Ramirez v. 24 Hour Fitness USA, Inc.

Filing 15

MEMORANDUM OPINION AND ORDER granting 9 MOTION for Summary Judgment. (Signed by Judge Sim Lake) Parties notified. (aboyd)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

KIMBERLY RAMIREZ ,

5

Plaintiff,
V.
24 HOUR FITNESS USA, INC. and
24 HOUR FITNESS,
Defendants.

§
§
§
§
§
§
§
§
§

CIVIL ACTION NO. H-12-1922

MEMORANDUM OPINION AND ORDER

Defendant 24 Hour Fitness USA, Inc. ("Fitness USA")' removed
this action from the 125th Judicial District Court for Harris
County, Texas.
§

1332.

Jurisdiction is based on diversity under 28 U.S.C.

Pending before the court is Fitness USA's

Summary Judgment (Docket Entry No. 9).

Motion for

For the reasons explained

below the court will grant the motion.

l~lthough Plaintiff Kimberly Ramirez names two parties as
See
defendants, "24 Hour Fitness" is a non-existent entity.
Fitness USA's Motion for Summary Judgment, Docket Entry No. 9, p. 1,
n.1. Ramirez does not argue to the contrary. Fitness USA has
acknowledged that it is a proper party to the action. All claims
against "24 Hour Fitness," along with those against "24 Hour
Fitness USA, Inc.," will be dismissed in a separate final judgment.

I. Backqround
A.

Ramirezrs Allegations
In June of 2010 Ramirez entered a Fitness USA facility in

Baytown, Texas, to attend a yoga class.'

Ramirez alleges that as

she walked through the Fitness USA facility she "slipped in a
puddle of water and/or sweat," suffering injuries as a result of
the

In her Original Petition Ramirez asserts two negligence

causes of action against Fitness USA to recover for her injuries
and ensuing medical expenses.4

Ramirez alleges that Fitness USA

"failed to use that degree of care which an owner or occupier of
ordinary prudence

would have used under the

same or similar

circum~tances."~ Ramirez contends that such negligence was the
proximate cause of her i n j ~ r i e s . ~ In the alternative Ramirez
alleges that Fitness USA "negligently engaged in a contemporaneous
activity that proximately caused the occurrence in question."'

'plaintiff Kimberly Ramirez' s Original Petition ("Original
Petition"), Ex. 1 to Notice of Removal, Docket Entry No. 1-2, ¶ 9;
Fitness USA's Motion for Summary Judgment, Docket Entry No. 9,
p. 2.
30riginal Petition, Ex. 1 to Notice of Removal, Docket Entry
No. 1-2, ¶ 9.

B.

Undisputed Facts
Ramirez became a member at the Fitness USA facility in Baytown

on December 16, 2007, when she executed a Club Membership Agreement
("CMA"). 8

The following language is enclosed within a black bar on

the bottom of the first page of the CMA:

"RELEASE OF LIABILITY

BUYERfS RIGHT TO CANCEL."'

ASSUMPTION OF RISK

This text is larger

than the other text of the first page -- including the text that
appears below it

--

and equal in size and prominence to the text of

the other headings.

The following statement appears below the

heading :
Using the 24 Hour Fitness USA, Inc. (24 Hour) facilities
involves the risk of injury to you or your guest, whether
you or someone else causes it. Specific risks vary from
one activity to another and the risks range from minor
injuries to major injuries, such as catastrophic injuries
including death. In consideration of your participation
in the activities offered by 2 4 Hour, you understand and
voluntarilv accept this risk and aaree that 2 4 Hour . . .
will not b e liable for anv iniurv, including, without
limitation, personal, bodily, or mental injury, economic
loss or any damage to you . . . resulting from the
negligence of 2 4 Hour or anyone on 2 4 Hourfs behalf or
anyone using the facilities whether related to exercise
or not.l o

8~lub
Membership Agreement ("CMA"), Ex. B to Fitness USA's
Motion for Summary Judgment, Docket Entry No. 9-2; Plaintiff
Kimberly Ramirezfs Response to 24 Hour Fitness USA, Inc.'s Motion
for Summary Judgment ("Ramirez's Response"), Docket Entry No. 13,
p. 8.
'CMA, Ex. B to Fitness USA's Motion for Summary Judgment,
Docket Entry No. 9-2.
'OCMA, Ex. B to Fitness USA's

Motion for Summary Judgment,
(continued. . . )

Ramirez read, understood, and signed the CMA immediately under the
above-quoted release of liability clause.ll

C.

