Some Pain, No Gain: Court of Appeals Affirms That Personal Trainer Was Not Grossly Negligent

Berisaj v Lifetime Fitness, unpublished opinion per curiam of the Court of Appeals, issued February 26, 2019 (Docket No. 341401) illustrates how difficult it is for a plaintiff to create a fact question as to “gross negligence” or “willful and wanton misconduct” in the context of a gym membership or personal training program.

Although the Plaintiff in Berisaj signed two waivers – one when he joined the gym and another when he started the personal training program – this was not dispositive because a fitness club may not contractually insulate itself against liability for gross negligence or willful and wanton misconduct. Xu v Gay, 257 Mich App 263, 269 (2003).

Gross negligence only occurs when a party’s “conduct was so reckless as to demonstrate a substantial lack of concern for whether an injury results.” Berisaj, unpub op at 2, quoting Xu, 257 Mich App at 269. “Evidence of ordinary negligence does not create a question of fact regarding gross negligence.” Berisaj, unpub op at 2. And a “plaintiff cannot satisfy a gross negligence claim by merely stating that a defendant could have taken additional precautions.” Id.

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