Elizabeth Nelson and Janet Nelson, Appellants-Plaintiffs v. JHMF LLC (2025)

MEMORANDUM DECISION

Case Summary

[1] Elizabeth Nelson and Janet Nelson brought a negligence action against JHMF, LLC, Lawrence County Recreational Park, Inc., Cunningham Golf Car Co., Inc., and Ryan Kemp. The trial court granted summary judgment for the defendants, and the Nelsons appeal. We affirm.

Facts and Procedural History

[2] On June 2, 2022, the Nelsons went to Lawrence County Recreational Park, where Elizabeth's band was scheduled to play in the John Hartford Memorial Festival. The festival was organized and produced by JHMF, LLC (“JHMF”), and the park is owned by Lawrence County Recreational Park, Inc. (“the Park”). Cars weren't allowed in the festival, so when the Nelsons arrived, they had to park outside the festival gate. The Nelsons, like all attendees, were required to sign a release (“the Release”) before entering the festival. The Release provided, in relevant part:

In exchange for my being allowed to participate in the “John Hartford Memorial Festival 1” (hereinafter known as “JHMF”), an event conducted by JHMF LLC., at Lawrence County Recreational Park, I, on my behalf and on behalf of any minors attending with me, of whom I am the parent or guardian, agree to be bound by each of the following:

Description of the JHMF Event entertainment, camping and moving around the park, and other related activities.

Voluntary Involvement I understand and confirm that my involvement in the JHMF as a “Volunteer” and/or my participation in the JHMF a [sic] “Participant” and/or my presence as an “Attendee” (hereinafter “Releaser(s)”) is voluntary.

Identification and Assumption of Risks I understand that accidents may occur during the JHMF (which includes all related travel) and that Releaser(s) occasionally may sustain death or serious personal injuries, as well as property damage, as a consequence thereof. I understand these risks and know that my actions in the JHMF as Releaser(s), may involve such risks. I understand that this document is intended to address all of the risks of any kind associated with my actions as Releaser(s) in any aspect of the JHMF whether named herein or not, including, particularly, such risks created by actions, inactions, carelessness or negligence on the part of JHMF LLC, ABATE of Indiana, Inc., ABATE Foundation, Inc., Lawrence County Recreational Park, Inc., ABATE Legal Services or their directors, officers[,] employees, agents, volunteers, successors, assigns, or persons acting under their permission or authority. I assume all risks in any way connected with my actions as Releaser(s) in the John Hartford Memorial Festival. I understand the risks of contacting Covid 19 and have read the warning information at the entrance of the ABATE property.

Release and Waiver I, on behalf of myself and my estate, release JHMF LLC, ABATE of Indiana, Inc., ABATE Foundation Inc., Lawrence County Recreational Park, Inc., Christopher & Taylor, Rod Taylor, ABATE Legal Services, and their directors, trustees, officers, employees, agents, volunteers, successors, assigns, the owner/lessee of the properties upon which the John Hartford Memorial Festival is conducted, and all persons acting under their permission or authority (collectively “Releasee(s)”), from any and all liability for, and waive any and all claim(s) for death, injury, loss, damage, or expense, including attorneys’ fees, in any way connected with my actions in the John Hartford Memorial Festival whether or not caused in whole or in part by the negligence or misconduct of any of the individuals or entities, or Releasee(s) mentioned above, or any other Releaser(s).

․

I HAVE READ THIS WAIVER, RELEASE OF LIABILITY, INDEMNIFICATION, AND CONSENT TO PHOTO AND VIDEOTAPE AGREEMENT. I UNDERSTAND THAT I HAVE GIVEN UP SUBSTANTIAL RIGHTS BY SIGNING THIS AGREEMENT. I AM SIGNING THIS WAIVER, RELEASE OF LIABILITY, INDEMNIFICATION AND CONSENT TO PHOTO AND VIDEOTAPE AGREEMENT, VOLUNTARILY.

Appellants’ App. Vol. II pp. 200-01.

[3] After signing the Release, the Nelsons entered the festival grounds. They were greeted by Ryan Kemp, a volunteer who was driving a golf cart. The golf cart was owned by Cunningham Golf Car Co., Inc. (“Cunningham”), which had contracted with JHMF to provide golf carts for transportation at the festival. As Kemp was driving the Nelsons down a steep hill to a festival stage, the golf cart's brakes failed and the golf cart crashed, injuring the Nelsons.

