IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

HAMMOND DIVISION

MICHELLE LEAL, )

)

Plaintiff, )

)

Vs. ) CASE NO.: 2:13-CV-00318-WCL-PRC

)

TSA STORES, INC. d/b/a THE )

SPORTS AUTHORITY, URBAN )

EXPRESS ASSEMBLY, LLC, )

And EAST COAST CYCLE )

SUPPLY, INC., )

)

Defendants. ) 

DEFENDANT, TSA STORES, INC. D/B/A THE SPORTS AUTHORITY’S, 

MEMORANDUM IN SUPPORT OF ITS MOTION FOR SUMMARY JUDGMENT

Comes now the Defendant, TSA Stores, Inc. d/b/a The Sports Authority (hereinafter 

“TSA”), and files this memorandum in support of its motion for summary judgment. For the 

reasons stated herein, there exists is no genuine dispute as to any material fact, and TSA is 

entitled to judgment as a matter of law.

I. Statement of Material Facts

TSA contends that the following facts are not genuinely disputed:

A. No warranties for the bicycle at issue were given to the plaintiff by TSA; and

B. TSA did not assemble the bicycle at issue.

II. Background

This case arises from a bicycle accident. On August 17, 2011, the Plaintiff, Michelle 

Leal, was riding a K2 Breeze bicycle purchased by her husband, Robert Leal, from TSA on a 

trail in Portage, Indiana, when the handlebars of the bike shifted suddenly, causing the Plaintiff 

to fall. Plaintiff’s Second Amended Complaint, ¶8. As a result of her fall, the Plaintiff contends 

that she was injured. Plaintiff’s Second Amended Complaint, ¶20. 
A. Purchase of the Bicycle from TSA

On July 27, 2011, approximately three weeks before the accident, Robert Leal purchased 

the K2 Breeze bicycle from TSA. Bicycle Sales/Repair Ticket No. 3126299. Robert had seen the 

bike previously while shopping at TSA with the Plaintiff. Deposition of Robert Leal, P. 11, L. 

10-15. At that time, the Plaintiff told Robert that she liked the bike. Deposition of Robert Leal, 

P. 11, L. 10-15. Robert returned to the store two weeks later and bought the bicycle as a surprise 

for the Plaintiff. Deposition of Robert Leal, P. 11, L. 22-25, P. 12, L. 1-3.

When Robert arrived at TSA, he immediately walked to the area of the store where the 

bicycles were displayed and located the bike. Deposition of Robert Leal, P. 12, 7-14. The 

bicycle was already assembled and sitting on the sales floor. Deposition of Robert Leal, P. 12, L. 

18-22. Robert did not sit on the bike, take the bike for a test ride or otherwise test the soundness 

of the bicycle. Deposition of Robert Leal, P. 12, L.23-25, P. 13, L. 1-6. Robert did not ask the 

TSA sales associate any questions about the bike before he purchased it. Deposition of Robert 

Leal, P. 14, L. 3-5. 

Before Robert completed his purchase of the bicycle, a TSA sales associate performed a 

“point system check” of the bike. Deposition of Robert Leal, P. 13, L. 7-11. The TSA employee 

took the bicycle to the back of the store. Deposition of Robert Leal, P. 14, L. 22-23. Robert did 

not accompany the employee to the back of the store and was not present while the employee 

preformed the point system check. Deposition of Robert Leal, P. 14, L. 24-25, P. 15, L. 5-7. 

Once the check was complete, the TSA employee returned the bicycle to Robert and said he 

could pay for the bike. Deposition of Robert Leal, P. 15, L. 8-9, L. 16-20. Robert did not ask 

any questions of the TSA employee after the check was complete. Deposition of Robert Leal, P. 

15, L. 13-15.

Robert paid for the bicycle, a total price of $249.97. Bicycle Sales/Repair Ticket No. 

3126299. In the process of purchasing the bicycle, Robert received a Bicycle Sales/Repair 

Ticket (“Ticket”). Bicycle Sales/Repair Ticket No. 3126299. Robert filled in his name, address 

and telephone number on the Ticket. Deposition of Robert Leal, P. 16-24. A sales associate 

filled in the description of the bicycle that Robert purchased. Bicycle Sales/Repair Ticket No. 

3126299. Robert signed and dated the Ticket under a section entitled, “Agreement”. Bicycle 

Sales/Repair Ticket No. 3126299. Robert did not read the Ticket before he signed it. Deposition 

of Robert Leal, P. 19, L. 2-8.
Robert admits that nothing prevented him from reading the Ticket before he signed the 

document under the section entitled, “Agreement”. Deposition of Robert Leal, P. 19, L. 18-20. 

