for exercise physiologists
11 No 7 July 2008
A Public at Risk: Personal Fitness Trainers without a Standard
1Margaret E. Ciccolella, EdD, JD, 1J. Mark Van Ness, PhD, and
2Tommy Boone, PhD, MPH, FASEP, EPC
1University of the Pacific and 2The College of St.
In 2002, an overweight, sedentary, and
middle-aged man suffered a heart attack during his first workout with his
“certified” personal trainer. During the
workout, the man repeatedly asked to stop because he was experiencing fatigue,
heat, thirst, breathlessness, and chest pain.
The trainer responded to requests to stop and complaints of fatigue by
questioning his client’s masculinity and by continuing the workout. In the lawsuit that followed (Rostai v. Neste Enterprises, 2006), the
court did not have the option to consider a statutorily defined standard of
care since no licensing requirements existed for those who design and/or lead
fitness programs. The court examined the
facts and law as presented including the trainer’s conduct, expert testimony,
as well as a doctrine known as “primary assumption of risk.” In the end, the court held that under this
doctrine, the trainer owed no duty to protect a client from the risks inherent
with exercise or to avoid challenging him beyond his current capacity during an
initial training session. Simply put,
the client assumed the risks associated with exercise, including a risk as
serious as a heart attack [1, 2].
The conclusions reached by the Rostai
court epitomize the concern of professional exercise physiologists who urge the
statutory adoption of a standard of care that imposes minimal education
standards for those who practice exercise physiology. For example, the
President of the American Society of Exercise Physiologists (ASEP), recently
questioned the justice of requiring a license to cut hair but not to “put a
middle-aged, obese, hypertensive, arrhythmic client on a treadmill” . The
basis of licensing laws regulating professional standards is the protection of
public health from unreasonable risk of harm [4, 5]. Statutes mandate a standard of care in some
professions by regulating factors such as minimal educational qualifications,
competency testing, delimited areas of practice, and physical inspection of
sites. So, the question is fairly asked:
On what basis of law or policy is the patron in a hair salon protected but not
the client under the direction of a personal trainer?
The purpose of this paper is to
address the risk to public health when personal fitness trainers are allowed
and encouraged to prescribe exercise, without sufficient background and
training to fully understand the critical role of exercise intensity and
progression to the safety and well being of clients. The Rostai
case is critical for both legal and educational reasons and will be heavily
relied upon throughout this paper. From
a legal perspective, the case is unique because it specifically considers the
conduct of a personal trainer and relieves the trainer for liability in
negligence based upon the doctrine of primary assumption of risk. From an
educational perspective, the case is riddled with gross misunderstandings about
fundamentals of exercise physiology and fails entirely to recognize the
distinction between a “fitness trainer” and an exercise physiologist. Until there is resolution of these issues, an
unwary public will remain at risk when subjected to the “fitness trainer”
without a standard of care.
Negligence: Duty v. Assumption of Risk
Negligence is conduct that falls below
a standard of care established by law for the protection of others against
unreasonable risk of harm. To prevail on a negligence claim, the plaintiff has
to show that the defendant both owed and breached a duty of care to the
plaintiff. The existence of duty and
whether a particular person’s conduct constitutes a breach of duty are
circumstance-specific. General principles of negligence obligate each person to
a standard of care of an ordinary, reasonable, and prudent person under the
same or similar circumstances. However,
public policy, case law, and statutory law drive legal determinations of
whether a person is entitled to protection under the circumstances .
The doctrine of primary assumption of risk
is an exception to the general rule that all persons have a duty to use due
care to avoid injury to others and, when applied, the doctrine acts as a
complete defense to negligence. The
doctrine applies to sports or recreational activities where “conditions or
conduct that otherwise might be viewed as dangerous often are an integral part
of the sport itself” and their removal would alter the nature of the sport. [6;
7, p. 315]. The doctrine typically
applies to sporting activities or other related forms of recreation (e.g., down
hill skiing, white water rafting, rock climbing, a long distance bicycle race,
skateboarding). In these types of
activities, the “integral conditions of the sport or the inherent risks of
careless conduct by others” make the possibility of injury obvious and relieve
a defendant of a duty of care for the particular risks of harm associated with
the activity. The overriding consideration is to avoid imposing a duty which
might “chill vigorous participation” in the activity and “thereby alter its
fundamental nature” or purpose .
