Donald Ornelas Jr. is an attorney at Agajanian, McFall, Weiss, Tetreault & Crist LLP, a Los Angeles law firm specializing in defending businesses active in the sports, leisure and recreation industries. Ornelas also is a risk management consultant with Sports Risk Control LLC, which creates customized turnkey risk management programs for health clubs and other sports facilities and organizations nationwide. Ornelas is an active member of the World Waterpark Association, the Roller Skating Association, and the International Amusement and Leisure Defense Association. You can reach him at (323) 993-0198 or at [email protected]. You can also visit the Web site at www.agajanianlaw.com.
As you know, many incidents at health and fitness facilities arise out of equipment failure. Many of these incidents could have been prevented if a regimen of regularly scheduled equipment maintenance had been implemented at the club. Following the suggestions below should get your facility on the right track.
1. Make sure qualified professionals are executing your maintenance plan.The execution of a health and fitness club facility’s regularly scheduled preventative maintenance program usually falls to either an in-house maintenance department or an outside maintenance company that is retained by the facility. Either route can be effective for your club. However, you need to ensure that whomever is performing your equipment maintenance is properly trained and qualified to do so.
If you have an in-house maintenance department, you need to make sure that the individuals therein have been properly certified and trained to perform their duties. Read the manuals that come with the various types of equipment to ascertain whether the manufacturer has recommended any particular course of training or certification. If the manufacturer has done so, mandate that your in-house employees complete the training and/or become certified. Also, make sure that you maintain files documenting the training that your employees complete. This may seem costly and time-consuming, but it will definitely pay off if you are involved in a lawsuit based upon allegations of negligence in maintenance of equipment.
Before retaining an outside maintenance company, research their qualifications and reputation. Ask the company to provide you with proof of training and/or certifications. Inquire as to the company’s litigation history, if any. Insist on receiving information regarding the proposed maintenance regimen and compare it with that of other companies. Make sure that the company is properly licensed by your jurisdiction and that they are familiar with all relevant local, state and federal regulations.
2. Include indemnity provisions in any contracts with privately retained maintenance companies.
You’ve done your research, and now your club has chosen to subcontract its equipment maintenance out to an adequately qualified private vendor. This sort of arrangement will invariably require your club and the maintenance company to enter into a written contract. Before signing any contracts, your club needs to ensure that the contract contains adequate indemnity language. The contract should clearly indicate that the maintenance company will agree to indemnify your club and hold it harmless in connection with any claims and/or lawsuits that are filed against the club involving allegations of negligence equipment maintenance. This language should be contained in a separate paragraph within the contract and entitled appropriately so that an independent reader of the contract clearly understands the terms contained therein.
Adequate indemnity protection will ensure that your club is able to tender the defense of any equipment maintenance-related claims to your maintenance company and will also require them to pay any attorneys’ fees incurred in connection with those sorts of claims and lawsuits. Also, your insurance company may require your facility to include such language in any maintenance contracts.
3. Ensure that your private vendor has adequate insurance coverage.
The indemnity protection in your maintenance contract will be much less effective if your private vendor has inadequate insurance coverage. You should insist that the maintenance company provide proof of commercial general liability insurance coverage, at the very least. Generally, a policy limit of $1 million will be adequate for your purposes. Proof of this coverage can usually be demonstrated by acquiring copies of the policy’s declarations page. This document will set forth the relevant details regarding the policy’s coverage. It should also include the contact information for the insurance carrier and/or the broker, which will allow you to independently verify coverage.
4. Regularly supervise your maintenance team.
Your facility should designate an individual to supervise your maintenance team (whether it be in-house or a private vendor) to ensure that your maintenance program is being properly implemented. This person should establish regular communication with the lead of your maintenance team. This way, your facility will be knowledgeable of not only the type of maintenance that is being conducted upon its machines, but also the frequency of the maintenance work and who is executing the program. This sort of professionalism will give credibility to your organization in litigated cases involving equipment maintenance.
5. Keep dedicated files documenting the maintenance performed upon your fitness equipment.
Establish a filing system dedicated to documenting the maintenance conducted on your equipment. This will ensure that crucial information regarding your equipment maintenance is readily available to your insurance company, investigator and/or attorney if a claim or a lawsuit has been filed.
Establishing an equipment maintenance program should be a priority for your facility. While it can be costly and time-consuming initially, having an effective program will definitely pay off if your club is involved in equipment-related litigation or claims.