Lawyers Arguing When A Representation Is Made

Grand Prairie lawyers and lawyers in Fort Worth, Arlington, Mansfield, Irving, Hurst, Euless, Bedford, Grapevine, Garland, Mesquite, or anywhere else in Texas should understand when a representation is made in the context of a Deceptive Trade Practices Act (DTPA) claim for damages.
The Texarkana Court of Appeals issued an opinion in 1993, that provides guidance on this issue. The style of the case is, Dave Rickey v. Houston Health Club, Inc., d/b/a President & First Lady Health & Raquetball Club.
This is an appeal by Rickey from a summary judgment rendered against him in his suit against Houston Health Club (Health Club). Rickey alleged causes of action under both common law negligence theory and the DTPA for personal injuries sustained when he fell on the Health Club’s astroturf jogging track. Rickey contended the trial court erred because he has both a viable negligence action and a viable DTPA claim against the Health Club.
Here are some facts:
On November 6, 1988, Rickey entered into a retail installment contract with the Health Club that allowed him to use the Health Club’s facilities in exchange for an initiation fee of $616 and a monthly fee of $5.30. Rickey alleged that on March 4, 1990, he injured his knee when he tripped and fell on the Health Club’s indoor jogging track. The track was covered in astroturf, which Rickey claimed was an inappropriate surface for a track because of its tendency to catch and grab a runner’s shoe.
Legal Issues:
Rickey set out three DTPA causes of action alleging (1) that the Health Club violated Texas Business & Commerce Code, Section 17.46(b)(5) by representing that its jogging track had characteristics, uses, and benefits which it did not have, namely that it was safe for patron use; (2) that the Health Club violated Section 17.46(b)(7) by representing that the jogging track was of a particular standard or quality when it was not: and (3) that the Health Club violated Section 17.50(a)(2) by breaching an implied warranty insuring the suitability of the jogging track for its intended use.
Rickey did not allege that anybody with the Health Club made express verbal misrepresentations regarding the track, but an implied representation has been held to constitute a violation of the DTPA. Furthermore, the DTPA itself does not prohibit causes of action premised on implied representation. In this case, Rickey contended that since the Health Club held the astroturf track out as a jogging track, both at the facility and in its television advertisements, the Health Club implied that the track was safe for jogging.
Ruling This appeals court agreed with Rickey, that a representation was made. And the important point here, is that the representation was “implied” rather than express. And Rickey’s argument was that the representation was false and thus a misrepresentation which is actionable under the DTPA.
A lot of representations are common sense whether they are verbalized or written or not. Others are not so obvious and thus for a jury to decide. In this case, the court essentially said this was an issue for a trier of fact to decide and not a case that was appropriate for summary judgment.
This case and others like it are valuable to attorneys in understanding how the courts look at these situations. Understanding them makes for a better job of counseling clients on the merits of cases they bring to the attorney.

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