Primary assumption of a risk applies
broadly and includes some activities that merely resemble sports. An activity may qualify as a sport if the
activity is done for enjoyment or thrill, requires physical exertion and skill,
and involves a challenge containing a potential risk of injury [8, p.1229]. In Rostai,
for example, working out in a gym with a personal trainer was an activity
subject to primary assumption of risk and was the specific basis on which on
which the court relieved a personal trainer of any duty to his client .
Rostai v. Neste Enterprises (2006) 138 Cal.App.4th
a middle-aged, overweight, and sedentary man contracted with a “certified”
personal trainer for a customized workout and had a heart attack at the end of
the first session . The court found
that the trainer knew that Rostai was not physically fit and was overweight at
the initial training session . The
trainer testified that he did not investigate Rostai’s health history or
current status prior to the first workout and that he had never heard of the
term “cardiac risk factors” . The
court applied the “law” of risk and duty to the “facts” of the workout and held
that the trainer owed no duty of care to the client at all. Specifically, the court held that Rostai
assumed the risks integral to exercise, including the risk of a heart attack,
and that his personal trainer did not breach a duty of care simply by leading a
challenging and strenuous initial workout .
The workout started with level treadmill work for 12 to
13 minutes at 3 to 4 mph. This was followed with weights on an incline
bench (overhead lifts, 10 repetitions at 40 lbs per repetition, followed by 10
more repetitions with slightly heavier weights). Rostai then asked for a break,
but the trainer said, “Later,” and had Rostai do 10 push-ups. Rostai asked
again asked for a break, telling the trainer that he was really tired and out
of breath, to which the trainer responded, “Don't be a pussy” and “First, give
me 10 sit-ups.”
Rostai completed the sit-ups and then returned to the
incline bench to repeat the earlier weight exercise but with the next heavier
weight and at a faster tempo. After 4 or 5 repetitions, Rostai said he
could not do any more and stopped. The trainer reputedly pointed to a nearby
woman and said to Rostai, “Come on, don't you want to get some of this ass?”
Rostai was then instructed to lie down on a mat and lift
both legs simultaneously. He stopped after performing one leg lift. The trainer
grabbed Rostai's legs and pushed them toward Rostai's head 10 to 12 times.
Toward the end of this exercise, Rostai told the trainer that he was out of
breath, could not breathe, and needed some water but he did not tell the
trainer that he was experiencing chest pain. The workout stopped because Rostai
felt he could not continue. After pouring water over his head, Rostai laid down
on the floor in extreme pain and, after about 5 minutes, said “Call 911, I
think I'm having a heart attack.” Rostai was right and later that day underwent
emergency angiography and emergency surgery for the placement of two coronary
Rostai sued the trainer alleging that
the trainer’s conduct breached a standard of care that caused the heart
attack. Specifically, Rostai alleged
that the trainer failed to properly assess Rostai’s physical condition and
cardiac risk factors and that the trainer‘s training approach was too
aggressive. These failures, according to Rostai, constituted a breach of duty
that caused the heart attack to occur during the workout under his trainer’s
supervision [1; 10, p. 6].
Rostai’s supporting evidence included the declaration of
an expert, an associate professor in exercise science at the University of Southern
The expert’s declaration explicitly referenced the manual received by
the trainer in obtaining his certification with the American Muscle and Fitness
Personal Training Institute (AMFPT). The
manual contained sections commenting on the importance of limiting the time of
the first workout to no more than five or ten minutes, carefully observing
clients for shortness of breath (especially if they are seniors or overweight)
and noting that cardiovascular health problems may be exacerbated by exercise
. In reliance upon AMFPT standards
in the organization’s manual, the expert declared that “greater scrutiny should
be exercised in monitoring individuals at health and fitness clubs . . .” [1,
The trainer testified in a deposition what he was aware
that the first workout should be at a lower intensity and that exercise could
exacerbate certain health problems, including cardiovascular disease. He also testified that he had never heard of
the terms “cardiac risk factors” or “heart risk factors”. A physician testified that the heart attack
suffered by Rostai, a placque, could have been caused by any number of factors
including sleeplessness, stress, nutrition, and exercise .
