ROLAND et al v. SHREVE et al

Filing 34

ORDER denying 15 Motion for Partial Summary Judgment; granting 17 Motion for Summary Judgment. Ordered by Judge Clay D. Land on 07/08/2013.(aaf)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
COLUMBUS DIVISION
ANN ROLAND and MARK ROLAND, *
Individually and as Parents and
Natural Guardians of A.R., a *
Minor,
*
Plaintiffs,
*
vs.
*
CHRISTINE
SHREVE
and
THOMAS
BOWERSOX,
*
Defendants.

CASE NO. 4:12-CV-109 (CDL)

*

O R D E R
The
delighted

Florida
summer

State

University

audiences

at

Flying

Callaway

High

Gardens

Circus
with

exciting trapeze acts and tight wire walks since 1961.

has
their

But, on

June 27, 2010, the excitement extended just outside the big top
when a runaway golf cart ran over Plaintiff Ann Roland and her
minor son, pinning them against a metal pole of the circus tent.
The golf cart had been rented from Callaway Gardens (“Callaway”)
by Defendants Christine Shreve (“Shreve”) and Thomas Bowersox
(“Bowersox”) who were guests at Callaway and whose family had
driven the cart to the circus tent.

Although it is undisputed

that neither Defendant was operating the golf cart at the time
of the collision, it is not clear who was actually driving it.
It has been speculated that the culprit was Defendants’ minor

grandchild.
because
claim.
parties’

The identity of the driver is no longer relevant

Plaintiffs
The

only

pending

have

abandoned

remaining
summary

their

claim,

negligent

and

judgment

the

supervision

subject

motions,

of

arises

the
from

Plaintiffs’ contention that they are third party beneficiaries
to the release and indemnity agreement that Defendants allegedly
signed with Callaway when they rented the golf cart. 1

For the

reasons that follow, Defendants’ motion (ECF No. 17) is granted
and Plaintiffs’ motion (ECF No. 15) is denied.
SUMMARY JUDGMENT STANDARD
Summary judgment may be granted only “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.”
Civ.

P. 56(a).

In

determining

whether

a

genuine

Fed. R.

dispute

of

material fact exists to defeat a motion for summary judgment,
the evidence is viewed in the light most favorable to the party
opposing summary judgment, drawing all justifiable inferences in
the opposing party’s favor.

Anderson v. Liberty Lobby, Inc.,

1

In their response to Defendants’ Motion for Summary Judgment,
Plaintiffs attempt to assert a new claim based on the allegation that
Defendants were negligent in the manner in which they parked the golf
cart next to the circus tent. These factual allegations, however, are
not included in Plaintiffs’ Complaint, and a plaintiff is not
permitted to avoid summary judgment by attempting to amend a complaint
in response to a summary judgment motion. Gilmour v. Gates, McDonald
& Co., 382 F.3d 1312, 1315 (11th Cir. 2004) (per curiam). Moreover,
the Court may not infer all possible claims that could possibly arise
from the allegations contained in a complaint. Id. The Court finds
that a “negligent parking” claim has not been adequately alleged.

2

477 U.S. 242, 255 (1986).

A fact is material if it is relevant

or necessary to the outcome of the suit.

Id. at 248.

A factual

dispute is genuine if the evidence would allow a reasonable jury
to return a verdict for the nonmoving party.

Id.

FACTUAL BACKGROUND
The

following

facts

are

undisputed

for

the

purposes

of

summary judgment unless otherwise noted.
Shreve reserved three cottages at Callaway for a family
vacation from June 26, 2010 through July 3, 2010.
35:15-23,
Shreve

ECF

also

No.

25.

reserved

In
two

conjunction
golf

carts

with
for

Shreve Dep.

that
use

reservation,

by

her

family

members and for which she and Bowersox were responsible for the
charges.

Id.

at

46:6-25,

73:3-9.

Shreve

and

Bowersox

vacationed with family members Brandy and Justin Kesl and their
two minor daughters, Maggie and Michael Ross and their two minor
children, and Liza and Michael Bowersox and their three minor
children.

Id. at 17:14-18:24.

In 2010, Callaway’s “standard operating procedure” for golf
cart

rental

included

ensuring

the

responsible

party

signs

a

Callaway Release of Liability Form (“Release”) at the time of
rental.
identifies

Sykora

Aff.

certain

¶¶

4-5,

ECF

liabilities,

associated with the rental.