[4] In January 2023, the Nelsons brought a negligence action against JHMF, the Park, Cunningham, and Kemp. In January 2024, JHMF and the Park jointly moved for summary judgment, arguing that the Nelsons’ claims against them are barred by the Release. The Nelsons responded on February 13, arguing that the Release is ambiguous, unconscionable, and against public policy. The Nelsons also asserted that Kemp was intoxicated, that he knew the golf cart's brakes “were not functioning earlier in the day,” and that he “jumped out of the golf cart and abandoned his passengers”; that these facts made Kemp's conduct “willful and wanton”; that willful and wanton conduct isn't subject to the Release; and that JHMF is vicariously liable for Kemp's willful and wanton conduct under the doctrine of respondeat superior. Id. at 212-14. Finally, the Nelsons argued that summary judgment would be “premature” because “[m]any depositions remain that would be instructive on whether Kemp's behavior was willful and wanton.” Id. at 214. Specifically, the Nelsons noted that there hadn't been depositions of Kemp; Kathy Smith, “who allegedly saw Kemp drinking alcohol while driving”; Kimberly DeCero, who was “an eyewitness”; or Valda Hillary, who “may have knowledge of the brake failure.” Id. But the Nelsons didn't explain why the depositions hadn't already been taken, beyond claiming—without citing any evidence—that Kemp's deposition had been “requested several times but not taken.” Id.

[5] Two days later, on February 15, the trial court scheduled a summary-judgment hearing for March 20. There is no indication in the record that the Nelsons objected to that date or requested a continuance so that they could conduct further discovery.

[6] On March 9, Cunningham filed its own motion for summary judgment that incorporated JHMF and the Park's arguments about the Release. Cunningham also asked the trial court to set its motion for hearing on March 20, along with JHMF and the Park's motion.

[7] On March 11, three things happened. First, the trial court set Cunningham's motion for hearing on March 20. Second, the Nelsons responded to Cunningham's motion. Just as Cunningham's motion largely mirrored JHMF and the Park's motion, the Nelsons’ response to Cunningham's motion largely mirrored their response to JHMF and the Park's motion, with one addition: they argued that Cunningham isn't included in or otherwise protected by the Release. Third, Kemp moved to join in the other defendants’ summary-judgment motions.

[8] On March 18, two days before the summary-judgment hearing, JHMF and the Park filed a reply to the Nelsons’ response, expanding on the arguments they made in their motion and citing additional case law.

[9] The summary-judgment hearing was held as scheduled on March 20. The parties presented arguments about the scope and enforceability of the Release and Kemp's allegedly willful and wanton conduct. In addition, the Nelsons made two procedural requests. First, they asked the court to strike JHMF and the Park's reply brief, arguing that it was untimely and improperly contained additional case law and legal argument. Second, they asked the court to give them time to conduct more depositions. On that issue, the court had the following exchange with the Nelsons’ attorney:

THE COURT: Okay. And I think where I am at with that Counsel ․ I am probably one of the more lenient judges you will ever deal with as far as time. I don't micromanage cases. I try to let the attorneys do their thing. So I am pretty generous if people ask for an extension or if they want to continue something.

But I think, under the Rule, and believe it is I, I think the Court has the discretion for cause to alter the time frames within a summary judgment. So I think if the motion had been filed or a request for an extension or -- I mean, I can't say for sure what I would have done, but I probably would have granted that. I think I am a little -- I am a little, just, I guess I don't know where we are at as far as what giving you more time to do discovery is going to do when you have already had the time you needed and didn't ask for additional time.

[PLAINTIFFS’ COUNSEL]: Okay, Judge. I think just for the record, so we can preserve our record, it is our position that in our response, we did ask for more time and that that argument speaks for itself.

THE COURT: But do you agree no motion for an extension was filed?

[PLAINTIFFS’ COUNSEL]: Judge, we are considering the subsection of our brief where we stated that discovery was not completed, that we needed additional time, serves as a request for an extension.

THE COURT: But there is not a motion?

[PLAINTIFFS’ COUNSEL]: That is correct, Judge.

Tr. pp. 28-29. The court took the Nelsons’ requests and the summary-judgment motions under advisement.