Motion for Summary Judgment
Fitness USA moved for summary judgment, arguing that it is

entitled to judgment as a matter of law because the release of
liability clause encompasses the claims asserted in the Original
petition.12 Fitness USA argues that the release satisfies the Texas
fair notice requirements and is therefore enforceable.13 Disputing
this

characterization,

Ramirez

contends

that

the

"ambiguous," "misleading," and "inconspicuous."I4

release

is

Ramirez also

contends that, even if the release complies with the fair notice
requirements, the release is unconscionable or constitutes an
invalid contract of adhesion.15

lo

(

Ramirez further argues that the

. . .continued)

Docket Entry No. 9-2. Ramirez refers to this portion of text as
the "CMA." Ramirez's Response, Docket Entry No. 13, p. 8. To
avoid confusion the court will refer to the entire membership
agreement as the "CMA," and to this portion of text within the CMA
as the "release of liability clause" or the "release."
''oral and Videotaped Deposition of Kimberly Ramirez ("Ramirez
Deposition"), Ex. C to Fitness USA's Motion for Summary Judgment,
Docket Entry No. 9-3, pp. 47:4-48:8; Ramirez's Response, Docket
Entry No. 13, p. 8.
12~itness
USA's Motion for Summary Judgment, Docket Entry No.
9, p. 5.

l4~amirez1s
Response, Docket Entry No. 13, pp. 15-21.

release is unenforceable because Fitness USA retained the right to
unilaterally modify the agreement.16
11.

A.

Applicable Law

Summary Judgment Standard

Rule 56 of the Federal Rules of Civil Procedure mandates
summary judgment "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
Fed. R. Civ. P. 56 (a).

judgment as a matter of law."

A party

moving for summary judgment "bears the burden of identifying those
portions of the record it believes demonstrate the absence of a
genuine issue of material fact."

Lincoln Gen. Ins. Co. v. Revna,

401 F.3d 347, 349 (5th Cir. 2005).

Where the plaintiff bears the

burden of proof at trial, a defendant moving for summary judgment
may satisfy its burden by "'showingf -- that is, pointing out to
the district court -- that there is an absence of evidence to
support the [plaintiff]' s case."
S. Ct. 2548, 2554 (1986).

Celotex Corp. v. Catrett, 106

Where a defendant moves for summary

judgment based on an affirmative defense, however, the defendant
"'must establish each element of that defense as a matter of law.'"
Shanks v. AlliedSisnal, Inc., 169 F.3d 988, 992 (5th Cir. 1999)
(quoting Crescent Towins
741, 744

&

Salvase Co., Inc. v. M/V Anax, 40 F.3d

(5th Cir. 1994)).

Once the movant has carried this

burden, the nonmovant must show that specific facts exist over

which there is a genuine issue for trial.

Revna, 401 F.3d at 349

(citing Celotex, 106 S. Ct. at 2553-54).

The nonmovant may not

rest upon mere allegations in the pleadings to make such a showing.
Reyna, 401 F.3d at 350.

To create a genuine fact issue, more than

some "metaphysical doubt as to the material facts" is required.
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 106 S. Ct.
1348, 1356 (1986).
The parties may support the existence or nonexistence of a
genuine fact issue by either (1) citing to particular parts of the
record, including depositions, documents, electronically stored
information, affidavits or declarations, admissions, and interrogatory answers, or

(2) showing that the materials cited do not

establish the absence or presence of a genuine dispute or that an
adverse party cannot produce admissible evidence to support the
fact. Fed. R. Civ. P. 56 (c)(1)(A) (B). In reviewing this evidence
"the court must draw all reasonable inferences in favor of the
nonmoving party, and it may not make credibility determinations or
weigh the evidence."

Reeves v. Sanderson Plumbins Prods., Inc.,

120 S. Ct. 2097, 2110 (2000).
B.

Releases of Liability

Under Texas law a release of liability "operates to extinguish
the claim or cause of action as effectively as would a prior
judgment between the parties and is an absolute bar to any right of
action on the released matter."

Dresser Indus., Inc. v. Paqe

Petroleum, Inc., 853 S.W.2d 505, 508 (Tex. 1993).

