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)

Download PDF
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

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?