With this evidence, the court concluded that at most the
trainer did not accurately assess Rostai's level of physical fitness. Further,
the undisputed evidence failed to
show that the trainer acted recklessly or that he breached a duty of care to
[the trainer] also may have interpreted Rostai's physical complaints, including his tiredness, shortness of breath,
and profuse sweating, as the usual signs of physical exertion due to lack of
conditioning rather than as symptoms of a heart attack. There is no evidence, however, that defendant [the trainer] acted with intent
to injure Rostai or acted recklessly and thereby increased the risk inherent in
the activity itself. Because the undisputed evidence in this case fails to show
that defendant [trainer] breached a duty of care owed to Rostai….[1, p. 336].
The court further concluded that ordinary negligence was
not a sufficient basis to impose liability upon the trainer. In order to state a cause of action against a
personal fitness trainer, a plaintiff
must allege and prove that the trainer acted either with intent to cause injury
or that the trainer acted recklessly in that the conduct was “totally outside
the range of ordinary activity involved
in [personal fitness training]” .
This raises the question of explicit AMFPT’s standards for the first
exercise session and the importance of observing a client’s response to
exercise (see above). The length of this first workout was in direct
contradiction to AMFPT. The issue of
“ordinary” within a professional context goes to the heart of whether those who
practice exercise physiology under these circumstances should be held to
knowledge of cardiac risk factors and circumstances that may precipitate an
The Rostai Court’s
Analysis: Duty v. Risk
The Rostai court analyzed the doctrine of primary
assumption of risk by focusing on its overriding consideration. The overriding consideration is to avoid
imposing a duty that might chill vigorous participation in the implicated
activity and thereby alter its fundamental nature [1, pp. 331-333].
Defendant argued that imposing a duty on personal trainers
to avoid subjecting their students to a strenuous workout would invariably
chill vigorous participation in fitness training and alter its fundamental
nature by undermining the very purpose of private fitness training [10, pp. 14-15]. Defendant argued that trainers were not cardiologists
who could monitor response to exercise in a sophisticated laboratory setting
but were obligated to administer strenuous workouts in order to achieve either
a fitness or appearance benefit.
Liability for negligence would deter trainers from vigorous training and
radically alter the fundamental nature of fitness training.
If liability were imposed on personal trainers for
miscalculating, even negligently, the amount of exertion their students'
cardiovascular systems could tolerate, trainers, fearing liability, would be
unwilling to administer strenuous workouts…Students would be thwarted in their
efforts to improve their overall level of fitness and appearance. The very
purpose of private fitness training would be undermined [10, pp. 14-15].
Imposing liability on [the trainer] here because he
pushed Plaintiff and did not, in hindsight, accurately “assess and evaluate”
the condition of Plaintiffs cardiovascular system before the workout began
would severely alter the fundamental nature of fitness training. Not knowing
who among their students was a “ticking cardiac time bomb” with an undiagnosed
heart condition, trainers would never push their students. Students would
stagnate and never achieve their fitness goals. This is precisely the sort of
chilling effect which would deter fitness instructors from vigorously training
their students and radically alter the fundamental nature of private fitness
training [10, pp. 14-15].
The court agreed completely with the Defendant in holding
that the obvious purpose of working out with a personal trainer is to improve
physical fitness and appearance that requires participation in strenuous
exercise. The inherent risks include
physical distress in general, soft tissue injuries, and damage to the heart.
In order to accomplish that goal, the participant must
engage in strenuous physical activity. The risks inherent in that activity
include physical distress in general, and in particular muscle strains,
sprains, tears, and pulls, not only of the obvious muscles such as those in the
legs and arms, but also of less obvious muscles such as the heart. Stress on
the cardiovascular system as a result of the physical exertion that is an
integral part of fitness training with a personal trainer is a risk inherent in
the activity. Eliminating that risk would alter the fundamental nature of the
activity [1, p. 333].
In addition to consideration of inherent risks, the court
addressed the question of duty by examining the parties’ relationship while
participating in the activity; specifically, the role of the trainer whose
conduct is at issue was considered. The
court analogized this relationship to those in competitive sports by citing
examples of differential duties of care owed in baseball, touch football, and
high school swimming. The pedagogical
relationship between coach and athlete was also cited by the court. The court disputed the client’s
characterization of the trainer’s role and held that the relationship of
trainer to the client was to instruct and challenge.
