Stuck Between a Dumbbell and a Hard Place – Fitness Club Members Claims RE Smashed Finger Dismissed (TX)



Grijalva v. Bally Total Fitness (Texas)

Plaintiff had been a member of defendant’s health and fitness club for many years.  When he joined, plaintiff signed a detailed Membership Application, which included waiver and release and assumption of risk language.  About a year after he joined, plaintiff was injured while lifting weights.  His finger was caught between his own weights and a set of weights that was left on the floor by another member, causing disfigurement and loss of use.  Plaintiff sued the defendant club for premises liability, negligence, intentional infliction of emotional distress, breach of common law warranty, fraudulent inducement, and breach of contract.  In particular, plaintiff alleged that there were “several weights or dumbbells left around the various benches nearby [the bench where he was lifting weights] that were not returned to their regular and specific rack locations.”  A set of those weights left by another member caused plaintiff’s injury.  The intentional conduct claim was based on plaintiff’s allegation that the defendant failed to assist him “in mitigating the extent of his injuries to his finger” by “failing to summon medical assistance immediately.”

Defendant moved for summary judgment, contending (1) plaintiff had waived his right to pursue his negligence claims by executing the waiver and release provisions of the Membership Application, and (2) plaintiff could not provide evidence of all essential elements of his remaining claims.  Initially, plaintiff asserted that he did not sign a waiver and release in the Membership Agreement (he claimed that while he signed the second page of the agreement, the waiver and release provision is on the third page, which he did not sign), that he did not “speak and write English properly,” and that the club did not discuss the waiver and release with him.  He also argued that the waiver and release in the Membership Application did not meet Texas’ “fair notice requirement” because it was not conspicuous.  The trial court granted the club’s motion, dismissing plaintiff’s claims, and plaintiff appealed.

On appeal, the Court of Appeals of Texas affirmed the trial court decision.  The Court noted that plaintiff had admitted signing the Membership Application, and the Court stated that plaintiff could not point to any authority “providing that the waiver and release provision must be signed or initialed separately from the remainder of the agreement or that it must be discussed to be enforceable, so long as it meets the fair notice  requirements.”  The Court was satisfied that the provisions were sufficiently visible and identifiable, taking into consideration the placement and the use of capital letters and bold typeface for the headings and portions of the waiver clause itself.

On appeal, plaintiff also argued that the defendant’s “no-evidence motion for summary judgment” did not clearly delineate the elements of the claims on which he could not prevail.  However, the Court overruled plaintiff’s argument.  The Court concluded that “the only evidence [plaintiff] provided to support his [intentional infliction of emotional distress claim did] not establish that [defendant’s] conduct was extreme and outrageous or that it intentionally or recklessly caused severe emotional distress.”  Additionally, the Court held that plaintiff “failed to produce evidence on at least one essential element of his breach of express warranty and fraudulent inducement claims.”

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