[10] On May 29, more than two months after the summary-judgment hearing and with matters still under advisement, the Nelsons moved for leave to file a surreply and a supplemental designation of evidence. They noted, in part, that Kemp's deposition had been held on May 13, and they attached their proposed surreply and the deposition transcript. The trial court never ruled on the motion, so it is unclear whether the court considered the new materials tendered by the Nelsons.

[11] In July, the trial court issued the order being appealed. The court denied the Nelsons’ motion to strike JHMF and the Park's reply brief, concluding that the brief wasn't untimely and permissibly included additional case law and legal argument. The court also denied the Nelsons’ request to conduct further discovery, explaining:

Plaintiffs did not move for additional time to conduct discovery and they cannot now, after responding to Defendants’ motions for summary judgment, request discovery on the basis that such discovery might reveal a dispute of material fact yet unknown to Plaintiffs. If Plaintiffs desired additional discovery, it was incumbent on them to request same prior to responding to their opponents’ motions. The Court will not now allow Plaintiffs to engage in a fishing expedition.

Appellants’ App. Vol. II p. 35. Finally, the court granted summary judgment for the defendants based on the Release, which it found to be unambiguous and enforceable. As for the Nelsons’ claim that Kemp's conduct was willful and wanton, the court found that the only evidence the Nelsons designated in support of that claim was inadmissible hearsay.

[12] The Nelsons now appeal.

Discussion and Decision

I. The Nelsons haven't shown any procedural error by the trial court

[13] The Nelsons contend that the trial court committed several procedural errors during the summary-judgment proceedings. First, they argue that the court “erred in not permitting additional discovery into the issue of willful and wanton conduct.” Appellants’ Br. p. 27. A trial court has discretion in ruling on a motion for additional time under Indiana Trial Rule 56, so we review the denial of such a motion for an abuse of discretion. Erwin v. Roe, 928 N.E.2d 609, 614 (Ind. Ct. App. 2010). “To establish that the trial court abused its discretion, the party appealing the ruling must show both that good cause existed to grant the motion and that it was prejudiced by the denial of the motion.” Id.

[14] The Nelsons’ argument fails for several reasons. To begin, they didn't request additional time for discovery until the summary-judgment hearing. In their written response to JHMF and the Park's summary-judgment motion, they argued that summary judgment would be “premature” because “[m]any depositions remain that would be instructive on whether Kemp's behavior was willful and wanton,” but they didn't move for additional time. Moreover, neither in their written response nor at the summary-judgment hearing did the Nelsons show good cause for needing additional time. That is, they didn't explain why the depositions weren't conducted during the year-plus that the case had been pending. Given the lack of a written motion, the lateness of the oral motion, and the failure to show good cause, the trial court didn't abuse its discretion by denying the Nelsons additional time for discovery.

[15] Next, the Nelsons argue that the trial court erred by denying their motion to strike JHMF and the Park's reply brief. They contend that the brief was untimely because it was filed just two days before the summary-judgment hearing. They cite the following portion of former Indiana Trial Rule 6(D) (the language was moved to Rule 6(E) effective January 1, 2025): “A written motion, other than one which may be heard ex parte, and notice of the hearing thereof must be served not less than five days before the time specified for the hearing, unless a different period is fixed by these rules or by order of the court.” But this rule addresses motions, not reply briefs. The Nelsons cite no authority addressing the time for filing a summary-judgment reply. Therefore, they haven't shown any error by the trial court on this issue.

[16] The Nelsons also argue that the trial court “abused its discretion when it did not consider [their] supplemental evidence designation containing the deposition testimony of Ryan Kemp.” Appellants’ Br. p. 29. As an initial matter, it is not at all clear from the record that the court didn't consider the Nelsons’ supplemental evidence. The Nelsons themselves acknowledge that the court never ruled on their motion for leave to file the evidence. But even assuming the court refused to consider the supplemental materials, we review such a decision only for an abuse of discretion. Ind. Univ. Med. Ctr., Riley Hosp. for Child. v. Logan, 728 N.E.2d 855, 859 (Ind. 2000). The Nelsons haven't made such a showing. They don't address the fact that their request to supplement the evidence came more than two months after the summary-judgment hearing. Furthermore, while the Nelsons claim that “Kemp's supplemental deposition relates directly to” previously designated evidence, Appellants’ Br. p. 30, their argument doesn't include a single citation to Kemp's deposition or any other part of the record. For these reasons, even if the trial court disregarded Kemp's deposition, the Nelsons haven't demonstrated that doing so was an abuse of discretion.