The Supreme

Court of Texas has defined a release as a contract in which "'one
party assumes the liability inherent in a situationr" and "'agrees
to hold the other without responsibility for damage or other
liability arising out of the transaction involved.'"
Black's Law Dictionary 658 (5th ed. 1979)).
is an affirmative defense.

I . (quotinq
d

Release of liability

Dresser, 853 S.W.2d at 508.

To be enforceable under Texas law a release must comply with
two fair notice requirements: the express negligence doctrine and
the

conspicuousness

requirement.

- at 509.
Id.

The

express

negligence doctrine requires that the intent of the parties "be
specifically stated in the four corners of the contract."
&

Processors, Inc. v. Reves, 134 S.W.3d 190, 192

Storase

(Tex. 2004)

(internal quotation marks omitted). To satisfy the conspicuousness
requirement "something must appear on the face of the contract to
attract the attention of a reasonable person when he looks at it.
Language may satisfy the conspicuousness requirement by appearing
in larger type, contrasting colors, or otherwise calling attention
to itself." - (internal quotation marks and marks of alteration
Id.
omitted).

Whether

the

release

satisfies

the

requirements is a question of law for the court.

fair

notice

Dresser Indus.,

853 S.W.2d at 509.
C.

Unconscionability and Contracts of Adhesion

Under Texas law a contractual release is unenforceable if "the

clause involved is so one-sided that it is unconscionable under the

circumstances existing when the parties made the contract."
Polv-America, L.P., 262 S.W.3d 337, 348
quotation marks omitted).

(Tex. 2008)

In re

(internal

The doctrine of unconscionability is

aimed at preventing "oppression and unfair surprise."

I . Whether
d

a contract is unconscionable is a question of law, and the party
asserting unconscionability bears the burden.

I.
d

In addressing a claim of unconscionability the court considers
both the procedural and substantive aspects of the agreement. Ponv
Express Courier Corp. v. Morris, 921 S.W.2d 817, 821 (Tex. App.-San
Antonio 1996, no writ.). Procedural unconscionability concerns the
facts surrounding the bargaining process -- i.e., how the parties
arrived at the terms in question.

I.
d

"

[TIhe circumstances
Ski River Dev.,

surrounding the negotiations must be shocking."

Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex. App.-Waco
pet.).
the

2005, no

Substantive unconscionability focuses on the fairness of

agreement

itself

and

whether

there

existed

legitimate

commercial reasons to include the terms in question. Ponv Express,
921 S.W.2d at 821.
contract

must

unconscionability.

A party asserting unconscionability of a

prove

both

procedural

and

substantive

Ski River, 167 S.W.3d at 136.

A contract of adhesion is "a standardized contract form for

consumer goods and services that are offered on a 'take it or leave
itf basis without affording the consumer a realistic opportunity to
bargain and under such conditions that consumer cannot obtain the

desired product or services except by acquiescing."

Dillee v.

Sisters of Charity of the Incarnate Word Health Care Svs., 912
S.W.2d 307, 309 n.4 (Tex. App.-Houston [14th Dist.] 1995, no writ.)
(citins Black's Law Dictionary 38 (5th ed. 1979)).
adhesion "are not automatically unconscionable."

Contracts of

In re U.S. Home

C O ~ P . ,236 S.W.3d 761, 764 (Tex. 2007). A disparity in bargaining
power may render an agreement unconscionable "when one party has no
real choice in accepting the terms of the agreement."
S.W.2d at 309.

Dillee, 912

No such unconscionability exists, however, "where

a claimant has freedom of choice in entering into the agreement."
Id

see also Allrisht, Inc. v. Elledqe, 515 S.W.2d 266, 267-68

I .

(Tex. 1974) ("If the written agreement is signed

. . .

and if there

is no circumstance that would deprive him of a freedom of choice

. . .

we see no satisfactory cause for avoiding the terms of the

contract."

.
111.

Analvsis

Fitness USA must establish that the release of liability
clause is enforceable as a matter of law. See Shanks, 169 F.3d at
992.

Fitness USA must also show that there is an absence of

evidence to

support Ramirez's

unconscionable.

assertion that

Celotex, 106 S. Ct. at 2554.

the

release is

A.

Fair Notice Requirements

To

establish

that

the

release

of

liability

clause

is

enforceable Fitness USA must show that the release of liability
clause satisfies the two fair notice requirements.

