What kind of workout can one expect on their first visit to a CrossFit box (gym)? The workout will usually consist of a 500-meter row, 40 air squats, 30 sit-ups, 20 pushups and 10 pull-ups. This “baseline” workout is usually used to assess the new client’s initial fitness level. An Affiliate owner would never suspect that this workout would induce Rhabdomyolysis (Rhabdo) or even a lawsuit. However, in September 2011, P3 CrossFit, in Houston, Texas experienced just that.
Rhabdomyolysis, is a serious syndrome that results from the death of muscle fibers and release of their contents into the bloodstream. This can lead to renal kidney failure. In other words, you pushed way too hard during a workout and broke down too much muscle resulting in your body poisoning itself. That is exactly what happened to a new client at P3 CrossFit while doing the “baseline” workout.
So, how did this result in a lawsuit, didn’t the newbie sign a waiver? Yes, of course he signed a waiver and that waiver aided in the case. However, even with a waiver a CrossFit box could still be liable. The injured plaintiff must claim gross negligence in order to prevail over a waiver. Most states will not enforce a waiver promising not to sue over gross negligence.
However, unlike good old fashion negligence, gross negligence is a higher standard to overcome. Negligence occurs when a person or business disregards ordinary standards of care and as a result of this breach of duty, someone is injured. On the other hand, gross negligence is an amplification of this behavior and it goes beyond carelessness to include reckless, unreasonable or willful misconduct by a person. It is behavior that shocks the conscience.
CrossFit Inc. began to see a rise in these types of cases in 2008. Even while marathons routinely kill runners due to Rhabdo, CrossFit was becoming the scapegoat of the syndrome. A seminal case was the Mimms case. The jury awarded $300,000 to the plaintiff. This loss, and other settlements raised concerns and prompted CrossFit Inc. to create a Risk Retention Group (RRG). RRG functions as an Affiliates and trainer owned self-insurance mechanism.
With the implementation of the RRG, P3 CrossFit was better equipped to take the case to trial as opposed to settle. In fact, P3 CrossFit recently won their battle on April 6th. CrossFit Inc. supplied the gym with experts to testify on the thoroughness of Level 1 training and helped build a strategy to show that the trainers of P3 CrossFit were not reckless, willful or unreasonable. The trainer was conscientious, recalled what he had been taught in Level I and in subsequent readings on the subject in the CrossFit Journal. He also kept copies of the waiver that he had all new clients sign. Waivers are a sign of awareness and even if a waiver gets lost, CrossFit Inc. recommends having a procedure for handling new clients that everyone knows and follows. If you can establish a well known procedure or routine practice it can be used as an exception to a hearsay rule in court and work as a backup to your lost waiver.
CrossFit Inc. needed this win as much as P3 CrossFit. They needed to set precedent to avoid a flood of new lawsuits or even worse, a flood of settlements. Commercial insurers look to cut costs and settle rather than defending the CrossFit name and program. This approach would have set a dangerous precedent that would have opened affiliates up to attack from unscrupulous individuals who see easy money on the table. In the years after the RRG was established, there has been a few rhabdo cases against CrossFit Affiliates, but not against gyms that were insured by the RRG. The RRG and the P3 case provides the pre-litigation framework for other Affiliates to follow as well as sets a legal precedent if a claim actually gets to court.