IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 13-20322

Summary Calendar

KIMBERLY RAMIREZ,

Plaintiff - Appellant

v.

24 HOUR FITNESS USA, INCORPORATED; 24 HOUR FITNESS,

Defendants - Appellees

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:12-CV-1922

Before DAVIS, SOUTHWICK, and HIGGINSON, Circuit Judges.

PER CURIAM:*

Kimberly Ramirez claims to have suffered injuries when she slipped and 

fell at a 24 Hour Fitness gym. She sued 24 Hour Fitness in state court, and 24 

Hour Fitness removed the case to federal court based on diversity jurisdiction. 

24 Hour Fitness then moved for summary judgment because Ramirez signed a 

membership agreement that released it from liability for personal injury 

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not 

be published and is not precedent except under the limited circumstances set forth in 5TH 

CIR. R. 47.5.4.

United States Court of Appeals

Fifth Circuit

FILED

December 16, 2013

Lyle W. Cayce

Clerk

 

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claims caused by its negligence. The district court granted summary 

judgment. Ramirez appeals the district court’s decision. We AFFIRM.

“We review a district court’s grant of summary judgment de novo.” Reed 

v. Neopost USA, Inc., 701 F.3d 434, 438 (5th Cir. 2012). Ramirez asserts five 

issues on appeal, which can be grouped into three: whether the membership 

agreement is illusory; whether the release of liability clause is unconscionable; 

and whether the release of liability clause fails to comply with Texas’s fair 

notice requirements. These are issues of law reviewed de novo. See

Vandeventer v. All Am. Life & Cas. Co., 101 S.W.3d 703, 720 (Tex. App. – Fort 

Worth 2003) (illusory); In re Poly-America, L.P., 262 S.W.3d 337, 349 (Tex. 

2008) (unconscionable); Dresser Indus., Inc. v. Page Petroleum, Inc., 853 

S.W.2d 505, 509 (Tex. 1993) (fair notice).

Ramirez’s first argument, that the membership agreement was illusory, 

relies on our holding in Carey v. 24 Hour Fitness, USA, Inc., 669 F.3d 202 (5th 

Cir. 2012). There, we held that an agreement to arbitrate in the 24 Hour 

Fitness employee handbook was illusory because the employer retained the 

“right to revise, delete, and add to the employee handbook” without providing 

meaningful notice to the employee. Carey, 669 F.3d at 206, 209. In this case, 

24 Hour Fitness included related language in its membership agreement by 

retaining the right “to modify the policies and any club rule without notice at 

any time.” Ramirez contends that this language means her agreement with 24 

Hour Fitness was also illusory.

As an initial matter, the district court here noted that Carey resolved an 

arbitration dispute between an employer and employee. It correctly concluded 

that Carey expressed an “arbitration-specific” holding, not readily applicable 

to the enforceability of a release of liability agreement. Carey’s basic concern 

was that one party should not be allowed to negate a promise by retaining the 

right to alter that promise: “Thus, the fundamental concern driving this line of 

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case law is the unfairness of a situation where two parties enter into an 

agreement that ostensibly binds them both, but where one party can escape its 

obligations under the agreement by modifying it.” Id. at 209. Carey applied 

law that invalidated arbitration agreements when the writer of the agreement 

could unilaterally decide not to be bound by it. Id. at 205. The release of 

liability provision, though, is not a mutual release; it already was one-sided. 

Regardless, 24 Hour Fitness did not retain the right to invalidate the 

release of liability agreement. In Carey, the language in the contract clearly 

gave 24 Hour Fitness the right to modify its employee handbook at any time 

and for any reason, and therefore it was able to alter terms of employment with 

its employees. Id. at 206. The language in the release provision is not so broad.

24 Hour Fitness only retained the right to modify its “policies” and “rules.” The 

membership agreement does not define those terms or otherwise indicate that 

releasing 24 Hour Fitness from liability for its negligence qualifies as a policy 

or rule. Whatever the effect of 24 Hour Fitness’ right, we agree with the district 

court that it does not give 24 Hour Fitness the right to modify the agreement’s

terms generally or the release of liability clause specifically. Because there is 

no danger that 24 Hour Fitness would or could amend or terminate Ramirez’s 

agreement to release it from liability, the release is not unenforceable for this 

reason. See In re 24R, Inc., 324 S.W.3d 564, 566-67 (Tex. 2010).

Next, Ramirez contends that the agreement is unconscionable. She first

appears to argue that the clause is procedurally unconscionable because her 

schedule provided limited gym options. That created a situation in which she 

felt forced to sign the membership agreement in order to maintain her health. 

Ramirez admits in her briefing, though, that she had other, perhaps less 

desirable, exercise options. There were other exercise facilities available in her 

area, and she could have exercised without the use of a gym. Instead, she chose 

to use the facilities at 24 Hour Fitness, which included releasing the company 

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from liability as a condition for membership. The district court correctly 

reasoned that Ramirez was free not to sign the agreement. See Allright, Inc. v. 

Elledge, 515 S.W.2d 266, 267 (Tex. 1974) (Reavley, J.). 

Ramirez also appears to assert that the clause was substantively 

unconscionable by comparing the clause in the membership agreement to the 

exculpatory clause in Crowell v. Housing Authority of City of Dallas, 495 

S.W.2d 887 (Tex. 1973). In Crowell, the Texas Supreme Court invalidated a 

clause that purported to release the Dallas Housing Authority from premises

liability. Id. at 889. That decision was founded on the public policy concern

that entities like the Dallas Housing Authority should not be able to release

themselves “from liability for negligence in the performance of their duty of 

public service.” Id. There are no such public policy concerns here. 24 Hour 

Fitness is a private gym which Ramirez chose to join. Ramirez bargained away 

any potential recovery in exchange for the conveniences offered by 24 Hour 

Fitness.1 That agreement is not so obviously shocking or gross that it is 

unenforceable. Ski River Dev., Inc. v. McCalla, 167 S.W.3d 121, 136 (Tex. App.

– Waco 2005). The district court correctly determined that Ramirez did not 

carry her burden of showing that the agreement was either procedurally or 

substantively unconscionable. Id.

Finally, Ramirez’s arguments about the text and language of the release 

are unconvincing, regardless of whether they are seen as arguments about fair 

notice or unconscionability. Ramirez parses the language of the clause in such 

a way as to suggest there is ambiguity. The district court correctly concluded 

1 24 Hour Fitness does not discuss what benefits Ramirez received by signing this 

agreement, but Ramirez does not argue that she did not receive any benefits from 24 Hour 

Fitness. The contract provides that Ramirez’s release was “consideration of [her] 

participation in the activities offered by 24 Hour.”

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that the clause contains the language necessary to comply with Texas’s fair 

notice requirements and was sufficiently clear to express its purpose. 

We also reject the arguments that Texas law required the release to be 

in a larger font size; that the font size was too small to be understood by 

Ramirez; or that the language was emphasized (by bold, but not completely 

underlined) in such a way as to confuse Ramirez as to its meaning. The district 

court pointed out that the font size was no smaller than the other membership 

provisions and the language was captioned with the larger phrases, 

“RELEASE OF LIABILITY · ASSUMPTION OF RISK,” which draws the 

reader’s attention to that portion of the contract. The district court did not err 

in finding that the clause was conspicuous and clear enough to be understood 

by Ramirez.

AFFIRMED.

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