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DiGangi v. 24 Hour Fitness USA6/10/2005
Before Justices Whittington, FitzGerald, and Richter
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 t
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