[Rostai] phrases his claim against [the trainer] in terms of failing to
adequately assess plaintiff's physical condition and in particular his cardiac
risk factors, the essence of plaintiff's claim is that Shoultz, in his capacity
as plaintiff's personal fitness trainer, challenged plaintiff to perform beyond
his level of physical ability and fitness. That challenge, however, is the very
purpose of fitness training, and is precisely the reason one would pay for the
services of a personal trainer. Like the coach in other sports or physical activities,
the personal trainer's role in physical fitness training is not only to
instruct the participant in proper exercise techniques but also to develop a
training program that requires the participant to stretch his or her current
abilities in order to become more physically fit. The trainer's function in the
training process is, at bottom, to urge and challenge the participant to work
muscles to their limits and to overcome physical and psychological barriers to
doing so. Inherent in that process is the risk that the trainer will not
accurately assess the participant's ability and the participant will be injured
as a result [1, p. 334].
To instruct is to challenge, and the very nature of
challenge is that it will not always be met. It is not unreasonable to require
a plaintiff who has chosen to be instructed in a particular activity to bear
the risk that he or she will not be able to meet the challenges posed by the
instructor, at least in the absence of intentional misconduct or recklessness
on the part of the instructor. Any other rule would discourage instructors from
asking their students to do anything more than they have done in the past,
would therefore have a chilling effect on instruction, and thus would have a
negative impact on the very purpose for seeking instruction: mastering the
activity [1, p. 334].
It is important to note that Rostai was decided on the
basis of a summary judgment, a “trial on paper” that precludes the need for a
jury. A prerequisite to summary judgment
is undisputed facts that allow a judge to decide a case as a “matter of law.”
As a matter of law and with “undisputed” facts, the Rostai court held
that Rostai assumed the risk of a heart attack and, therefore, the trainer had
no duty of care to him. One can only
surmise the benefit to Rostai had there been a successful challenge to
“undisputed” facts and had there been a jury trial. One can only imagine the
benefit to legal precedent and protection of the public had a professional
exercise physiologist been able to testify openly in court regarding such
things as the purpose of fitness training, the proper role of a personal
trainer, the relationship between client and trainer, acute physiological
responses to exercise, physiological risk factors based upon age, weight, and
lifestyle, and the proper determination of intensity during a workout.
The Professional Exercise
Physiologist’s Analysis of Rostai
The following section offers comments on the Rostai case from the perspective of an exercise physiologist.
It is not a legal analysis; rather it is a statement on how exercise
physiologists should function and what protection should be afforded
the public. This section takes exception to the Rostai court's analysis of the circumstances and offers a decidedly different interpretation.
Licensing statutes mandate a standard of care in
cosmetology  and other professions, such as massage therapy  and
physical therapy , by regulating such things as minimal educational
qualifications, competency testing, delimited areas of practice, and physical
inspection of sites. The same policy
consideration, protection of public health, underlies the requirements of the
American Society of Exercise Physiologists (ASEP) for Board Certification of
Exercise Physiologists  and the accreditation of college/university academic
programs . Hence, in regards to the ASEP perspective, the challenge isn’t
to secure a legally mandated requirement to obligate a trainer as it is to
educate the public as to the professional role of the Board Certified Exercise
Physiologist (EPC). The EPC is a
credible healthcare professional who understands that exercise is medicine 
and as such, then, the exercise prescription and other safety measures during
exercise are critical to the safety and well-being of the client/patient.
the trainer was certified through AMFPT, an online organization that advertises
“you can begin your compelling new
career as a fully certified trainer today for only $69.95” . The following information was taken from the
AMFPT website. Note the explicit
qualifications: “If you have exercise and experience with dieting yourself, you
may have the ability to be a good fitness trainer.” AMFPT’s certification
process includes inducements such as it’s easy and fast, one day process, and
that “you can become a fully certified Personal Trainer this week without
waiting, driving to a distant site, or even leaving your house.” Clearly, this is not a professional certification by
any reasonable standard.
