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Locke v. Ozark City Board of Education4/15/2005
pose of "adequate police protection" is to "provide good game administration and supervision." Game administration and supervision necessarily involve umpires. The fact that the AHSAA and the Board intended for the police protection to directly benefit the umpires, who are involved in game administration and supervision, is evidenced by the letter from the AHSAA sanctioning Carroll High School for the incident involving Locke. The AHSAA stated:
"According to information received ... there were administrators present at the baseball game from both schools but there was no police protection provided. ... At the conclusion of the game, Mr. Mixon Cook made his way to the area where the umpires were exiting the field. Mr. Wesley Locke, Jr., the umpire in chief was struck three times in the face and neck area by Mr. Mixon Cook, a parent of a Carroll High School athlete. Mr. Cook used his fist with striking blows to Mr. Locke's right eye, left neck area and right side of his face. Because of this physical attack by Mr. Mixon Cook on the game official, Mr. Wesley Locke, Jr., Carroll High School is assessed a monetary fine of $1,000.00 and placed on probation for a period of one year."
Because this matter is before us on the appeal of a summary judgment, we need determine only whether Locke, as the non-movant, has presented substantial evidence creating a genuine issue of material fact as to whether he was an intended direct beneficiary of the contract. We hold, based on the plain language of the contract and on the surrounding circumstances, that the contract anticipates third-party umpires, that the contract was intended to directly benefit umpires like Locke, and that Locke has presented substantial evidence creating a genuine issue of fact as to whether he was an intended direct beneficiary of the contract between the Board and the AHSAA.
IV.
The Board next argues that Locke's allegations sound in tort rather than in contract. Locke argues that his claim sounds in contract because, he says, the Board had a contractual duty to provide police protection at the baseball game Locke was umpiring, the Board failed to do so, and as a result Locke was assaulted by a spectator. Locke relies on Sims v. Etowah County Board of Education, 337 So. 2d 1310, 1313 (Ala. 1976), in which this Court stated: "'It will be observed that a negligent failure to perform a contract express or implied ... is but a breach of the contract.'" (quoting Berry v. Druid City Hosp. Bd., 333 So. 2d 796, 799 (Ala. 1976)(quoting in turn Vines v. Crescent Transit Co., 264 Ala. 114, 119, 85 So. 2d 436, 440 (1955))). On the other hand, it is true that "if in performing [the contract], it is alleged that the defendant negligently caused personal injury or property damage to plaintiff, the remedy is in tort, for it is not the breach of a contract express or implied, but the breach of an implied duty to exercise due care not to injure plaintiff or her property which is the gravamen of the action."
Vines, 264 Ala. at 119, 85 So. 2d at 440.
Cook testified that if police protection had been provided, he would not have attacked Locke. Therefore, viewing the record in a light most favorable to Locke, the non-movant, we conclude that he has presented substantial evidence showing that the Board failed to perform its contractual duties and that as a result of the Board's breach of the contract Locke was harmed. Locke's complaint sounds in contract, not in tort.
V.
The Board argues that "' bsent special relationships or circumstances, a person has no duty to protect another from criminal acts of a third person.'" Steiger v. Hunstville City Bd. of Educ., 653 So. 2d 975 (A
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