Bally Total Fitness is the largest health club chain in the United States, with approximately 3.5 million members nationwide.
On November 7, 2005, 46-year old Gary Fowler collapsed from Sudden Cardiac Arrest while exercising at a Bally club in Gaithersburg, Montgomery County, Maryland. Club employees did not immediately begin CPR when responding to Mr. Fowler’s collapse; instead, club members, realizing that staff would not do so, performed CPR. The club did not have an AED on the premises. Despite the members’ efforts, and those of the local EMS, Mr. Fowler died.
A Montgomery County ordinance in effect at the time required the installation of AEDs in health clubs, but may have exempted the town of Gaithersburg by virtue of a Home Rule amendment. No Bally club in Montgomery County had an AED, even in the two towns where they were required by the ordinance.
In July, 2006, Weinberg & Garber filed suit on behalf of Mr. Fowler’s family in Cook County, Illinois, where Bally has its headquarters. This is at least the sixth case against Bally for its failure to deploy AEDs and/or to perform CPR. Four of these suits were settled before trial.
Bally filed a motion to dismiss the Fowler suit. Bally argued it had no legal duty to have an AED at its Gaithersburg club and that, in any event, the membership agreement, signed by Mr. Fowler in 2003, had a waiver and release which immunized Bally from liability. Weinberg & Garber opposed the motion with three primary points:
• The membership waiver and release signed by Mr. Fowler did not apply because it covered typical health club injuries, such as dropped weights or slippery floors, and did not contemplate a negligent response to a foreseeable emergency such as cardiac arrest;
• Regardless, the waiver and release didn't encompass gross negligence, i.e., where a defendant is “...so utterly indifferent to the rights of others that he acts as if such rights did not exist.”
In a written decision, the Cook County Circuit Court judge, Judge James Egan, denied Bally's Motion to Dismiss. Judge Egan agreed that the legal standard of care had evolved by the time of Mr. Fowler's death and cited favorably an opinion from the Middlesex Superior Court in Massachusetts where the court saw “...no reason why the standard of care, even for emergency services, should not be regarded as an ever-evolving concept, measured in some way by the acceptance of the need for and efficacy of new emergency treatment, procedures and equipment.” (See, page 10 of Judge Egan's opinion).
Furthermore, under a traditional duty analysis, the Court found that all factors considered weighed in favor of finding a duty on the part of Bally. Judge Egan wrote that “common sense dictates that heart-attacks are a reasonably foreseeable type of injury likely to occur in instances where strenuous physical activity and exercise is encouraged... and societal standards... were trending towards mandatory AED requirements at the time of decedent's death....” Moreover, the Court noted that “most interestingly, when it comes to the question of the ‘moral blame attached to Defendant's conduct,’ Bally never once addresses why it has been and continues to be so adamantly opposed to the use of AEDs in their healthclubs.”
Although the Court ultimately found that the waiver and release signed by Mr. Fowler barred a simple negligence claim (a point with which the Plaintiff disagrees), the Court found that the waiver and release did not bar a claim for gross negligence. The Court found that “Plaintiff has more than met her burden of demonstrating gross negligence on the part of Bally in refusing to maintain or deploy an AED at its Gaithersburg, Maryland facility....” Even where there was no statutory obligation to do so, Judge Egan stated that
Weinberg & Garber has developed an excellent working relationship with lawyers around the country who have sued major health club chains including Bally. As a result, before suit was even filed, the firm had an extensive archive of internal Bally documents and sworn testimony obtained in those other lawsuits.