Fitness USA

argues that the release complies with the first requirement -- the
express negligence doctrine -- because

"

[tlhe release expressly

lists 'negligencef as a claim being relinquished by Ramirez."17
Seizing on the language providing that use of the Fitness USA
facilities "involves the risk of injury to you or your guest,
whether you or someone else causes it," Ramirez disputes the
satisfaction of this doctrine.18

Ramirez argues that the term

"someone else" is "ambiguous and misleading" because that term does
not explicitly include Fitness USA."

Ramirez therefore argues that

the contract does not expressly release Fitness USA from liability
for injuries caused by

Fitness USA.20

Ramirez

stated in an

affidavit that this was her understanding when she signed the CMA.
The release explicitly bars actions for injuries "resulting
from the negligence of [Fitness USA] or anyone on [Fitness USAIfs
behalf or anyone using the facilities whether related to exercise

"~itness USA's Motion for Summary Judgment, Docket Entry No.
9, p. 6.
18~amirezrs
Response, Docket Entry No. 13, p. 16.

or n t " '
o.'

Ramirezrs claims, which arise out of alleged injuries

resulting from

the negligence

expressly barred.

of

Fitness USA,

are

therefore

The fact that Ramirez may have had a different

interpretation of the release is immaterial. See In re Delmar "Bo"
McKinnev,

167

S.W.3d

833,

835

(Tex. 2005)

("Absent

fraud,

misrepresentation, or deceit, a party is bound by the terms of the
contract he signed, regardless of whether he read it or that it had
different terms." )
parties to bar

.

The court concludes that the intent of the

actions such as those brought by

Ramirez

"specifically stated in the four corners of the contract."
Reves, 134 S.W.3d at 192.

is

See

Fitness USA has thus met its burden to

show that the express negligence doctrine is satisfied as a matter
of law.
Fitness USA argues that the release is

conspicuous" under

Texas law for the following reasons:
(1) the provision is on the front page of the [CMA];
(2) the heading ("RELEASE OF LIABILITY") is clear and
unambiguous, and it is formatted in bold,
capitalized typeface larger than the text around it;
(3) the heading is also positioned in a box with a
contrasting background which serves to highlight the
heading;
(4) the release of liability clause is located
immediately above where Ramirez signed the [CMA];
and

''CMA,
EX. B to Fitness USA's Motion for Summary Judgment,
Docket Entry No. 9-2 (bolding and underlining omitted).

(5) pertinent portions of the release are formatted to
be bold, underlined, or bold and ~nderlined.~'
Ramirez contends that the font size of the release is too small to
Ramirez asserts that the release is written in
be ~ o n s p i c u o u s . ~ ~
8-point font and 9-point font, below a minimum standard found in
TEX. BUS. & COMM.CODE § 601.052 .24 Ramirez also argues that Fitness
USA "de-emphasized" the most important terms of the release, a
"tactic

[that]

renders

the

express

'negligencef

language

inconspi~uous
.
Several aspects of the release of liability clause contribute
to its conspicuousness. The heading appears in capital letters in
a box with a contrasting background, and is written in plain
language ("RELEASE OF LIABILITY") .

The language of the release

itself is in a font size no smaller than that of the other
substantive provisions on the page.

Ramirez's contention that the

release appears in 8-point font and 9-point font is not supported
by any competent summary judgment evidence.

Regardless of the

specific point value, however, the release is of sufficient size to
satisfy the conspicuousness requirement.

The 10-point minimum

standard provided in TEX. BUS. & COMM.CODE § 601.052 governs notices

22~itness
USA's Motion for Summary Judgment, Docket Entry No.
9, p. 7.
23~amirez's
Response, Docket Entry No. 13, pp. 17-20.
2
4
&

at 19.

of a consumer's

right to cancel a consumer transaction, not

releases of liability, and therefore does not control this case.
The most important terms of the release are bolded, underlined, or
both.

The fact that the phrase "the negligence of [Fitness USA]"

is bolded but not underlined does not de-emphasize that language as
Ramirez

contends.

Furthermore, Ramirez

cites

no

authority

providing that the phrase must be bolded and underlined for the
release to be enforceable.

In sum, the court concludes that the

release is sufficiently conspicuous so as to "attract the attention
of a reasonable person when he looks at it."
at

192.

