pedersen showed an intent to harm him or exhibited an indifference to whether harm would result during the course of their personal training relationship.
• Moreover, “[s]imply alleging that an actor could have done more is insufficient under Michigan law, because with the benefit of hindsight, a claim can always be made that extra precautions could have influenced the result.” Saying one should have taken extra precautions does not even constitute ordinary negligence, much less recklessness.
• Plaintiff produced no evidence that any actions of Pedersen amounted to a lack of concern for plaintiff’s safety; his conduct was far removed from a substantial lack of concern.

Ruling

The appellate court affirmed the trial court’s summary disposition of plaintiff’s gross negligence and willful and wanton misconduct claims because the evidence does not raise a factual question on whether defendants disregarded plaintiff’s safety, showed intent to harm plaintiff, or showed an indifference as to whether harm would result from the personal training activities.

Risk Management Take-Away

A personal trainer cannot prevent a client from filing a lawsuit, but the trainer can do many things to improve his or her chances of winning the suit. This trainer obviously cared for his client’s safety and took many steps to benefit the client and to avoid injury. Most clients would have appreciated the effort made by Pedersen. It is hard to know what Berisaj was thinking. A beginning trainer should study Pedersen’s performance – it may not be perfect, but it was awfully good (and caring). Experienced trainers should look at it and ask “Am I doing this much for my clients?” Going that extra mile paid off in this case.

Notice, the waiver was just mentioned in passing – but it protected both the club and trainer from liability for ordinary negligence.

Photo Credit: Thanks to Istolethetv via Flickr.