Licensing statutes mandate
a standard of care in cosmetology  and other professions, such as massage
therapy  and physical therapy , by regulating such things as minimal
educational qualifications, competency testing, delimited areas of practice,
and physical inspection of sites. There are no licensing mandates for personal
trainers. However, the American Society of Exercise Physiologists (ASEP) has a Board
Certification program for Exercise Physiologists  and an accreditation program
for college/university academic programs  so that educational standards
exist for exercise professionals. The ASEP challenge is not to secure legal
obligations of a personal trainer, but rather to educate the public as to the role
of the Board Certified Exercise Physiologist (EPC). The EPC is a credible
healthcare professional who understands the efficacious role of exercise as medicine
 and the safety measures that should be in place to assure that an exercise
prescription is appropriate for the well-being of the client/patient.
, the trainer was certified
through AMFPT, an online organization that advertises “you can begin your compelling
new career as a fully
certified trainer today for only $69.95” .
The following information was taken from the AMFPT website. Note the
explicit qualifications: “If you have exercise and experience with dieting
yourself, you may have the ability to be a good fitness trainer.” AMFPT’s
certification process includes inducements such as it’s easy and fast, one day
process, and that “you can become a fully certified Personal Trainer this week
without waiting, driving to a distant site, or even leaving your house.”
Clearly this is not a professional certification
by any reasonable standard.
had evidence that AMFPT’s certification process included content relevant to
the circumstances of a middle-aged overweight and sedentary man beginning
exercise. There was testimony that the trainer violated AMFPT standards.
Additionally, plaintiff’s expert testified
that that “greater scrutiny should be exercised in monitoring individuals at
health and fitness clubs.”
It should be
noted that the testimony of the expert witness for Rostai was disregarded in part
because it was inadmissible. How much this impacted the court is speculative. Nonetheless
the court’s decision was disingenuous at best and disastrous at worst. To hold
that the trainer owed no duty is simply bad thinking. To find that Rostai assumed
the risk of a heart attack under the circumstances is irresponsible.
Given the trainers approach to a first
exercise bout for a middle-aged, inactive and overweight adult, it is
reasonable that the defendant was responsible for the plaintiff’s heart attack.
A physical trainer, coach, physical therapist, or a Board Certified Exercise
Physiologist should conform to a standard of conduct and duty to avoid harm and
damage to their client. For the court to affirm that the personal trainer in
the Rostai case was not responsible for their conduct toward the client is
clearly an example of bad thinking that lead to a bad decision.
doctrine of assumption of risk prevailed as a defense to duty in this
The doctrine applies to sports or
recreational activities where “conditions or conduct that otherwise might be
viewed as dangerous often are an integral part of the sport itself” and their
removal would alter the nature of the sport. [6; 7, p. 315]. On this basis, the
court relieved the trainer of any duty of care to Rostai. This comparison of
sport participation with participation in a fitness program represents flawed
thinking and a complete misunderstanding by the court of the nature of an
exercise professionals role in this setting. The undisputed facts of this case
show that Rostai asked to stop exercising (i.e., he demonstrated that is was
trying to avoid injury to himself), but the defendant pushed him on,
relentlessly, without regard to the plaintiff's well-being or safety. This is
simply a case of the defendant’s failure to anticipate the health needs of his
client by altering the scope of training as opposed to the nature of training.
The defendant's use of the
doctrine of primary assumption of risk "that the idea that the plaintiff
had a duty to stop exercising is by virtue of the relationship between trainer
and client” is fundamentally flawed thinking.
Most clients would be, as the plaintiff was, subject to the authority of
the personal trainer. Further, It is reasonable to assert that the defendant
should have evaluated the plaintiff's cardiovascular health prior to the first
training workout and tailored the workout to match the defendant’s capabilities.
The defendant acted recklessly in pushing the
plaintiff beyond his capabilities during the workout without apparent knowledge
of the danger to his client.
unsettling facts speak to the total lack of academic and scientific training
necessary to customize a physical fitness program for an overweight and
The idea that the
plaintiff's heart attack was an inherent risk of a structured physical training
program makes absolutely no sense. In this case the plaintiff hired the
defendant to personally design and oversee his exercise program. The plaintiff assumed
and depended on the trainer to prescribe activity that would be healthy for
him. The plaintiff thought he was hiring a personal trainer who had the
knowledge, training, and understanding to train people (i.e., provide the
necessary guidance to lose weight and get healthier and, obviously, to do it
safely). Instead of getting stronger and healthier, the "first
session" could have resulted in the plaintiff's death from a heart attack.
