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New Jersey State Bar Association -- Dictum, the Newsletter of The Is your corporate branding exposing you to corporate liability? Food for thought on the use of strobe lights in fitness classes By Jordan B. Doppelt rom the cars we drive to the toothpaste we panic, confusion, a spinning sensation, seizures and/or purchase, consumers have an abundance of loss of consciousness.4 F choices. Choices are a good thing. They force Given the above, fitness facilities, from the owners companies to compete with one another, and that to the managers and instructors, need to be aware of competition rewards consumers with the best possible the risks and hidden dangers that strobe lights pose to prices, quantity and quality of goods and services. their members and staff. There is not much New Jersey However, with so much competition, corporate case law on point. In fact, there’s none. However, issues marketers are forced to come up with new and will inevitably arise, and the following areas of law are innovative ways of capturing consumers’ business. One subject to litigation. particularly competitive industry is physical fitness. Many like to stay in shape, others use it as a form of Negligence stress relief, some do both. This means big business. But Under negligence theories of recovery, members of how are fitness centers to set themselves apart from their fitness facilities are classified as “invitees.”5 Business competition? owners owe to invitees a duty of reasonable or due care If you search for a new fitness center to join, you will to provide a safe environment for doing that which is see that many have carved out unique brand images. within the scope of the invitation.6 The duty of due care Some advertise that they are open 24-hours a day, others requires the owner to discover and eliminate dangerous promote low monthly dues and others focus on group conditions, to maintain the premises in safe condition, fitness. One newer trend is fitness centers trying to set and to avoid creating conditions that would render the themselves apart by attempting to turn their classes into premises unsafe.7 what can be described as a “club scene.” This extends A review of the case law in New Jersey regarding beyond loud music and camaraderie. It’s often accom- premises liability and fitness centers yielded results panied by installing strobe lights to make it seem like pertaining to the types of physical injuries that you you’re partying your way through your workout. Sure, would probably expect while exercising. Take for example this can be fun and it might be enticing to many current the case of Stelluti v. Casapenn Enterprises, LLC, where and potential members. However, there is a population the handlebars on a spin bike fell while the participant of people who have sensitivities to these lights and medi- was clipped into the pedals.8 The Court noted “[w]hen cal conditions (both diagnosed and undiagnosed) which it comes to physical activities in the nature of sports— could be easily triggered by their use. physical exertion associated with physical training, Photophobia, or light sensitivity, is common in many exercise, and the like—injuries are not an unexpected, neurological disorders.1 As relevant here, it is most preva- unforeseeable result of such strenuous activity.”9 lent in people who suffer from epilepsy, migraines and However, is becoming symptomatic with a migraine, flicker vertigo.2 According to the Epilepsy Foundation, vertigo or triggering a seizure expected and foreseeable? people with a specific form of epilepsy are sensitive to Does it make a difference that the instructor is flipping a flashing lights or particular visual patterns, which could switch and essentially inducing an injury? Is that injury trigger seizures.3 In people with flicker vertigo, such one that you would typically expect at the gym? exposure can result in nausea, dizziness, headaches, Go to New Jersey State Bar Association Dictum 11 Index Criminal Law “Disability” has been defined under the ADA as: (i) a Litigation on the use of strobe lights and cases such physical or mental impairment that substantially limits as epilepsy include the prosecution of John Rivello. one or more of the major life activities of such individual; There, Rivello sent a tweet attaching a flashing image of (ii) a record of such an impairment; or (iii) being regarded a strobe light to journalist Kurt Eichenwald. Attached as having such an impairment[].19 The ADA also sets forth to the image was the message “you deserve a seizure for a non-exhaustive list for what constitutes a “physical or your post.”10 Rivello was indicted for aggravated assault.11 mental impairment,” which specifically includes epilepsy.20 The Grand Jury determined that Rivello “did Next, there are three categories of activities that are unlawfully then and there intentionally, knowingly and prohibited on the basis of discrimination: (1) denial of recklessly cause