Fitness USA has

See Reves, 134 S.W.3d

therefore sustained its burden

to

establish that both fair notice requirements are satisfied as a
matter of law.
B.

Unconscionability and Adhesion

Ramirez, as the party asserting unconscionability, bears the
burden of proof on this issue.

Polv-America, 262 S.W.3d at

348. To prove unconscionability at trial Ramirez would be required
to show both procedural and substantive unconscionability. See Ski
River, 167 S.W.3d at 136.

At the summary judgment stage Fitness

USA, as the moving party, bears the burden of pointing out that
there is an absence of evidence to support unconscionability. See
Celotex, 106 S. Ct. 2554.
Ramirez

argues

unconscionable because

that
the

the

agreement

negotiation
-13-

is

process

procedurally
"pit [ted] un-

educated Ramirez against a c ~ r p o r a t i o n . " ~ Fitness USA responds
~
that "an imbalance in the relative sophistication of the parties is
insufficient on its own to render an agreement uncon~cionable."~'
The court agrees.

Nothing about the process by which the parties

entered into the agreement is "shocking."
S.W.3d at 136.

- Ski River, 167
See

The mere fact that Ramirez did not graduate from

high school does not render the agreement unconscionable. Ramirez
admits that she read and understood the agreement.28 Moreover, the
non-negotiable nature of the release does not in itself show
unconscionability.

While the CMA may be a contract of adhesion,

there is no indication that Ramirez was deprived of the freedom of
choice in deciding whether to enter into the contract.
912 S.W.2d at 309.

See Dillee,

The limited workout options available to

~amirez'~ not create a situation in which Ramire= was confronted
did
with "no real choice in accepting the terms of the agreement."

See

id.
- Ramirez offers no further evidence in support of procedural
unconscionability.

27~efendant Hour Fitness USA, Inc.'s Reply in Support of Its
24
Motion for Summary Judgment ("Fitness USA's Reply"), Docket Entry
No. 14, p. 9.
28~amirez
Deposition, Ex. C to Fitness USA's Motion for Summary
Judgment, Docket Entry No. 9-3, p. 48:l-4.

291d. 22 ("Finally, it should be remembered that Ramirez
at
lives out in Baytown and her workout options were limited. She
should not have to give away her rights to have a decent place to
workout." ) .

As to substantive unconscionability Ramirez contends that
"there surely is a public policy in favor of seeing to it that
folks have reasonable access to a safe and clean facility and to
retain the right to hold the facility accountable for failing to
provide

. . .

a safe and clean workout facility."30 But a release

of liability for negligence does not make the contract so grossly
one-sided as to be unconscionablel and Ramirez cites no authority
otherwise.

There is no "oppression or unfair surprise" to be

prevented in this case.
burden

to

show the

Fitness USA has therefore satisfied its

absence of

evidence

supporting Ramirez's

assertion of unconscionability. The court concludes as a matter of
law that the release is not uncon~cionable.~~

IV.

Conclusion and Order

Fitness USA has shown as a matter of law that the release of
liability clause contained in the CMA is enforceable under the fair

30~amirez
Response, Docket Entry No. 13, p. 22.
3 1 ~ h court also rejects Ramirez's argument that the release
e
is unenforceable because Fitness USA retained the right to
unilaterally modify the agreement.
Ramirez's Response, Docket
Entry No. 13, p. 15.
Ramirezfs reliance on Carev v. 24 Hour
Fitness USA, Inc., 669 F.3d 202 (5th Cir. 2012), is misplaced.
Carev involved the effectiveness of an arbitration provision that
reserved an employerfs right to unilaterally modify the arbitration
provision itself. I . at 206. The court declines to extend this
d
arbitration-specific holding to the release at issue here.
Moreover, Fitness USA has not reserved the right to modify the CMA
generally or the release specifically, but only the right to modify
its "policies and any club rule." CMA, Ex. B to Fitness USAfs
Motion for Summary Judgment, Docket Entry No. 9-2.

notice requirements and is not unconscionable. The court therefore
concludes that Fitness USA has satisfied its burden to show that
there is no genuine dispute as to any material fact in this case.
Accordingly Fitness USArs Motion for Summary Judgment (Docket Entry
No. 9) is GRANTED.
SIGNED at Houston, Texas, on this 16th day of May, 2013.

1
SIM LAKE

UNITED STATES DISTRICT JUDGE