If there is no standard of care for a
personal trainer then indeed, the public is at risk. Whether it is a person who
goes to a cosmetologist, a massage therapist or a physical therapist, there is
an expected standard of care. Without any acceptable standards for personal
trainers, the risk for a client can be compared to participation in sport
activity. Athletes have come to understand that they bear the risk of their
participation, and this should be different from hiring a personal trainer who
designs a fitness program to help the client avoid musculoskeletal and/or cardiovascular
problems. The bottom line is that fitness programs are not sports programs! The
risk inherent in the activity of each is totally different. Clearly, those who
participate in sports must acknowledge the risk of their participation. This is
why in the absence of legally enforceable standards, the predatory nature of
online and inexpensive companies that certify trainers without accountability
will pose an increasing and potentially deadly risk to the public.
The question before the
reader is whether a personal trainer should be held to some standard of
practice. Should personal trainers be allowed to act as though they know what
they are doing, but lack any standard of knowledge and practice? In the Rostai
case the personal trainer displayed flawed behavior and recklessness in their
conduct. It is clear that the personal trainer had little to no knowledge of
the risk involved in training middle-aged adults and illustrates why personal
trainers in general should not be allowed to practice as health professionals.
Many, if not most, personal trainers lack a comprehensive educational
foundation in applied anatomy, cardiovascular physiology, sports and human
biomechanics, physiological assessment, and pathology to be able to safely
prescribe and monitor exercise programs. Without fundamental training in these
areas, personal trainers are prone to embrace irrelevant and misleading
information that could be harmful to their clients. This is exactly why there
should be some standard of care for personal trainers, and why the Board
Certified Exercise Physiologist is the professional of choice when it comes to
individualized personal training, whether it is for fitness enhancement,
athletics, or rehabilitation.
Board Certification of an
Exercise Physiologist as a health professional is important because it provides
educational and practice standards that are needed to provide the scientific
foundation for a safe exercise program. The ASEP Standards of Professional
Practice  establish a benchmark for an exercise physiologist to meet, this
assures the general public will have access to an exercise professional that
can safely and accurately prescribe and oversee an exercise program.
It is possible that Rostai
reached its conclusions based
upon inadequate or unpersuasive evidence. The court’s failure to recognize the
most rudimentary principles of "exercise as medicine" is stunning to
the professional exercise physiologist. The court erroneously concluded that
vigorous exercise is necessary to achieve fitness, failed to properly
distinguish skeletal and cardiac muscle, expressed a decided lack of
understanding of overload or minimal thresholds to achieve a training effect,
inappropriately defined the purpose of training, and failed to acknowledge
disparate risks of exercise in the young versus middle-aged. Misunderstanding
on these issues is at odds with protection of public health. Resolution is as
much an educational as a legal issue, and it is incumbent upon the profession
of exercise physiology to dedicate resources to the implementation of a strategy
that will offer a remedy. Until that time, the public will remain at risk when
trainers have no standard of care to which they are legally obligated.
In the case
of the personal trainers, the standard of care to which they are legally
obligated is ambiguous at best for a number of reasons.
Case law examining the specific activity of
fitness training under the guidance of a trainer is lacking.
Similarly, statutory provisions regulating
personal trainers are lacking.
premised upon strained analogies to “sport” currently and ignorance regarding
fundamental principles of exercise physiology establish the personal trainer’s
duty of care as being entirely inadequate.
Unfortunately, this leaves the client vulnerable to damages without
recourse when harmed by a personal trainer whose conduct violates both a common
sense approach to exercise training as well as the scientific foundations of an
exercise program and prescription as identified by a Board Certified Exercise
The burden remains with
professional organizations to explicitly articulate a standard of care, and to
argue before the public at large that "exercise as medicine" should
be prescribed by ASEP Board Certified professionals.
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Corresponding Author: Margaret E. Ciccolella,
Department of Sport Sciences, University of the Pacific, 3601 Pacific Avenue, Stockton,
CA 95211, (209) 946-2473 (office)
American Society of Exercise Physiologists All Rights