Robert further admits that he had no reason for not reading the Ticket. Deposition of Robert 

Leal, P. 19, L. 21-23.

The Ticket given to Robert at the time he purchased the bicycle contained another section 

entitled, “Release Agreement Bike Repair & Sale Only”. Bicycle Sales/Repair Ticket No. 

3126299. That section of the Ticket set forth various paragraphs, each of which was followed by 

a blank line and a statement that read, “Please Initial”. Bicycle Sales/Repair Ticket No. 3126299. 

Robert admits that he wrote his initials next to each of the paragraphs and signed the “Release 

Agreement Bike Repair & Sale Only” section at the end. Deposition of Robert Leal, P. 20, l. 3-

8, P. 21, L. 3-14. However, again, he did not read each of the paragraphs contained in that 

section of the Ticket before he initialed and signed the document. Deposition of Robert Leal, P. 

20, L. 11-13. Robert further admitted that nothing prevented him from reading the paragraphs 

contained in the Ticket before he initialed the document. Deposition of Robert Leal, P. 20, L.25, 

P. 21, L. 1-2.

After completing the purchase, Robert loaded the bicycle into his Dodge Caravan and 

drove the bike to his house. Deposition of Robert Leal, P. 22, L. 5-14. Once home, Robert 

brought the bicycle into his house and placed it in the bedroom. Deposition of Robert Leal, P. 

23, L. 9-12. Robert surprised the Plaintiff with the bike later the same day. Deposition of Robert 

Leal, P. 24, L. 11-16.

B. Bicycle Sales/Repair Ticket

Robert Leal completed a Bicycle Sales/Repair Ticket (“Ticket”) as part of his purchase of 

the bicycle. Bicycle Sales/Repair Ticket No. 3126299. In addition to customer information and a 

description of the bicycle purchased, the Ticket contains a release agreement. Bicycle 

Sales/Repair Ticket No. 3126299. The release agreement is captioned with the statement, 

“Please Read Carefully Before Signing” and sets forth the following:

I accept for use AS IS the equipment listed on this form and accept full responsibility for 

the care of the equipment. I have made no misrepresentations to this bicycle shop 

regarding my intended usage and riding ability.

Please Initial: __________
I understand and am aware that bicycling is a HAZARDOUS activity. I understand that 

the sport of bicycling and the use of this bicycle equipment involves a risk of personal 

injury to any and all parts of my body and that physical injury is a common occurrence of 

this sport. I freely and expressly assume and accept any and all risks of injury or death 

resulting from the use of this equipment.

Please Initial: __________

I agree that I hereby release this bicycle shop, the equipment manufacturer, and 

distributor, from any and all responsibility of liability for physical injuries to myself or 

others or property damage resulting from the use of this equipment. Except to the extent 

that such claim might be based on the sole and exclusive negligence of this bicycle shop. 

I agree NOT to make a claim against or use this bicycle shop, the equipment 

manufacturer, and distributor for injuries or damages relating to bicycling and/or the use 

of this equipment.

Please Initial: __________

There are NO WARRANTIES, express or implied, including the implied warranty of 

merchantability, which extended beyond the description of the bicycle equipment listed

on this form.

I have carefully read this agreement and release of liability and fully understand its 

contents. I am aware that this is a release of liability and a contract between myself and 

this bicycle shop and I sign it of my own free will. This agreement shall be effective and 

binding upon the parties hereto:

Please Initial: __________

Bicycle Sales/Repair Ticket No. 3126299

The Ticket was initialed under each paragraph and signed twice by Robert Leal at the time he 

purchased the bike. Bicycle Sales/Repair Ticket No. 3126299.

On August 17, 2011, the Plaintiff was riding the bicycle on a trail in Portage, Indiana, 

when the handlebars of the bike shifted suddenly, causing the Plaintiff to fall. Plaintiff’s Second

Amended Complaint, ¶8. The Plaintiff had ridden the bicycle at least twice before her fall. 

Deposition of Robert Leal, P. 30, L. 1-4. 
III. Argument

A. Standard of Review

A party may move for summary judgment, identifying each claim or defense on which 

summary judgment is sought. Fed.R.Civ.P. 56(a). The court shall grant summary judgment if 

the movant shows that there is no genuine dispute as to any material fact and the movant is 

entitled to judgment as a matter of law. Id. 

