SFBBG notched a win for Bally Total Fitness Corporation when, following a trial last week in Milwaukee Circuit Court, the Court found Bally not liable for a retinal detachment injury suffered by a member during a Tae Kwon Do sparring class at a Bally health club. Bally was represented at trial by Firm partners Norman T. Finkel and William R. Klein, who have been representing health and fitness clubs for over 30 years. The plaintiff, a health club member and top student in Tae Kwon Do with a first degree black belt, was kicked in the eye by a Tae Kwon Do instructor, a fifth degree black belt who was teaching the class. During the sparring class, the member was wearing the full array of protective equipment required by Bally during sparring classes, including head gear and a mouth guard.
Circuit Judge Rebecca F. Dallet ruled the health club member assumed the risk of injury to the head area after previously participating in countless sparring sessions over a period of three years. Under Wisconsin law, “a participant in a recreational activity … accepts the risk inherent in a recreational activity in which the ordinary prudent person is or should be aware.” Judge Dallet found the weight of the evidence supported Bally’s arguments that the member had participated in numerous sparring classes where kicks to the head area were permitted and common, that making and defending such kicks are an integral part of Tae Kwon Do and practice sparring sessions, and that an ordinary person should have expected kicks to the head area by an instructor at a Bally sparring session.
A copy of the article that was published in the Chicago Law Bulletin can be seen here.