[17] The Nelsons’ final procedural argument is that the trial court “abused its discretion in setting a hearing before [the Nelsons] had 30 days to respond to the summary judgment motions filed by Cunningham and Kemp[.]” Id. at 31. But the Nelsons never objected to the hearing date and never requested a continuance, so they waived this argument for purposes of appeal. See Wilkes v. Celadon Grp., Inc., 177 N.E.3d 786, 794 (Ind. 2021) (explaining that an argument raised for the first time on appeal is waived). Waiver notwithstanding, the Nelsons don't tell us how they were harmed by not having more time. They filed a lengthy response to Cunningham's motion, and Kemp simply joined in JHMF and the Park's motion, so no separate response was necessary.

[18] The Nelsons haven't shown that the trial court committed any procedural error.

II. The trial court properly granted summary judgment for the defendants based on the Release

[19] The Nelsons also argue that even if there was no procedural error, the trial court erred by granting summary judgment for the defendants based on the Release. We review a motion for summary judgment de novo, applying the same standard as the trial court. Hughley v. State, 15 N.E.3d 1000, 1003 (Ind. 2014). That is, “The judgment sought shall be rendered forthwith if the designated evidentiary matter shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Ind. Trial Rule 56(C).

[20] The Nelsons make a cursory argument that the Release is unconscionable and therefore unenforceable. A party claiming a contract is unconscionable must show (1) there was a great disparity in bargaining power that led the party with the lesser power to sign the contract unwillingly or unaware of its terms and (2) the contract is “such as no sensible man not under delusion, duress or in distress would make, and such as no honest and fair man would accept.” Rumple v. Bloomington Hosp., 422 N.E.2d 1309, 1313 (Ind. Ct. App. 1981), trans. denied. The Nelsons focus entirely on the first prong, arguing that they were “unquestionably the weaker party” because they were “forced to either miss out on their band's performance or sign this document.” Appellants’ Br. p. 19. We're not sure this is true. Perhaps the Nelsons could have refused to sign the Release or insisted that it be modified and the organizers would have acquiesced because they wanted the band to perform as scheduled. But even assuming there was a great disparity in bargaining power, the Nelsons make no attempt to satisfy the second prong, that is, to show that the content of the Release is so one-sided and unreasonable that no sensible person would voluntarily accept it. Therefore, they haven't shown that the Release is unconscionable.

[21] The Nelsons make a related argument that the Release is against public policy and therefore unenforceable. Specifically, they argue:

Both [JHMF and the Park] are public places, and contracts to indemnify their own negligence is [sic] against public policy. Public places have by their very nature superior bargaining power over patrons who have no choice but to utilize their spaces. The [Nelsons] were forced into using the golf carts for transportation by the festival. There was clearly unequal bargaining power, and [the Nelsons] were left with no alternative transportation route. Thus, the release is against public policy and should not be enforced.

Id. at 20-21 (citations omitted). We see two problems with this argument. First, JHMF and the Park aren't “public places.” Both are privately owned and operated. Second, the Nelsons cite no evidence to support their claim that they had “no choice” but to use the golf cart and were “forced” to do so. They weren't allowed to bring their car into the festival, but there is no evidence that they couldn't have walked where they needed to go. The Nelsons haven't shown that the Release is against public policy.

[22] The Nelsons also contend that even if the Release is enforceable as a general matter, it doesn't clearly release the defendants from claims arising solely from the defendants’ own negligence. As we have explained:

In the absence of legislation to the contrary, it is not against public policy in Indiana to enter into a contract that exculpates one from the consequences of his own negligence. However, in order to ensure a party's knowing and willing acceptance of this harsh burden, we have held that such exculpatory clauses must specifically and explicitly refer to the negligence of the party seeking release from liability.

Avant v. Cmty. Hosp., 826 N.E.2d 7, 10 (Ind. Ct. App. 2005) (citation omitted), trans. denied.

