Summary
holding that personal injury claims are generally barred by the DTPA
Summary of this case from Roberts v. Zev Techs., Inc.Opinion
No. 05-04-01119-CV
Opinion Filed June 10, 2005.
On Appeal from the County Court at Law, No. 2, Dallas County, Texas, Trial Court Cause No. 03-00275-B.
Affirm.
Before Justices WHITTINGTON, FITZGERALD, and RICHTER.
MEMORANDUM OPINION
Jeffrey Michael DiGangi was injured while using a fitness machine manufactured by Bodymaster's at 24 Hour Fitness USA, Inc. According to DiGangi, he was using the machine correctly when the cable broke, allowing a bar to hit him in the head and mouth. DiGangi brought suit against 24 Hour, claiming negligence as well as breach of warranty and misrepresentation under the Deceptive Trade Practices-Consumer Protection Act (DTPA) and the Health Spa Act. The trial court granted summary judgment for 24 Hour. On appeal, DiGangi only asserts that the trial court erred in entering summary judgment based on his claim under the DTPA and Health Spa Act. We affirm the trial court's judgment.
BACKGROUND
In his original petition, DiGangi alleged that 24 Hour had violated the DTPA by committing the following misleading acts:
(1) causing confusion or misunderstanding as to the source, sponsorship, approval, or certification of goods or services;
(2) causing confusion or misunderstanding as to affiliation, connection, or association with, or certification by, another;
(3) representing that goods or services have sponsorship, approval, characteristics, ingredients, uses, benefits, or quantities, which they do not have, or that a person has sponsorship, approval, status, affiliation, or connection, which he or she does not;
(4) advertising goods or services with intent not to sell them as advertised;
(5) representing that an agreement confers or involves rights, remedies, or obligations, which it does not have or involve, or which are prohibited by law;
(6) representing that work or services have been performed on, or parts replaced in, goods when the work or services were not performed or the parts replaced; and
(7) failing to disclose information concerning goods or services which was known at the time of the transaction with the intention to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed.
See Tex. Bus. Com. Code Ann. § 17.46 (Vernon Supp. 2004-2005). DiGangi likewise alleged violations of the Health Spa Act.
See Tex. Occ. Code Ann. § 702 (Vernon 2004). He specifically alleged that 24 Hour had made material misrepresentations regarding the availability, quality, or extent of the facilities or services of the health spa. See Tex. Occ. Code Ann. § 702.402 (Vernon 2004). DiGangi asked for damages for medical care and expenses, physical pain and suffering, physical impairment, loss of earnings, loss of earning capacity, disfigurement, mental anguish, and cost of medical monitoring and prevention.
In its motion for summary judgment, 24 Hour argued that DiGangi had no viable cause of action. Specifically, 24 Hour asserted that DiGangi's personal injury claims are not within the purview of the current provisions of the DTPA.
In his response, DiGangi argued that the DTPA is applicable in his case. According to DiGangi, the DTPA allows consumers to recover their economic damages resulting from a bodily injury when those damages are based upon a breach of warranty or a misrepresentation. His sworn affidavit stated that he had joined 24 Hour before it opened for business and before much of the equipment had been delivered based on the representations that 24 Hour would have "top of the line" and "state of the art" exercise equipment and that the facility would provide "excellent, prompt, and complete customer service."
Because this equipment was in the care, custody, and control of 24 Hour, DiGangi argued that there is a compelling need for the imposition of an implied warranty that the services provided by 24 Hour are safe for the club member. He attached the club membership agreement, which reflects DiGangi (1) voluntarily accepted risk of injury, (2) agreed that 24 Hour would not be liable for any injury, including bodily injury or economic loss, as a result of negligence on 24 Hour's part, (3) acknowledged that 24 Hour did not manufacture any of its equipment and that 24 Hour leased or purchased its equipment from third parties, (4) acknowledged that 24 Hour provides recreational services, and (5) acknowledged that 24 Hour could not be held liable for defective products. DiGangi further argued that the Health Spa Act, which prohibits a material misrepresentation to a member regarding the quality or extent of the facilities, constitutes a DTPA "tie-in" statute that allows recovery of all actual damages.
