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“The Timorous May Stay At Home”


Who says fitness is a sport? WHO does, that’s who. BY GARY PITTS


• The Merriam-Webster dictionary WHO


(the World Health Organization) defines


“sport” in the following words: Sport is often mistakenly used as


a synonym for physical activity, but this is not the case. Sport has been de- fined as all forms of physical activity, which, through casual or organized


defines “sport” as “a source of diversion or recreation.” • In 1999, the California Court of


Appeal held: “ … it appears that an activity falls within the meaning of “sport” if the activity is done for enjoy- ment or thrill, requires physical exer- cise as well as elements of skill, and involves a challenge containing poten- tial risk of injury.” Why is this definition important to


Canadian personal trainers and fitness facility owners and operators? Since 1929, American courts have


lumped together the legal rules for recreational activities, amusement rides, games, and all sports – especially and including fitness. The courts have applied the Latin


Gary Pitts


participation, aim at expressing or im- proving physical fitness and mental well-being, forming social relation- ships or obtaining results in competi- tion at all levels. There appears to be no universally


agreed definition of “sport.” • It commenced to be used in the


mid-15th century to denote a “pleasant pastime.”


legal maxim “volenti non fit injuria” – translated as “He who consents cannot receive injury” or, in short, “volenti.” In other words, sport participants and fit- ness club exercisers must voluntarily assume all risks of injury inherent in all sports and recreational activities. Why have the American courts


done this? Two reasons: 1) They wish to stop


the flood of sports injury lawsuits; and 2) They don’t want to negatively im- pact the public’s participation in vigor- ous physical activity. One 1929 case saw a vigorous


young man break his kneecap when he took a ride on a ride at Coney Island in Brooklyn, New York City. He sued the ride operators claiming damages for negligence. The judge dismissed


“...sport participants and fitness club exercisers must voluntarily assume all risks of injury inherent in all sports and recreational activities.”


46 Fitness Business Canada November/December 2013


his action using the terms, “recre- ational activities,” “game” and “sport” interchangeably. He held that all sports, such as fenc-


ing, horseback riding, skating and amusement rides were all dangerous recreational activities. He applied the “volenti” principle –


meaning that all sports and recreation- al participants assume the risk of in- jury. If people weren’t happy to assume the risks of injury during an amuse- ment ride, a recreational activity, sport or other dangerous fun activity, the judge said, “The timorous must stay at home!” What are the legal take-home mes-


sages from the above? 1. In the U.S., all sports participants


and recreational exercisers need to un- derstand that they assume all risks for injuries sustained when they partici- pate in sports or fitness club activities. 2. American Courts have applied


this principle, now known as the PAR (Primary Assumption of Risk) principle, in the sports/fitness in- jury domain. (This legal principle is ever-growing in all facets of human physical activities.) 3. In the U.S., the new standard of


care for personal trainers and fitness club owners is the standard of “reck- lessness.” This means that American personal trainers will not be liable for injuries sustained by their clients un- less the former have been reckless or have intentionally injured their clients. (In Canada and Australia, the standard of care for personal trainers has been established as the “reasonably prudent personal trainer.”) 4. This standard of care synergizes


with the fact that waivers are recog- nized in almost all common law parts of North America. FBC


Gary W. Pitts is a sports and fitness lawyer and author of “The Personal Trainer’s Legal Bible.” Contact him at gary.pitts@rogers.com.


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