From the Desk of Jocelyn Brogan

Outside of work life, I often find myself noticing conditions or activities carried out on properties that have the potential of being the subject matter of a personal injury action.

However, just because I notice the vulnerabilities of occupiers in everyday life, this certainly does not mean that a potential lawsuit equates to a claim with merit.

The gym is a location that I frequently attend during my free time and I cannot help but notice that it is a haven for possible claims. I am passionate about the benefits of exercise but not oblivious to its potential for disaster, specifically when performed haphazardly.

At my gym, the workout of the day regularly consists of a combination of exercises usually programmed to be performed in large sets, under fatigue, and with a time cap.

The possibilities for injuries are endless, specifically when movements are executed poorly and mishaps occur with the equipment.

When reflecting upon the gym that I attend and its exposure to liabilities, I cannot help but compare my experiences to the recent decision of Hosseinkhani v. QK Fitness Inc., 2019 ONSC 70.

The Facts

In Hosseinkhani v. QK Fitness, the plaintiff had been attending a fitness class at QK Fitness approximately bi-weekly for 8 months. The equipment used in the class included two dumbbells and a low step.

Typically, the plaintiff would use the hexagonal dumbbells, although sometimes she would use circular dumbbells.

On the accident date, the plaintiff’s exercise class proceeded in the usual manner with a fitness instructor and approximately 25 members.

The members were instructed to position the dumbbells about 18 inches in front of each member and to the right. No instruction was provided on how the round dumbbells should be placed to prevent them from rolling.

About 20 minutes into the class, the instructor directed the class members to step off of their step to the right. When the plaintiff carried out this movement, she tripped over one or both of the circular dumbbells, which had rolled from their position and into her path of travel.

The plaintiff allegedly sustained a burst fracture of her T12 vertebrae in the accident.

Summary Judgment Motion

The defendant, QK Fitness, brought a summary judgment motion against the plaintiff. QK Fitness argued that it was not negligent because the plaintiff signed an enforceable waiver which excluded its liability, or in the alternative, the plaintiff was the author of her own misfortune.

QK Fitness also argued that the plaintiff made the simple mistake of placing the round dumbbells on their side rather than on their flat end, and that it should be obvious that a round object might roll if placed on its side.

The plaintiff argued that the waiver was unenforceable, mainly relying upon the exclusion of liability clause not having been specifically brought to her attention before signing.

In addition, the plaintiff argued that QK Fitness had a duty to properly instruct her on the safe use of the round dumbbells, which they failed to do.

The Outcome

Justice Charney granted the summary judgment motion and dismissed the plaintiff’s claim.

He found that the waiver was unenforceable, but regardless, QK Fitness was not negligent for failing to warn about an obvious risk.

With respect to the unenforceability of the waiver, Justice Charney advised that no evidence was presented to demonstrate that QK Fitness had taken any extra steps to bring the exclusion of liability clause to the plaintiff’s attention in order to satisfy the requirements under section 5(3) of the Occupiers’ Liability Act.

With respect to the negligence argument, Justice Charney stated that an 8 pound dumbbell is not a complicated exercise machine that may require instruction on proper use and safety.

The risk that a round dumbbell may roll if placed on its side is an obvious risk that an occupier does not have to warn an adult about.

Comparisons

Similar to QK Fitness, I was provided a waiver to sign upon joining the gym. After each clause, there was a space for me to initial.

However, the exclusion of liability clause was not brought to my attention any more than every other clause in the waiver.

Also, upon signing the waiver, no verbal exchange took place with respect to the exclusion of liability clause. For a member with no legal knowledge, I suspect there are strong arguments for the exclusion of liability clause being unenforceable.

Justice Charney described the dumbbell exercise performed at the time of the accident as rudimentary. At the gym I attend, not all but some of the exercises programmed are complex.

For example, the more complex exercises might involve lifting a barbell heavier than bodyweight overhead while squatting, using gymnastic rings for muscle-ups, or turning your body upside down to perform handstand push-ups or handstand walking.

However, whenever the more complex movements are involved, detailed instruction is always provided.

This brings me back to my initial assertion that just because an occupier has vulnerabilities, and just because a person is injured, this does not equate to a claim with merit.

There are risks in every recreational activity. Gyms and other recreational service providers should not have to fear being sued, but they should take adequate steps to inform participants of risks that may not be obvious, and they should supervise and provide instruction on complex activities.