No.

15-2.

rules,

and

The

Release

regulations

Morgan Dep. 27:17-20, 29:9-19, ECF

3

No. 24; Morgan Dep. Ex. 13, Release, ECF No. 24 at 107.
Release contains the following form language:
I (we) the undersigned, am (are) using recreational
equipment as shown on this form, at my (our) own risk,
which I (we) voluntarily assume.
In consideration of
the fee paid by me (us), and in full recognition of
the risks involved with such equipment, which risks I
(we) voluntarily assume.
I (we), the undersigned,
hereby release Callaway Gardens Resort, Inc. and The
Ida Cason Callaway FoundationTM, and their agents,
servants, and employees, officers and directors and
agree to hold them harmless from any and all
liability, claims, damages, actions, and causes of
action whatsoever for loss, damage, or injury to
person, including death, and whether sustained by
myself, my spouse, my parents, my child or children,
or property, regardless of how arising, and however
caused including but not limited to all kinds and
degrees or extent of negligence (except willful or
wanton
negligence
or
misconduct)
which
Callaway
Gardens
Resort,
Inc.,
The
Ida
Cason
Callaway
Foundation, and/or its employees may commit or be
charged with, whether consisting of omission or
commission, whether separately or concurrently with
someone else, and sustained by me, or us, my spouse,
my parents, my child or children, in connection,
directly
or
indirectly,
with
the
use
of
the
recreational equipment. This release shall be binding
upon
me,
my
heirs,
next
of
kin,
and
legal
representative.
I further agree that I am personally liable and
responsible for paying any claims which may arise as a
result of the use of any golf carts, including, but
not limited to any claims for personal injury, any
claims for property damage to any golf carts or to
other property, any claims for loss of any golf carts
or loss of use of any golf carts, any claims for
diminution in value of any golf carts, any claims for
the cost of repairing or replacing any golf carts or
any other claims of any kind or nature which may arise
from the use of any golf carts while in my possession
or in the possession of any other person.
I further
authorize Callaway Gardens Resort, Inc. to bill any
such charges or costs to my credit card or to my

4

The

account
as
appropriate.
Release.

Callaway

Gardens

Resort,

Inc.

deems

Callaway’s procedure also states that an employee must

go over the rules and regulations with the renter.

Morgan Dep.

Ex. 11, Callaway Gardens Golf Cart Rental Procedures, ECF No. 24
at 105.
Bob Sykora (“Sykora”), a Callaway employee and the director
of golf at the time, oversaw golf cart rental in June 2010.
Morgan Dep. 24:20-25:2.

Specifically, he oversaw the rental of

the two golf carts reserved by Shreve.

Sykora Aff. ¶ 6.

A Release, containing the same form language as above, for
the two golf carts rented to Shreve’s cabin includes the cart
numbers,

three

initials

“RES”

cabin
of

numbers

Sykora,

illegible signature.
ECF No. 24 at 84.

including

the

printed

Shreve’s
name

cabin,

“SHREVE,”

and

the
an

Morgan Dep. Pls.’ Ex. 18, Shreve Release,
The parties agree that Bowersox’s name does

not appear on the Shreve Release and that he did not sign the
release.

The

parties

dispute

whether

Sykora

or

any

other

Callaway employee explained the terms of the Release to Shreve
at

any

time.

The

parties

also

dispute

whether

Shreve

was

present when the Release for the golf carts rented in this case
was signed, whether Shreve signed the form, and whether it is
Shreve’s signature on the form.

Shreve asserts she did not sign

any document regarding rental of the golf carts, the signature

5

on the Release is not her signature and not her handwriting, and
she was not present when the Release was executed.
¶¶ 3-4, ECF No. 17-2.

Shreve Aff.

Shreve also claims that she was not

present when the golf carts were delivered to the cabins because
they were delivered before she arrived at the cabins.
Dep.

55:6-11.

Sykora’s

recollection,

however,

Shreve

provides

some

evidence that Shreve received the golf carts and executed the
Shreve

Release.

Sykora

recalls

being

notified

of

Shreve’s

arrival on June 26, 2010, delivering the golf carts to Shreve’s
cabin, and meeting a “guest identifying herself as Christine
Shreve” who accepted delivery and signed the Shreve Release.
Sykora Aff. ¶ 7.

