John Robert Johnson v. Unique Vacations, Inc.

Case: 11-16126 Date Filed: 11/20/2012 Page: 1 of 9
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 11-16126
Non-Argument Calendar
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D. C. Docket No. 1:10-cv-24217-MGC
JOHN ROBERT JOHNSON,
DIANA CANTU, as his wife,
Plaintiffs-Appellants,
versus
UNIQUE VACATIONS, INC.,
a Florida corporation,
SANDALS RESORTS INTERNATIONAL, LTD.,
a foreign corporation, d.b.a. Sandals Grande
St. Lucian Spa and Beach Resort, et al.,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(November 20, 2012)
Before TJOFLAT, KRAVITCH and EDMONDSON, Circuit Judges.
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PER CURIAM:
Plaintiffs-Appellants, John Robert Johnson and his wife, Diana Cantu,
appeal the grant of summary judgment in favor of defendants on a claim of
negligence that resulted in personal injury to Johnson while he was on a
horseback-riding excursion with Cantu at a resort in St. Lucia.1 No reversible
error has been shown; we affirm.
Plaintiffs, residents of Illinois, traveled to St. Lucia in November 2007 for a
prepaid vacation at Sandals Grande St. Lucian Spa and Beach Resort (“Sandals
Grande”). They used Unique Vacations, Inc. (“Unique”) to make their vacation
accommodations and travel arrangements for their all-inclusive stay at Sandals
Grande. On 26 November 2007, plaintiffs booked and paid for a horseback-riding
excursion through the Sandals Grande tour desk. The excursion was operated by
International Pony Club, who is not a party to the instant action. After purchasing
the excursion tickets, Cantu signed an excursion ticket sales receipt which
included these words:
1
We review de novo the district court’s grant of summary judgment. Thomas v. Cooper
Lighting, Inc., 506 F.3d 1361, 1363 (11th Cir. 2007). And we view the evidence in the light most
favorable to the non-moving party. Id.2
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There exists no relationship of master and servant or of agency
between the Operators of Tours and the Tour Desk of Sandals Grande
St. Lucian. The Operators of tours sold at the Tour Desk of Sandals
Grande St. Lucian are solely responsible for their acts and omissions
and Sandals Grande St. Lucian assumes no responsibility for such
acts and omissions or for any injury, loss, damage, sickness, or
accident sustained on any of the tours offered for sale at the Tour
Desk.
On 27 November 2007, plaintiffs, along with other Sandals Grande resort
guests, were transported from the resort to an off-site location on a bus operated
by Sandals Resorts International, Ltd. (“Sandals”). Upon arrival, plaintiffs signed
a waiver on a sign-in sheet for the excursion, which stated in part:
While we take every reasonable step to ensure your enjoyment and
safety, one must recognize the existence of an inherent risk associated
with horseback riding and being close to horses. Consequently, each
rider will be required to sign this waiver. By doing so, the customer
gives up the right to sue International Pony Club and their employees,
representatives, officers and agents, for any injuries sustained by the
customer and his personal belongings, including other activities
engaged on the beach, like swimming, swimming with the horses,
exploring, snorkeling, etc.
Johnson alleged that, after he mounted his horse, a tour guide smacked the
horse causing the horse to start running unexpectedly. He was thrown from the
horse and suffered serious injuries. Plaintiffs later filed a complaint against
Unique, Sandals Grande, and Sandals, alleging that defendants were vicariously
liable for Johnson’s injuries due to their relationship with International Pony Club.
3
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Cantu also brought an action for loss of consortium. Defendants, in turn, moved
to dismiss the complaint based on forum non conveniens, on contractual waiver,
and for failure to establish an agency relationship between International Pony Club
and defendants.
On appeal, plaintiffs first argue that the district court erred by converting
defendants’ motion to dismiss into a motion for summary judgment -- and then
granting the motion -- because issues of fact existed about whether an agency
relationship could be found between defendants and International Pony Club.
When a court considers matters outside of the pleadings in a Fed.R.Civ.P. 12(b)(6)
motion to dismiss, the court converts that motion into a motion for summary
judgment. See Fed.R.Civ.P. 12(d)2; Trustmark Ins. Co. v. ESLU, Inc., 299 F.3d
1265, 1267 (11th Cir. 2002). And when conversion occurs, the adverse party must
be “given express, ten-day notice of the summary judgment rules, of his right to
file affidavits or other material in opposition to the motion, and of the
consequences of default.” Griffith v. Wainwright, 772 F.2d 822, 825 (11th Cir.
1985).
2
If, on a Rule 12(b)(6) motion, “matters outside the pleading are presented to and not excluded
by the court, the motion must be treated as one for summary judgment under [Fed.R.Civ.P.] 56. All
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.” Fed.R.Civ.P. 12(d). Here, the district court considered exhibits, including copies of the
receipt and waiver, that defendants attached to their motion to dismiss.
4
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The record shows that the district court fully explained to plaintiffs the
consequences and procedure of conversion -- they were given the requisite ten-day
notice and advised to submit additional evidence in support of, or in opposition to,
the motion. Plaintiffs availed themselves of this right and filed an opposition to
the motion for summary judgment, including supporting exhibits. As a result, the
district court did not err in converting defendants’ motion to dismiss to a motion
for summary judgment.