A party seeking judgment bears the initial responsibility of informing the court of the 

basis for the motion, and identifying “those portions of ‘the pleadings, depositions, answers to 

interrogatories, and admissions on file, together with the affidavits, if any, which it believes 

demonstrate the absence of a genuine issue of material fact’.” Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986). This burden may be discharged by showing that there is an absence of 

evidence to support the nonmoving party’s case. Id. at 325. The moving party may, if it 

chooses, support its motion for summary judgment with affidavits or other materials and thereby 

shift to the non-moving party the burden of showing that an issue of material fact exists. Kaszuk 

v. Bakery & Confectionary Union & Indus. Int’l Pension Fund, 791 F. 2d 548, 558 (7th Cir. 

1986).

Once a properly supported motion for summary judgment is made, the non-moving party 

cannot resist the motion merely by resting on its pleadings, but must instead come forward with 

specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., 475 

U.S. 574 (1986). 

B. No Warranties were given to the Plaintiff.

In her Second Amended Complaint, the Plaintiff contends that TSA impliedly warranted 

that the bicycle at issue was of merchantable quality and in the proper condition for the ordinary 

use for which it was designed and used by the Plaintiff. Plaintiff’s Second Amended Complaint, 

§17. The Plaintiff further contends that TSA breached those warranties as the bike was unsafe 

and not fit for the particular purpose for which it was intended. Plaintiff’s Second Amended 

Complaint, §18.

TSA gave no warranties with the purchase of the bicycle and sold the bike “as is”. The

language used by TSA to disclaim the implied warranties, including the warranties of 

merchantability and fitness for a particular purpose, was conspicuous and otherwise complied 

with Indiana law concerning the exclusion of warranties. Because the implied warranties were 
properly disclaimed, TSA could not have breached the warranties as alleged by the Plaintiff. 

Consequently, summary judgment for TSA should be granted.

Indiana law provides that, “Unless excluded or modified, a warranty that the goods shall 

be merchantable is implied in a contract for their sale....” I.C. 26-1-2-314. In order to exclude 

the warranty of merchantability, Indiana law requires the language of the exclusion to 

specifically mention the term “merchantability” and, if the warranty is in writing, the exclusion 

must be conspicuous. I.C. 26-1-2-316(2). In order to exclude an implied warranty of fitness, the 

exclusion must be in writing and must also be conspicuous. I.C. 26-1-2-316(2). The language 

used to disclaim the warranty of fitness is sufficient if it states, for example, “there are no 

warranties which extend beyond the description on the face hereof.” I.C. 26-1-2-316(2). All

implied warranties are excluded where the exclusion contains expressions such as, sold “as is”. 

I.C. 26-1-2-316(3)(a).

Indiana law has defined the term conspicuous to mean language that “when it is so 

written [that] a reasonable person against whom it is to operate ought to have noticed it.” I.C. 

26-1-1-201(10). Language used to exclude a warranty is conspicuous if “it is capitalized or in 

larger, or other contrasting, type or color”. I.C. 26-1-1-201(10). Whether a term or clause is 

conspicuous is a question of law for the court. Perry v. Gulf Stream Coach, Inc, et al., 814 

N.E.2d 634, 646 (Ind.Ct.App. 2004). 

In this case, TSA’s Bicycle Sales/Repair Ticket conspicuously excluded both the 

warranty of merchantability and warranty of fitness for a particular purpose. To that end, the 

Ticket contains a paragraph which states: 

 

There are NO WARRANTIES, express or implied, including the implied warranty of 

merchantability, which extended beyond the description of the bicycle equipment listed

on this form.

The Ticket’s exclusion of warranties is conspicuous. The Ticket contains the words “NO 

WARRANTIES” set out in capital letters while the remaining letters in the paragraph are written 

in lower case. The capital letters create a contrast in font that causes the “no warranties” 

language to stand out. The Ticket advises the purchaser to “PLEASE READ CAREFULLY 

BEFORE SIGNING” the terms of the sale, including the paragraph excluding all warranties. 

The Ticket then requires the purchaser to sign his initials indicating that he has read the warranty 
disclaimer. The exclusion language, written in capital letters, is sufficient to sufficiently

disclaim the warranties of merchantability and fitness. See, Perry v. Gulf Stream Coach, Inc, et 

al., 814 N.E.2d 634, 646 (Ind.Ct.App. 2004) (finding that, because the purchase agreement 

invited the plaintiffs to read the reverse side of the agreement coupled with the fact that the 

implied warranties disclaimer was contained in a paragraph entitled, “Warranties”, written in all 

capital letter and underlined, was a conspicuous disclaimer). 