Therefore, there is a factual dispute as to

whether Shreve signed the release.
On June 27, 2010, the Roland family attended the FSU Flying
High Circus at Callaway with their two minor children.
Dep. 34:24-35:12, 37:21-38:1, ECF No. 22.

Shreve and Bowersox

also attended the circus event with their family.
94:21-22.

Some

members

of

the

Shreve

Roland

and

Shreve Dep.

Bowersox

families

walked to the circus and others rode in golf carts, which they
parked outside the tent.

Id. at 94:25-95:1. 2

When the circus

ended, the Rolands, who were seated on the ground, got up to
leave and began gathering their belongings.

2

Roland Dep. 46:5-9.

Neither party points to any evidence of where the golf carts were
parked during the circus event.

6

As the family walked out of the tent, Ms. Roland was holding her
minor child A.R. on her right hip.

Id. at 46:10-16.

As she was

walking out of the tent, she heard screaming in the crowd.
at 46:25-47:9.
she

saw

shrubbery.

a

Id.

She turned to see what was going on, and then

golf

cart

coming

Id. at 47:11-13.

toward

the

crowd

through

the

The crowd parted and she could not

find anywhere to go to get out of the path of the golf cart.
Id. at 47:17-25.

She held A.R. as high as she could, turned to

her right side, and extended her left arm in an attempt to stop
the golf cart.

Id. at 48:1-7.

The golf cart struck Ms. Roland

on her left side and pinned her against a metal tent pole with
A.R. still in her arms.

Id. at 48:7-8.

She was pinned between

the golf cart and the metal pole with her face, left hand, and
torso over the plexiglass of the golf cart and she could not
move.

Id. at 48:11-14.

front of the golf cart.

Both she and A.R. were doubled over the
Id.

The parties do not dispute that the golf cart that impacted
Ms. Roland and A.R. was one of the golf carts rented by Shreve
and her family.

The parties dispute who was “driving” the golf

cart when it hit Ms. Roland and A.R.

According to Ms. Roland,

the first time Ms. Roland saw the golf cart, she saw a white
male with reddish-brown hair in the golf cart.
56:8-16.

Roland Dep.

When the golf cart hit her, Ms. Roland was “eye-to-eye

with the man.”

Id. at 63:4-5.

She looked down to see if she

7

could see her legs or the man’s legs, and then when she looked
back up the golf cart was empty.

Id. at 63:5-8.

The Defendants

speculate that their granddaughter, who was four years old at
the time, possibly jumped in the parked cart and drove it toward
the circus tent, colliding into Ms. Roland.
23:1-14, ECF No. 23.

E.g., Bowersox Dep.

Ms. Roland does not recall seeing a little

girl in the golf cart.

Roland Dep. 63:9-13.

The impact of the golf cart caused Ms. Roland and A.R.
serious personal injuries.
underwent surgery.

Ms. Roland fractured her femur and

After surgery, she had to undergo physical

therapy and she continued to suffer pain.

Id. at 31:1-32:5,

75:6-82:1.
The Rolands contend that they are third party beneficiaries
to

the

Shreve

Release,

which

they

argue

contractually

Defendants liable for their personal injury claims.

makes

Shreve and

Bowersox maintain that: (1) neither Shreve nor Bowersox executed
the Shreve Release; and (2) regardless of whether they signed
the Shreve Release, the Rolands do not have standing to enforce
the Shreve Release because they are not parties to or intended
third party beneficiaries of the Shreve Release.
DISCUSSION
It
Release.

is

undisputed

that

Bowersox

did

not

sign

the

Shreve

Therefore, no basis exists for holding him liable.

Consequently, he is entitled to summary judgment.

8

A factual

dispute clearly exists as to whether Shreve signed the release.
Therefore, she cannot escape summary judgment on this basis.
The

issue

regarding

her

liability

is

whether

the

Release

obligates her contractually for liability to Plaintiffs.
Under Georgia law, generally an action on a contract “shall
be brought in the name of the party in whom the legal interest
in the contract is vested, and against the party who made it in
person

or

by

agent.”

O.C.G.A.

§

9-2-20(a).

Additionally,

however, “[t]he beneficiary of a contract made between other
parties

for

his

benefit

promisor

on

the

contract.”

added).

This second category of plaintiff is referred to as a

third

party

may

beneficiary.

maintain

an

O.C.G.A.

