Feeling the burn not always good | SierraSun.com

Feeling the burn not always good

Jim Porter

Masood Rostai is an overweight 46-year-old who never exercises. He is 5-10 and weighs 228 pounds.Jared Shoultz is a personal trainer who provides customized physical fitness programs for his clients at Golds Gym. They met in Rostais furniture store and Rostai said to Shoultz, I want to look buffed like you. That tells you something right there.

Rostais very first workout with Shoultz started with 12 to 13 minutes on a level treadmill, then 10 repetitions with 40-pound weights on an incline bench followed by 10 more repetitions with slightly heavier weights. Our man Rostai asked for a break. Shoultz said later and had Rostai do 10 pushups. When Rostai complained Shoultz said, Dont be a pussy first give me 10 sit-ups. After the sit-ups they returned to the incline bench with even heavier weights at a faster tempo. Poor old Rostai gave it up. At that point, Shoultz, best described as a macho instructor or perhaps idiot, pointed to a nearby woman, presumably in Spandex, and said to our overweight trainee, Come on, dont you want to get some of that ass?Shoultz kept up the torture. Rostai complained between more leg lifts. Finally Rostai wasnt able to complete the workout. About five minutes later he said, Call 911, I think I am having a heart attack. And he did.

It was Rostais turn to give Shoultz a heart attack, which he did by suing Shoultz and Golds Gym.They defended, claiming Rostai assumed the risk of a heart attack that is inherent in any strenuous training session.I am not certain why Golds Gym and Shoultz didnt defend based upon signed releases, but there was no discussion about releases in the case. A good release should have worked for the trainer and Golds. So this is not a release case, this is a sports injury case. The issue is whether working with a personal trainer at a gym is the same as a sports injury.As you know, injured sports participants are generally unable to successfully sue because they are deemed to have assumed the risks inherent in the sport.

There are plenty of cases where students were injured while working with sports instructors, where the assumption of the risk saved the instructor from liability: Novice swimmer and swim team coach; participant in junior lifeguard competition with instructor; high school cheerleader and coach; judo student and instructor; and now personal trainer and injured, overweight, 46-year-old who never exercised.

The Court of Appeal found personal trainer Shoultz not liable because his conduct was not intentional or reckless he was merely pushing his client, perhaps in hindsight too hard, but thats the nature of working with a personal fitness trainer. Its supposed to hurt.Golds Gym had no obligation to monitor and protect Rostai. The Gym does not have a duty to eliminate all the risks inherent in a strenuous workout, including a heart attack.A defective equipment case might have a different result. Jim Porter is an attorney with Porter Simon, with offices in Truckee, South Lake Tahoe and Reno. He is a mediator and was the Governor’s appointee to the Bipartisan McPherson Commission and the California Fair Political Practices Commission. He may be reached by e-mail at porter@portersimon.com or at the firms Web site, http://www.portersimon.com.