Locke v. Ozark City Bd. of Educ.

• Decision Date: 15 April 2005
• Docket Number: 1030877.
• Citation: 910 So.2d 1247
• Parties: Wesley LOCKE v. OZARK CITY BOARD OF EDUCATION.
• Court: Alabama Supreme Court

Page 1247

910 So.2d 1247

Wesley LOCKE v. OZARK CITY BOARD OF EDUCATION.

1030877.

Supreme Court of Alabama.

April 15, 2005.

Lawrence T. King and Christopher L. Roark of Goozée, King & Horsley, LLP, Birmingham, for appellant.

James R. Seale and Erika Perrone Tatum of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for appellee.

SEE, Justice.

Wesley Locke appeals from a summary judgment in favor of the defendant, the Ozark City Board of Education. We reverse and remand.

I.

Wesley Locke is a physical education teacher employed by the Dale County Department of Education. For a number of years, Locke also served as an umpire for high school baseball games. Locke was a member of the Southeast Alabama Umpires Association ("SAUA"), which provides officials to athletic events sponsored by the Alabama High School Athletic Association ("AHSAA").

On March 30, 1999, Locke was serving as the head umpire in a baseball game between Carroll High School and George W. Long High School. The game was being played at Carroll High School, and the principal and the athletic director of Carroll High School were in attendance; however, Carroll High School did not provide police protection or other security personnel for the game. After the baseball game, Mixon Cook, the parent of one of the baseball players for Carroll High School, attacked Locke, punching him three times in the face — in his right eye, on the right side of his face, and on the left side of his neck. As a result, Locke sustained physical injuries to his neck and face that caused him pain, discomfort, scarring, and blurred vision. Locke sued the Ozark City Board of Education ("the Board")¹ alleging breach of contract.²

Locke specifically alleged that because Carroll High School, through the Board, is a member of the AHSAA, it is therefore required to follow the rules and regulations of the AHSAA. According to Locke, the AHSAA Directory provides that all school principals have the duty to "insure good game administration and supervision by providing for the following: ... adequate police protection" at athletic events. Locke alleged that, by not fulfilling its duty under the Directory, the Board breached its contract with the AHSAA by failing to provide police protection at the baseball game, that he was an intended third-party beneficiary of the contract, and that he was injured as a result of the Board's breach of the contract.

The Board moved for a summary judgment, arguing that it did not have a duty to protect Locke, that Locke was not an intended third-party beneficiary of the contract between it and AHSAA, that Locke's claims were tort claims and not contract claims, that the Board is not responsible for the criminal actions of a third party, and that the Board did not breach "any alleged contract" with AHSAA. The trial court entered a summary judgment in favor of the Board. Locke appeals.

II.

The standard for review of a summary judgment is well established:

"The standard of review applicable to a summary judgment is the same as the standard for granting the motion, that is, we must determine whether there was a genuine issue of material fact and, if not, whether the movant was entitled to a judgment as a matter of law. Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and resolve all reasonable doubts against the movant. Wilson v. Brown, 496 So.2d 756, 758 (Ala.1986); Harrell v. Reynolds Metals Co., 495 So.2d 1381 (Ala.1986). See also Hanners v. Balfour Guthrie, Inc., 564 So.2d 412 (Ala.1990). "... Ala.Code 1975 § 12-21-12, mandates that the [nonmovants] meet their burden by `substantial evidence.' Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Under the substantial evidence test the nonmovant must present `evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.' West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)."

Brewer v. Woodall, 608 So.2d 370, 372 (Ala.1992).

III.

For the purposes of this appeal, we assume that the AHSAA Directory constitutes a valid contract between the Board and AHSAA.³

On appeal, Locke first argues that he is an intended third-party beneficiary of a contract between the Board and the AHSAA. "[I]f one person makes a promise for the benefit of a third party, such beneficiary may maintain an action thereon, though the consideration does not move from the latter." Franklin Fire Ins. Co. v. Howard, 230 Ala. 666, 667-68, 162 So. 683, 684 (1935).

"`"To recover under a third-party beneficiary theory, the complainant must show: 1) that the contracting parties intended, at the time the contract was created, to bestow a direct benefit upon a third party; 2) that the complainant was the intended beneficiary of the contract; and 3) that the contract was breached."'"