serious bodily injury to … complain- participation, (2) participation in unequal benefit and ant, by inducing a seizure with an animated strobe (3) separate benefit.21 Further, discrimination includes: image, knowing that the complainant was susceptible to seizures and that such animations are capable of caus- A failure to make reasonable modifications in ing seizures.”12 This matter is currently pending in the policies, practices, or procedures, when such District Court of Dallas County, Texas.13 modifications are necessary to afford such goods, services, facilities, privileges, advan- Intentional Torts tages, or accommodations to individuals with Eichenwald also filed a civil suit against Rivello as a disabilities, unless the entity can demonstrate result of the above-referenced incident. The suit includes that making such modifications wouldfunda - allegations of (I) battery, (II) assault, (III) intentional mentally alter the nature of such goods, services, infliction of emotional distress, and (IV) purposeful facilities, privileges, advantages, or accommoda- infliction of bodily harm/prima facie tort.14 The Court, in tions;22 and explaining the physical reactions that led to the seizure, noted that “Defendant intentionally caused photons to hit Plaintiff’s retina, causing Plaintiff to suffer a A failure to take such steps as may be necessary seizure.”15 Ultimately, the Court recognized that this is a to ensure that no individual with a disability is novel area of law but permitted Eichenwald to proceed excluded, denied services, segregated or other- on his battery and assault claims.16 wise treated differently than other individuals Now, of course, I am not suggesting that a fitness because of the absence of auxiliary aids and center is perpetrating an act of physical violence when services, unless the entity can demonstrate that they use strobe lights. However, what if an instructor taking such steps would fundamentally alter the decides to turn the lights on despite knowing that one nature of the good, service, facility, privilege, or more participants are sensitive to them? Based on the advantage, or accommodation being offered or above, that could potentially lead to claims of assault would result in an undue burden;23 and/or battery. The question then becomes, would a lack of strobe Americans with Disabilities Act lights fundamentally alter the fitness class such that The Americans with Disabilities Act considers “a the facility need not honor a participant’s request? If a gymnasium, health spa, bowling alley, golf course, member of the gym asks for the lights to be turned off so or other place of exercise or recreation” to be a place that they can participate in the class, does that constitute of public accommodation if its operation affects a modification or accommodation that must be made commerce.17 The ADA provides: under the ADA? Would it be violative of the Act if a No individual shall be discriminated against on the member is told that they cannot take that class or that basis of disability in the full and equal enjoyment of the there are certain classes they cannot take because the goods, services, facilities, privileges, advantages, or accom- lights will be used? modations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.18 Go to New Jersey State Bar Association Dictum 12 Index New Jersey Law Against Discrimination Conclusion Under the New Jersey Law Against Discrimination, A simple element of corporate branding is not as disability has been defined as: simple as it may seem. Yes, a gym goer who knows they suffer from epilepsy, migraines and/or flicker vertigo [P]hysical or sensory disability, infirmity, should not subject themselves to environments in which malformation, or disfigurement which is caused they know strobe lights will be used. However, what by bodily injury, birth defect, or illness includ- about the gym goer who doesn’t know that they will be ing epilepsy and other seizure disorders, and used? Or the one who doesn’t know they suffer from which shall include, but not be limited to, any one of these conditions? Is working out with weights degree of paralysis, amputation, lack of physical and minimal space between each other in a dark fitness coordination, blindness or visual impairment, studio the best place to find out? If the participant does deafness or hearing impairment, muteness or become symptomatic, will this be immediately apparent speech impairment, or physical reliance on to the instructor or fellow participants? Will someone be a service or guide dog, wheelchair, or other subject to long term damage while participating in an remedial appliance or device, or any mental, activity that is meant to promote health? This is certainly psychological, or developmental disability, a hidden danger that business owners need to be aware including autism spectrum disorders, resulting of and a potential avenue for liability and costly litigation.
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