§

“An

injured

action

against

9-2-20(b)

party

may

the

(emphasis

recover

for

personal injuries as a third-party beneficiary for failure to
perform a contractual duty only where it is apparent from the
language of the agreement that the contracting parties intended
to confer a direct benefit upon the plaintiff[.]”

CDP Event

Servs., Inc. v. Atcheson, 289 Ga. App. 183, 184, 656 S.E.2d 537,
539 (2008) (internal quotation marks omitted); accord Taylor v.
AmericasMart Real Estate, LLC, 287 Ga. App. 555, 558, 651 S.E.2d
754, 757 (2007).

The third party beneficiary need not be named

in the contract; however, “the contracting parties’ intention to
benefit

the

contract.”

third
CDP,

party
289

must

Ga.

be

App.

9

shown
at

184,

on

the

656

face

of

the

S.E.2d

at

539

(internal

quotation

marks

omitted).

“[T]he

fact

that

performance of the contract might benefit [a plaintiff] does not
alone establish the requisite intent,” and the “mere fact that a
third party would benefit incidentally from the performance of
the

contract

is

not

alone

sufficient

standing to sue on the contract.”

Id.

to

give

such

person

In other words, “it must

clearly appear that one party to the contract promised another
party to the contract to render some performance to the nonparty
to the contract. . . . [and] that both parties to the contract
intended that the contract benefit the nonparty.”

Taylor, 287

Ga. App. at 557-58, 651 S.E.2d at 757 (internal quotation marks
omitted).

Therefore,

the

question

“becomes

one

of

whether

intention is manifest in the contract that the defendant shall
compensate
arising

members

from

contract.”

its

of

the

attempts

public
to

for

perform

injurious
its

consequences

duties

under

the

Plantation Pipe Line Co. v. 3-D Excavators, Inc.,

160 Ga. App. 756, 757, 287 S.E.2d 102, 103 (1981).

Thus, even

if Shreve executed the Release, if this intent is not shown on
the face of the Release, then Shreve is under no duty to the
Rolands or any other member of the public and, accordingly, the
Rolands acquire no rights as third party beneficiaries and have
no standing to enforce the Release.

Id., 287 S.E.2d at 103-04.

The construction of contracts is a matter of law for the
court

at

the

summary

judgment

10

stage.

Amstadter

v.

Liberty

Healthcare Corp., 233 Ga. App. 240, 242, 503 S.E.2d 877, 880
(1998).

The Court must enforce a contract according to its

clear terms when the language is clear and unambiguous.

Gen.

Steel, Inc. v. Delta Bldg. Sys., Inc., 297 Ga. App. 136, 138,
676

S.E.2d

451,

453

(2009).

In

construing

any

contract, the Court must look to the whole contract.
13-2-2(4).

part

of

a

O.C.G.A. §

Ambiguity may exist where the contract “leave[s] the

intent of the parties in question.”
138, 676 S.E.2d at 453.

Gen. Steel, 297 Ga. App. at

On the other hand, “no ambiguity exists

where, examining the contract as a whole and affording the words
used therein their plain and ordinary meaning, the contract is
capable of only one reasonable interpretation.”

Id., 676 S.E.2d

at 453-54.
The Rolands contend that Plantation Pipe Line Co. v. 3-D
Excavators, Inc. supports their contention that they are clearly
intended third party beneficiaries under the Release.

In that

case, plaintiff brought an action for damages to his pipeline
that occurred when machinery operated by the defendant struck
the pipeline.

Plantation Pipe Line, 160 Ga. App. at 756, 287

S.E.2d at 103.

The plaintiff alleged that it was a third party

beneficiary of the contract between the defendant and the county
for which it was doing construction and sought recovery under
the

contractual

provision

providing

that

“[a]ny

damage

to

existing structures or utilities shall be repaired or made good

11

by the Contractor [defendant] at no expense to the Owner [DeKalb
County].”

Id.

original).

at

The

757,

287

Georgia

S.E.2d

Court

at

of

103

(alterations

Appeals

concluded

in

that

plaintiff was a third party beneficiary with standing to sue on
the contract because (1) defendant’s promise to repair damaged
structures was in the nature of compensation (a direct benefit)
to the owner of the damaged structure and (2) the plaintiff was
a member of a small group of beneficiaries whose utilities were
in

close

proximity

to

the

construction

work

that

it

could

reasonably be construed they were to be afforded contractual
protection under the repair language.

