Swindle v. Body Blasters Gym, Inc.

728 So. 2d 977, 1999 La. App. LEXIS 438, 1999 WL 92655
CourtLouisiana Court of Appeal
DecidedFebruary 24, 1999
DocketNo. 31,549-CA
StatusPublished
Cited by1 cases

This text of 728 So. 2d 977 (Swindle v. Body Blasters Gym, Inc.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Swindle v. Body Blasters Gym, Inc., 728 So. 2d 977, 1999 La. App. LEXIS 438, 1999 WL 92655 (La. Ct. App. 1999).

Opinion

1 iPEATROSS, J.

In this negligence action, Plaintiff, Peggy Swindle (Ms. Swindle), appeals the jury’s verdict in favor of Body Blasters Gym, Inc. (Body Blasters) finding Body Blasters was not negligent; the jury found that Body Blasters adequately warned Ms. Swindle of the dangers of exposure to the ultraviolet light in a tanning bed when taking certain medications. For the reasons stated herein, we affirm.

FACTS

On April 4, 1994, Ms. Swindle joined Body Blasters, a local fitness center in Shreveport; and, on that date, she executed a contract which allowed her to use Body Blasters’ workout facilities and equipment. Body Blasters also offers tanning facilities, and in May 1994, Ms. Swindle decided to utilize the gym’s tanning bed. Her first exposure was on May 31, 1994. Ms. Swindle then prepaid for 300 minutes of tanning. On June 1, June 2, June 3 and June 5 she had tanning sessions without incident. On June 8, 1994, however, Ms. Swindle tanned a sixth time, and shortly after completing this tanning session, she noticed that her skin was purple. Dr. Jack Resneck, a local dermatologist, diagnosed Ms. Swindle with vasculitis related to her exposure to the ultraviolet light. At the time of her sixth tanning session, Ms. Swindle had been prescribed six different medications: Lortab/Lorcet, Phenergan, Est-race, Soma, Mepergan and Aldactazide.

At the close of Plaintiffs evidence, the trial court granted Body Blasters’ motion for directed verdict dismissing Plaintiffs claim that the tanning bed was defective or unreasonably dangerous. Only the issue of the adequacy of Body Blasters’ warning, concerning tanning while on medication, went to the jury. The jury found in favor of Body Blasters and it is from that verdict that Ms. Swindle appeals.

[979]*979 J¿DISCUSSION

At trial, Ms. Swindle denied ever having seen or received any Warnings relating to the dangers of tanning while taking certain medications. On appeal, however, Ms. Swindle, apparently now conceding the existence of warnings, complains that the warnings given were inadequate. Since Body Blasters’ Rules and Regulations, which contained warnings concerning tanning, did not contain the exact language of the Tanning Facility Regulation Act (TRFA), Ms. Swindle asserts that (1) Body Blasters was not in compliance with the statute and such noneompliance is negligence per se; and (2) Body Blasters is, therefore, liable because Body Blasters’ negligence was the cause of her condition. Ms. Swindle’s claim fails on both counts.

NEGLIGENCE OF BODY BLASTERS

Whether a particular warning is adequate is a question for the trier of fact. Bloxom v. Bloxom, 512 So.2d 839 (La.1987); Cannon v. Cavalier Corp., 572 So.2d 299 (La.App. 2d Cir.1990). A court of appeal may not set aside a jury’s finding of fact in the absence of “manifest error” or unless it is “clearly wrong,” and where there is conflict in the testimony, reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the appellate court may feel that its own evaluations and inferences are as reasonable. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

Section 2702 of the TRFA includes the legislature’s finding that “[c]ertain medications, cosmetics, and foods are ‘photosensi-tizing’, which means that in some people they react unfavorably to ultraviolet light, producing skin rashes or burns.” Section 2714 of the TRFA provides that:

IgA. The tanning facility operator shall provide each consumer, receipt of which is acknowledged by the consumer, prior to initial exposure, a written statement warning that:
(4) Abnormal skin sensitivity or burning may be caused by reactions of ultraviolet light to certain:
(C) Medications, including tranquilizers, diuretics, antibiotics, high blood pressure medicines, and oral contraceptives.

Section 2710 of the TRFA provides the language for warning signs at a tanning facility:

B. The sign required by this Section shall be printed in upper and lower case letters which are at least one-half inch and one-quarter inch in height, respectively, and shall contain the following warnings:
“DANGER — ULTRAVIOLET RADIATION
—Follow Instruction.
—Avoid overexposure. As with natural sunlight, repeated exposure to ultraviolet radiation can cause chronic sun damage characterized by premature aging of the skin, wrinkling, dryness, fragility and bruising of the skin, and skin cancer.
—Wear protective eyewear.
FAILURE TO USE PROTECTIVE EYEWEAR MAY RESULT IN SEVERE BURNS OR PERMANENT INJURY TO THE EYES.
—Medications or cosmetics may increase your sensitivity to the ultraviolet radiation. Consult a physician before using sunlamp or tanning equipment if you are using medications or have a history of skin problems or believe that you are especially sensitive to sunlight. Pregnant women or women taking oral contraceptives who use this product may develop discolored skin.
IF YOU DO NOT TAN IN THE SUN YOU ARE UNLIKELY TO TAN FROM THE DUSE OF ULTRAVIOLET RADIATION OF TANNING EQUIPMENT.”

The contract executed by Ms. Swindle on April 4, 1994, contained an acknowledgment of her receipt of Body Blasters’ Rules and Regulations. Paragraph No. 4 of the “Tanning Rules” reads in pertinent part:

[980]*980Tanning beds may cause adverse reactions when combined with some medications. Please consult your physician.

Ms. Swindle acknowledged, by her signature on the contract, receipt of the above written rules prior to her initial exposure in the tanning bed. As previously stated, Ms. Swindle asserts that because the language of Body Blasters’ warning was not identical to the language of the statute, the warning was inadequate. We disagree.

The legislature clearly expressed its concern for the safety of tanning facility operations by finding that certain medications may cause photosensitive reactions when the individual is exposed to ultraviolet light. It is certainly not possible for the statute to list all medications which have potential photo-toxic effects, and we believe that the legislature’s concern is addressed by the warning as given by Body Blasters in its Rules and Regulations. The warning advised that some medications may cause adverse effects under exposure to ultraviolet light and advised the customer to consult a physician. We find the warning to be adequate to alert someone who is taking medication to seek further medical advice prior to exposing themselves to the ultraviolet light in a tanning bed. Reading Section 2714 alone, we find no indication in the plain language of the statute that the warning must track the statutory language verbatim. Moreover, laws on the same subject are to be read and interpreted in pari materia. La. C.C. art. 13.

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Bluebook (online)
728 So. 2d 977, 1999 La. App. LEXIS 438, 1999 WL 92655, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swindle-v-body-blasters-gym-inc-lactapp-1999.