The novel corona virus Sars-CoV-2 is still ubiquitous. Many business owners are eager to resume their activities, but uncertainty is also high. Can gym operators be held liable if a member contracts the virus while working out at the gym? You can find an overview of the legal situation and what it means for your gym here. 
Applicable legal principles
The established case law of the Federal Court of Justice (BGH) stipulates that the person who creates a hazardous situation - of whatever kind - is in principle obliged to take all necessary and reasonable precautions to prevent harm to others as far as possible.
This process is referred to as traffic safety and includes all measures that a prudent and reasonable person, within reasonable limits, would consider necessary and sufficient to protect others from harm (Senate decisions of March 6, 1990 - VI ZR 246/89, mwN).
In addition, the rulings of the BGH regarding the infection of third parties are likely to be relevant for the studio. In the case of HIV, the BGH ruled as early as 1988 that in the event of infection of third parties, the carrier of the infection can be held liable if:
- The infected person knew of his illness.
- The infected person did not inform the affected person about it
- Nevertheless engaged in unprotected intercourse with the infected person
What does this mean for liability in the gym?
Basically, the above legal examples mean that the operator of the fitness studio is obliged to take measures to ensure traffic safety.
The comprehensive requirements issued by the individual federal states as a prerequisite for the reopening of studios are an important basis for you as a studio operator for the necessary measures for traffic safety.
If these measures are not taken, or not taken to a sufficient extent, to prevent infection during training in the gym, infection in the gym falls under the responsibility of the gym operator.
Transferring the ruling on HIV to the Corona virus, the following applies: If you, one of your employees or a freelance trainer knows that he or she is infected with the Sars-CoV-2 virus, or knowingly comes to work after direct contact with an infected person and has direct contact with members, this constitutes a criminal offense.
However, the predominantly more common scenario is likely to be an unknowing infection with the virus. In the latter case, there is no negligence, gross negligence or even intent.
What is important in the event of liability?
A business liability insurance with a sufficiently high coverage amount is anyway not only mandatory for every studio operator, but also otherwise highly recommended.
If you have freelancers working in your studio, you as a studio owner should make sure that your trainers have a trainer liability insurance with a sufficiently high coverage, which also covers consequential damages up to at least 10 million Euros.
It is not necessarily obvious to your members who is permanently employed in the studio and who is working there as a freelancer. If, in the event of liability, your freelance trainer does not have the appropriate liability insurance, then the studio may be held liable . Since your business liability insurance is not liable for someone who does not belong to your business, you as the owner of the studio would have to be liable for the damage incurred.
As the studio owner, you should therefore obtain written confirmation from freelance trainers that a trainer's liability policy with sufficient coverage exists.
This way, any damage can be settled by an insurer in any case.
We would like to draw your attention to the fact that this article is intended for non-binding information purposes only and does not constitute legal advice in the true sense of the word. The content of this offer cannot and is not intended to replace individual and binding legal advice that addresses your specific situation. In this respect, all information offered is without guarantee of correctness and completeness.
Minimize the danger of infection in the studio with the appropriate tools!
Editors fitnessmarkt.de (DG)
Photo credit: #330587867 Prostock-studio / stock.adobe.com.
Published on: 12 June 2020