[23] The Release provides, in relevant part:

Release and Waiver I, on behalf of myself and my estate, release JHMF LLC, ABATE of Indiana, Inc., ABATE Foundation Inc., Lawrence County Recreational Park, Inc., Christopher & Taylor, Rod Taylor, ABATE Legal Services, and their directors, trustees, officers, employees, agents, volunteers, successors, assigns, the owner/lessee of the properties upon which the John Hartford Memorial Festival is conducted, and all persons acting under their permission or authority (collectively “Releasee(s)”), from any and all liability for, and waive any and all claim(s) for death, injury, loss, damage, or expense, including attorneys’ fees, in any way connected with my actions in the John Hartford Memorial Festival whether or not caused in whole or in part by the negligence or misconduct of any of the individuals or entities, or Releasee(s) mentioned above, or any other Releaser(s).

(Emphasis added). The Nelsons argue that because the Release refers to losses “in any way connected to my actions”—the actions of the releaser—it could be read to mean that “the Releasers need to do something negligent in order for the release to apply.” Appellants’ Br. p. 17. We disagree. After referring to the actions of the releaser, the Release goes on to address losses caused “in whole or in part” by the negligence or misconduct of the releasees. By releasing claims for losses caused “in whole” by the negligence or misconduct of the releasees, the Release necessarily covers situations where the releaser wasn't negligent. Therefore, the Release “specifically and explicitly” protects the releasees from claims arising solely from their own negligence.

[24] The Nelsons next argue that the trial court erred by finding there is no evidence of willful and wanton conduct by Kemp. They say there is evidence that Kemp was intoxicated, that he “knew that the brakes were not functioning earlier in the day,” and that he “jumped out of the golf cart and abandoned his, now trapped, passengers.” Id. at 24-25. The Nelsons cite the deposition testimony of Jessica George, who drove the golf cart before Kemp. George testified that other people told her there was a beer can in the golf cart after the crash and that Kemp had jumped out just before the crash. We are skeptical that such facts would support a finding of willful and wanton conduct, but in any event, the trial court found George's testimony on these points to be inadmissible hearsay, and the Nelsons don't challenge that ruling on appeal. As for the brake issue, George testified that she told Kemp there had been a problem earlier in the day, but she also testified that she told him the cart had been “fixed” and was “working fine[.]” Appellants’ App. Vol. III pp. 132-33. This evidence clearly wouldn't support a finding of willful and wanton conduct. The Nelsons haven't shown any error on this issue.

[25] Finally, the Nelsons argue that even if the other defendants are protected by the Release, Cunningham is not. They note that Cunningham isn't named in the Release and argue that it isn't otherwise covered by the language. Again, the Release identifies the “Releasees” as several named parties “and their directors, trustees, officers, employees, agents, volunteers, successors, assigns, the owner/lessee of the properties upon which the John Hartford Memorial Festival is conducted, and all persons acting under their permission or authority[.]” The Nelsons contend there is no evidence that Cunningham was an “agent or assign” of JHMF, Appellants’ Br. pp. 25-26, but they don't address the final category: “all persons acting under their permission or authority.” Cunningham, which contracted with JHMF to provide golf carts for the festival, acted under JHMF's “permission or authority” and is therefore covered by the language of the Release.

[26] In the alternative, the Nelsons assert that Cunningham waived reliance on the Release by failing to raise it as an affirmative defense in its answer. See Ind. Trial Rule 8(C) (providing that “[a] responsive pleading shall set forth” any affirmative defenses). They acknowledge that Cunningham raised the affirmative defense in an amended answer filed just six days after the original answer, but they note that Cunningham did so “without leave of Court” and argue that “[t]his practice runs afoul of Ind. R. Trial P. 15(A).” Appellants’ Br. p. 26 n.3. The Nelsons don't explain how this violated Trial Rule 15(A), which generally allows a party to amend its pleading without leave of court “at any time within thirty [30] days after it is served.” In any event, the Nelsons didn't make this argument in the trial court, so they can't make it on appeal. See Wilkes v. Celadon Grp., Inc., 177 N.E.3d 786, 794 (Ind. 2021) (explaining that an argument raised for the first time on appeal is waived).

[27] The Nelsons haven't shown that the trial court erred by granting summary judgment for the defendants.

[28] Affirmed.

Vaidik, Judge.

Judges Bailey and DeBoer concur. Bailey, J., and DeBoer, J., concur.