Next, plaintiffs contend that the district court erred in granting summary
judgment because the court placed the burden on them -- as the nonmoving party -
- to establish the existence of an agency relationship between defendants and
International Pony Club.3
Summary judgment is appropriate where the moving parties demonstrate,
through pleadings, interrogatories, and admissions, together with affidavits, if any,
that no genuine issue of material fact exists and that they are entitled to judgment
as a matter of law. Fed.R.Civ.P. 56(a), (c). Once a party properly supports a
motion for summary judgment by demonstrating the absence of a genuine issue of
3
In general, the existence of an agency relationship is one for the jury to decide as the triers of
fact. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla. 2003). “The question
can be resolved by summary judgment only in those cases where the evidence is capable of but one
determination and there is no evidentiary question for the jury to resolve.” Font v. Stanley Steemer
Intern., Inc., 849 So.2d 1214, 1216 (Fla. Dist. Ct. App. 2003).
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material fact, the nonmoving party must come forward with specific facts showing
a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct.
2548, 2553, 91 L.Ed.2d 265 (1986). “A genuine issue of material fact does not
exist unless there is sufficient evidence favoring the nonmoving party for a
reasonable jury to return a verdict in its favor.” Chapman v. AI Transp., 229 F.3d
1012, 1023 (11th Cir. 2000) (en banc) (citation omitted).
The record supports the district court’s conclusion that plaintiffs failed to
show sufficient evidence that International Pony Club was an agent of defendants.
Plaintiffs failed to rebut the evidence showing that defendants did not in any way
own, operate, or exercise the right to control International Pony Club. See
Whetstone Candy Co. v. Kraft Foods, Inc., 351 F.3d 1067, 1077 (11th Cir. 2003)
(holding there was “no agency relationship” between two companies absent a lack
of acknowledgment that one acted on behalf of another). The receipt for the
excursion -- that plaintiffs acknowledge Cantu signed when she paid for the
horseback excursion -- clearly noted that International Pony Club was “solely
responsible for their acts and omissions” and that Sandals Grande “assume[d] no
responsibility for such acts and omissions,” or injuries sustained on the tours
offered for sale at the tour desk. See Restatement (Second) of Agency § 14 cmt. b
(1957) (“If the existence of an agency relation is not otherwise clearly shown, as
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where the issue is whether . . . an agency has been created, the fact that it is
understood that the person acting is not to be subject to the control of the other as
to the manner of performance determines that the relation is not that of agency.”);
see also Commodity Futures Trading Comm’n, 575 F.3d at 1190 (relevant to
control in an agency relationship is authority to supervise and discipline the
agent).
Defendants repeatedly represented to their customers that defendants had no
agency relationship with the operators of the horseback-riding excursion. A
display posted on the tour operator desk clearly noted that International Pony Club
was no agent of defendants. Plaintiffs cite to several contractual provisions in an
agreement between Jairo Management Limited (“Jairo”), Sandals Grande’s
management company, and International Pony Club to argue that Jairo retained the
authority to control International Pony Club’s horseback-riding excursions. To the
contrary, the record evidences that International Pony Club operated as an
independent contractor. See Vermeulen v. Worldwide Holidays, Inc., 922 So.2d
271, 274 (Fla. Dist. Ct. App. 2006) (“The standard for determining whether an
alleged agent is an independent contractor is the degree of control exercised by the
employer or owner of the alleged agent.”) (quotation and alteration omitted).
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The contract provisions listed by plaintiffs do not relate to control; none of
the requirements dictated how International Pony Club was required to operate its
horseback-riding excursion tours. The contract specifically stated that
International Pony Club was wholly responsible for the maintenance of “all the
animals, equipment and/or vehicles used in the provision of the Services.”
International Pony Club also was responsible for hiring and supervising its own
employees, as well as procuring its own licenses, insurance, and permits. Nothing
indicates that defendants instructed International Pony Club, in substance, on how
to run its business. See Harper ex rel. Daley v. Toler, 884 So.2d 1124, 1131 (Fla.
Dist. Ct. App. 2004) (noting that, an agency relationship exists where the principal
controls the means by which the agency conducts its business, but where the
principal controls only the results to be obtained from the business, the
relationship is one of an independent contractor).
Despite plaintiffs’ claims of an agency relationship between International
Pony Club and defendants, the mere allegation of agency is insufficient to create a
principal/agent relationship. See Vermeulen, 922 So.2d at 274-75 (affirming the
grant of summary judgment where the plaintiff failed to present evidence showing
that defendants owned, operated, or controlled the negligent party). Here,
plaintiffs have presented no evidence indicating that defendants owned, operated,
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or controlled International Pony Club. As such, plaintiffs’ speculations are
insufficient to create an issue of fact about agency; and the district court properly
granted summary judgment to defendants.4
AFFIRMED.
4
Because Johnson does not have an actionable tort against defendants, the district court properly
concluded that Cantu’s loss of consortium claim fails as a matter of law. See Gates v. Foley, 247
So.2d 40, 45 (Fla. 1971) (under Florida law, a loss of consortium claim is a derivative claim and is
dependent upon the existence of an actionable tort causing harm to the plaintiff’s spouse).
9