H.R.H. Metals, Inc. v. Miller, 833 So.2d 18, 24 (Ala.2002)(quoting Sheetz, Aiken & Aiken, Inc. v. Spann, Hall, Ritchie, Inc., 512 So.2d 99, 101-02 (Ala.1987)). Further, "`"[i]t has long been the rule in Alabama that one who seeks recovery as a third-party beneficiary of a contract must establish that the contract was intended for his direct, as opposed to incidental, benefit."'" Morris Concrete, Inc. v. Warrick, 868 So.2d 429, 434 (Ala.Civ.App.2003)(quoting McGowan v. Chrysler Corp., 631 So.2d 842, 848 (Ala.1993)(quoting in turn Mills v. Welk, 470 So.2d 1226, 1228 (Ala.1985))). "[W]e look[] to the complaints and the surrounding circumstances of the parties to ascertain the existence of that direct benefit." Holley v. St. Paul Fire & Marine Ins. Co., 396 So.2d 75, 80 (Ala.1981)(citing Zeigler v. Blount Bros. Constr. Co., 364 So.2d 1163 (Ala.1978)); see also Anderson v. Howard Hall Co., 278 Ala. 491, 179 So.2d 71 (1965).

In Zeigler, this Court addressed what is necessary to establish status as a third-party beneficiary of a contract. 364 So.2d at 1163. In that case, a dam commissioned by a power company and built by a contractor collapsed. 364 So.2d at 1165. Zeigler, a customer of the electrical power company, sued the contractor that had built the dam, arguing that his status as a consumer of electrical power made him a third-party beneficiary of the contract between the electrical power company and the contractor. Id. Specifically, Zeigler argued that because the contractor failed to construct the dam properly and the dam subsequently collapsed, he was being forced to pay higher bills for electricity than he would have had to pay had the dam been properly constructed. Id.

In determining whether Zeigler was a third-party beneficiary of the contract under the "surrounding circumstances" test, this Court looked to whether the power company itself was directly benefited by the contract, or whether the benefit manifested itself mainly to third parties. Zeigler, 364 So.2d at 1166. This Court noted that the contract itself did not mention third parties or any benefits third parties would reap from the construction of the dam. Id. This Court found that "[p]erformance of the contracts would, and did, result in an enhancement of [the power company's] real and riparian property holdings, to the direct benefit of the [power company] itself." 364 So.2d at 1166. This Court further noted that there was no evidence indicating that the power company had considered the fees their customers would have to pay if the dam was built, and that there was no evidence indicating that a properly constructed dam would have necessarily resulted in lower electrical bills for the consumer. Zeigler, 364 So.2d at 1166. Therefore, this Court held that because the contract directly benefited the power company and would not necessarily benefit the customer, Zeigler was an incidental, rather than an intended direct, beneficiary of the contract between the power company and the contractor. Id.

On the other hand, in H.R.H. Metals, Inc., Vulcan Materials Company contracted with H.R.H. Metals, Inc., to purchase and remove three buildings located on property belonging to Vulcan. 833 So.2d at 21. H.R.H. signed a contract with Vulcan that provided, in pertinent part:

"[H.R.H.] covenants to follow Vulcan's safety rules and to maintain its own safety and health program for its employees, subcontractors, and agents sufficient to prevent injury or illness to such persons resulting from their presence on the Vulcan premises...."

H.R.H. Metals, Inc., 833 So.2d at 21. H.R.H. hired a subcontractor, Carl Miller, to demolish and remove one of the buildings. Id. at 22. While in the process of demolishing the building, Miller walked across a skylight and fell 20 feet, seriously injuring himself. Id. Miller sued H.R.H., alleging, among other things, that H.R.H. had breached its contract with Vulcan to provide safety equipment to subcontractors, that he was a third-party beneficiary of the contract between Vulcan and H.R.H., that H.R.H. had breached that contract, and that he had been injured by H.R.H.'s breach of the contract.

On appeal, this Court noted that in order for a person to be a third-party beneficiary of a contract, the contracting parties must have intended to bestow benefits on third parties. H.R.H. Metals, Inc., 833 So.2d at 24. This Court held that to ascertain the intent of the parties "we must first look to the contract itself, because while `[t]he intention of the parties controls in construing a written contract,' `the intention of the parties is to be derived from the contract itself where the language is plain and unambiguous.'" H.R.H. Metals, Inc., 833 So.2d at 24 (quoting Loerch v. National Bank of Commerce of Birmingham, 624 So.2d 552, 553 (Ala.1993)). We then noted that the contract between H.R.H. and Vulcan specifically provided that H.R.H. was to "maintain its own safety and health program for its employees, subcontractors, and agents ...