In addition to the conspicuousness of the disclaimer, the Ticket mentions the term 

“merchantability” as required by statute to disclaim the warranty of merchantability. The Ticket 

also states that there are no warranties “which extend beyond the description of the bicycle listed 

on this form”, the precise language identified in the statute as sufficient to disclaim the warranty 

of fitness. Finally, the Ticket states that the purchaser accepts the bicycle “AS IS”, again, the 

language cited by statute as sufficient to disclaim all implied warranties.

The disclaimer of warranties contained in TSA’s Bicycle Sales/Repair Ticket are 

sufficient to disclaim the warranties of merchantability and fitness which otherwise would have 

been implied in the sale of the bicycle. Because those warranties have been properly disclaimed, 

TSA could not have breached the warranties. Therefore, TSA is entitled to summary judgment.

C. TSA did not assemble the bicycle at issue.

The Plaintiff contends that TSA negligently assembled the bicycle on which she was 

injured. Plaintiff’s Second Amended Complaint, ¶ 14. However, TSA had an exclusive 

agreement with Defendant, Urban Express Assembly, LLC (“Urban Express”), whereby Urban 

Express was to assemble all of the bicycles at TSA’s Merrillville store. In accordance with that 

exclusive agreement, TSA did not use its own employees to assemble bicycles, including the 

bike at issue in this case. 

On February 1, 2011, Urban Express entered into an agreement with TSA by which it 

agreed to provide TSA with delivery, assembly and installation services for TSA’s equipment, 

displays and consumer products. Delivery, Assembly and Installation Services Agreement dated 

February 1, 2011, Section 2 (A). That agreement contained an exclusivity provision by which 

the parties agreed that Urban Express would be the “sole and exclusive provider of Services with 

respect to the UX [Urban Express] Serviced Stores, including to the exclusion of Client’s 

[TSA’s] in-house employees...” Delivery, Assembly and Installation Services Agreement dated 

February 1, 2011, Section 2 (A). In accordance with that agreement, and during the relevant 
period of time related to the Plaintiff’s bicycle, all of the bicycles sold at TSA’s Merrillville store 

were assembled exclusively by Urban Express and/or its employee Guhlam Thomas. None of 

the bicycles sold at that time were assembled by TSA’s own employees. Affidavit of Don 

Schmiege. Moreover, the bicycle on which the Plaintiff contends that she was injured was not 

assembled by any employee of TSA. Affidavit of Don Schmiege.

As TSA did not assemble the bicycle in question due to its agreement with Urban 

Express, TSA owed no duty to the Plaintiff with regard to the bike’s assembly. Therefore, 

summary judgment should be granted in favor of TSA.

III. Conclusion

For the reasons set forth herein, TSA’s Motion for Summary Judgment should be 

granted. 

Respectfully submitted:

By: /s/ Daniel G. Suber____________________

Daniel G. Suber, #21173-45

Kathryn C. Adams, #30973-64

Attorneys for Defendant, TSA Stores, Inc. 

d/b/a The Sports Authority

DANIEL G. SUBER & ASSOCIATES

259 W. Indiana Avenue, Suite A

Valparaiso, Indiana 46383

Tel: (219) 548-2880

Fax: (219) 548-2881
Certificate of Service

I hereby certify that on the 7th day of January, 2015, I electronically filed the foregoing 

with the Clerk of the Court using the CM/ECF system which sent notification of such filing to 

the following:

Colby Barkes

Blachly, Tabor, Bozik & Hartman

56 S. Washington Street, Suite 401

Valparaiso, IN 46383

John W. Mervilde

Meils Thompson Dietz & Berish

Two Market Square Center

251 East Ohio Street, Suite 830

Indianapolis, IN 46204

Tracy S. Wetzstein

Kopka, Pinkus, Dolin & Eads, P.C.

9801 Connecticut Drive

Crown Point, IN 46307

Jessica Williams Schnelker

Frost Brown Todd LLC

201 N. Illinois St., Suite 1900

P.O. Box 44961

Indianapolis, IN 46244-0961

and I hereby certify that I have mailed by United States Postal Service the document to the 

following non CM/ECF participants: None.

s/ Daniel G. Suber

DANIEL G. SUBER

Attorney No. 21173-45

Daniel G. Suber & Associates

259 Indiana Avenue, Suite A

Phone: (219) 548-2880

Fax: (219) 548-2881 

Email: suberlawgroup@aol.com

Attorneys for Defendant

TSA Stores, Inc. d/b/a The Sports Authority