Each party basically reiterates its summary judgment argument on appeal. Because we agree that DiGangi had no viable cause of action under the DTPA, we conclude that the trial court was correct in granting summary judgment in favor of 24 Hour.
STANDARD OF REVIEW
The movant may file a motion for summary judgment that shows that the nonmovant has no viable cause of action based on the nonmovant's pleadings. National Un. Fire Ins. Co. v. Merchants Fast Motor Lines, Inc., 939 S.W.2d 139, 141 (Tex. 1997). When evaluating a motion for summary judgment based on the nonmovant's pleadings, the trial court must (1) assume that all allegations and facts in the nonmovant's pleadings are true and (2) indulge all inferences in the nonmovant's pleadings in the light most favorable to the nonmovant. Natividad v. Alexsis, Inc., 875 S.W.2d 695, 699 (Tex. 1994).
DISCUSSION
The exceptions
In 1995, the 74th Texas Legislature revised the DTPA to include the following provision: "Except as specifically provided by Subsections (b) and (h), Section 17.50, nothing in this subchapter shall apply to a cause of action for bodily injury or death or for the infliction of mental anguish." Tex. Bus. Com. Code Ann. § 17.49(e) (Vernon Supp. 2004-2005). DiGangi urges that he may rely on these exceptions to proceed on his claim for bodily injury. The plain meaning of the statute is clearly contrary to his argument. See Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864, 865 (Tex. 1999) (if the statute's language is clear and unambiguous, the Courts adopt the interpretation that the statute's words support).
Economic damages normally include compensatory damages for pecuniary loss, including costs of repair and replacement but not exemplary damages or damages for physical pain and mental anguish, loss of consortium, disfigurement, physical impairment, or loss of companionship and society. Tex. Bus. Com. Code Ann. § 17.45(11) (Vernon 2002). Section 17.50(b) allows a consumer to recover any economic damages to which he is entitled under the DTPA, plus damages for mental anguish if the violation of the DTPA was committed knowingly or intentionally. Tex. Bus. Com. Code Ann. § 17.50(b) (Vernon 2002).
Thus, a consumer may add on mental anguish damages if he is first entitled to economic damages under the DTPA. As we discuss below, DiGangi is not entitled to any damages under the DTPA. Section 17.50 (h) allows a consumer to bring a cause of action under the DTPA if he is granted that right by another law. Tex. Bus. Com. Code Ann. § 17.50(h) (Vernon 2002). DiGangi asserts that the Health Spa Act grants him that right. The Health Spa Act is designed to protect the public against unfair practices involving health spa contracts and the marketing of health spa services. Tex. Occ. Code Ann. § 702.002(a) (Vernon2004). There is nothing within the language of the statute affording a right of action for bodily injury. We cannot conclude that the Health Spa Act is a tie-in statute allowing DiGangi to recover damages for personal injury under the DTPA.
Warranty
DiGangi cites the provision allowing a consumer to recover under the DTPA for a breach of an implied warranty that is a producing cause of economic damages or mental anguish. Tex. Bus. Com. Code Ann. § 17.50(a) (Vernon 2002). So that he can apply this provision to his case, he argues for the imposition of an implied service warranty that the equipment had been inspected, had been maintained, and was safe for spa members.
Although the DTPA prohibits the breach of an implied warranty, it does not create an implied warranty. Tex. Bus. Com. Code Ann. § 17.50(a) (Vernon 2002). Unlike the implied warranties imposed on certain sales transactions under the Uniform Commercial Code, an implied service warranty arises under the common law when public policy mandates. Melody Home Mfg. Co. v. Barnes, 741 S.W.2d 349, 353 (Tex. 1987). An implied warranty will not be judicially imposed unless there is a compelling need; that is, there are no other adequate remedies available to the consumer. Parkway Co. v. Woodruff, 901 S.W.2d 434, 438-39 (Tex. 1995).
In this case, even if we assume that all allegations and facts in DiGangi's pleadings are true and indulge all inferences in his pleadings in the light most favorable to him, there is nothing to indicate that poor maintenance caused DiGangi's accident or that 24 Hour was responsible for that maintenance. And DiGangi has not show a compelling need for the judicial imposition of such an implied warranty.
We overrule this issue.
CONCLUSION
Having overruled DiGangi's sole issue, we affirm the judgment of the trial court.