Id. at 758, 287 S.E.2d at

104-05.
Viewing the Shreve Release as a whole, the Court finds that
unlike the contract in Plantation Pipe Line, it is not clear
from

the

language

of

the

Release

that

Shreve

or

Callaway

intended to benefit any third party through Shreve’s contractual
duty to Callaway.

The Release was clearly intended to indemnify

and hold harmless Callaway from any expenses and damages arising
from Shreve’s rental and use of the golf carts.
Release

clearly

indicates

that

it

intended to benefit the Rolands.
Release’s
Shreve

provision

agreed

to

be

that

the

or

portion

of

it

was

It is not evident that the

Rolands

“personally

any

Nothing in the

rely

liable

and

on,

stating

responsible

that
for

paying any claims which may arise as a result of the use of any

12

golf

carts,”

promise

to

injuries.

included
make

or

blanket

payments

Shreve

nonparties

a

to

Release.

anyone

acceptance

nonparties
The

other

than

for

Release
the

of

liability
their

nowhere

golf

cart

and

personal
references

renter,

the

renter’s spouse, the renter’s parents, the renter’s child or
children,

or

the

renter’s

property.

Id.

Without

language

“reflecting an intent to confer a direct benefit on” a nonparty,
the contract does not support a finding that the Rolands were
third party beneficiaries of the Release.

Brown v. All-Tech

Inv. Grp., Inc., 265 Ga. App. 889, 897, 595 S.E.2d 517, 524
(2003); see also CDP, 289 Ga. App. at 185-87, 656 S.E.2d at 53940

(holding

that

that

the

plaintiff

was

not

a

third

party

beneficiary to the agreement at issue because no language in the
agreement

reflected

a

clear

intent

of

either

party

to

the

agreement to confer a benefit on plaintiff or other nonparties).
Moreover,
interpreted

to

even

if

include

the
a

Release

promised

could

payment

be

reasonably

generally

to

an

unidentified group of nonparties, the Release does not identify
the Rolands or any limited group of beneficiaries that would
include the Rolands who would have standing to sue under the
Release.

“Non-parties to a contract cannot claim third party

beneficiary status if they are members of an unreasonably broad
group of beneficiaries.”

Martinez v. Rycars Constr., LLC, NO.

CV410-049, 2011 WL 4625989, at *8 (S.D. Ga. Sept. 30, 2011)

13

(citing Miree v. United States, 242 Ga. 126, 135-36, 249 S.E.2d
573, 579-80 (1978)).
groups

which

unreasonably

The general public or patrons of Callaway,

include
broad

the

group

of

Rolands,

would

beneficiaries,”

constitute
id.,

who

“an

“might”

benefit or only incidentally benefit from the contract, which is
insufficient for third party beneficiary status, CDP, 289 Ga.
App.

at

185,

656

S.E.2d

at

539.

This

unreasonably

large

potential beneficiary group is in stark contrast to the small,
clearly identifiable beneficiary group in Plantation Pipe Line.
See 160 Ga. App. at 758, 287 S.E.2d at 105 (“[T]he plaintiff is
a member of a relatively small group of intended beneficiaries,
that is, those individuals whose obstructions and utilities were
in such proximity to the construction work to be completed under
the contract[.]”).
Consistent with the Release, Defendants theoretically could
have been liable to Plaintiffs for the incident in question, but
that liability would be based on traditional tort principles and
not contractual liability under a release that does not even
name Plaintiffs or clearly indicate it intended to benefit them.
Under the circumstances presented here, the Court finds that
Shreve is not liable to Plaintiffs under the Shreve Release.
See CDP, 289 Ga. App. at 186-87, 656 S.E.2d at 540.
thus grants summary judgment as to this claim.

The Court

Since Plaintiffs

apparently have been unable to discover evidence supporting a

14

tort claim, they simply have no legal recourse against these
Defendants for their injuries.
CONCLUSION
For
Motion

the
for

foregoing
Summary

reasons,

Judgment

the

(ECF

Court
No.

grants

17)

and

Defendants’
denies

the

Plaintiffs’ Motion for Partial Summary Judgment (ECF No. 15).
IT IS SO ORDERED, this 8th day of July, 2013.
S/Clay D. Land
CLAY D. LAND
UNITED STATES DISTRICT JUDGE

15