SUPREME COURT OF THE UNITED STATES OF AMERICAAppeal No. 02-2793

FRANK AMENDOLA AND MELESSA AMENDOLA, ON BEHALF OF THEIR MINOR CHILD, DANNY

PLAINTIFF - RESPONDENT,

v.

SAINT TAMMANY PARISH SCHOOL CORPORATION, ST. TAMMANY PARISH SCHOOL BOARD MEMBERS

DEFENDANT – APPELLANT,

ON REVIEW OF A DECISION TO ADOPT A LIMITED DUTY BASEBALL RULE IN TULANIA AND TO UPHOLD PLAINTIFF-RESPONDENTS’

DUE PROCESS AND EQUAL PROTECTION RIGHTS, ENTERED IN THE UNITED STATES

COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT.

BRIEF OF PLAINTIFF-RESPONDENT

TEAM 14

TABLE OF CONTENTS Table of Contents……………………………………………………………..…………….……1

Table of Authorities ……………………………………………………………………..………2

Questions Presented…………….…………………………………………………….…...……..6

Argument………………………………………………………………………………………....7

I. THE COURT OF APPEALS PROPERLY HELD THAT THE HAIR-LENGTH POLICY VIOLATES THE APPELANT’S DUE PROCESS RIGHTS…………………………….7

A. Substantive due process affords the Amendolas the fundamental right to choose the length and style of their son’s hair……………………...…………………….8

B. St. Paul’s hair-length policy does meet the burden of having a substantial justification……………………………………………………………………......9

C. Enrollment in sports at a public school does not preclude the Amendolas from their constitutional rights……………………………………………………………....11

II. THE COURT OF APPEALS PROPERLY HELD THAT THE HAIR-LENGTH POLICY VIOLATES THE APPELANT’S EQUAL PROTECTION RIGHTS…………………...13

B. St. Paul’s hair-length policy constitutes gender discrimination……………..…..13

C. St. Paul’s hair-length policy constitutes a Title IX violation …………………....14

III. THE COURT OF APPEALS CORRECTLY REFUSED TO ADOPT THE LIMITED DUTY BASEBALL RULE …………………………………………………………......16

A. The Baseball Rule cannot coincide with the majority of states’ current shift towards comparative negligence standards…………………………………………..17

B. The Baseball Rule cannot replace traditional common law duty rules………..….20 C. The legislature holds the responsibility of creating a Baseball

Rule…………………………………………………………………………................….23

D. The most modern version of the Baseball Rule does not apply to the facts of this case……………………………………………………………………..………….……....27

Conclusion………………………………………………………………………………………28

1

TABLE OF AUTHORITIES

United States Supreme Court

Adickes v. Kress & Co., 398 U.S. 144 (1970)………….………….……….……………….....…14

Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252 (1977)….………….…….…..14

Batson v. Kentucky, 476 U.S. 79 (1986)……………………………………………………........14

Cantwell v. Conn., 310 U.S. 296 (1940)…....................................................................................9

Davis v. Passman, 442 U.S. 228 (1979) …..................................................................................13

Griswold v. Connecticut, 381 U.S. 479 (1965)…..........................................................................9

Harris v. McRae, 448 U.S. 297 (1980)...…………………………….……………………..……13

Kelley v. Johnson, 425 U.S. 238 (1976) …...................................................................................11

Meyer v. Nebraska, 262 U.S. 390 (1923) …………………………………………………….......8

Miss. Univ. for Women v. Hogan, 458 U.S. 718 (1982)………………………………………....14

Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669 (1983)….......................13

Pierce v. Society of Sisters, 268 U.S. 510 (1925)………………………………………………...8

Price Waterhouse v. Hopkins, 490 U.S. 228 (1989)……………………………………………..14

Reno v. Flores, 507 U.S. 292, 302 (1993)…………………………………………………...8,9,11

Shapiro v. Thompson, 394 U.S. 618 (1969)….............................................................................12

Shelton v. Tucker, 364 U.S. 479, 488 (1960)……………………………………………………...9

Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969)…..................................10, 12

Troxel v. Granville, 530 U.S. 57 (2000)……………………………………………………......8, 9United States v. O'Brien, 391 U.S. 367 (1968)...….…………………………..……………….…9

2

United States v. Virginia, 518 U.S. 515 (1996) ………………………………………………....14

Village of Willowbrook v. Olech, 528 U.S. 562 (2000) ….……………………………………...13

Wash. v. Glucksberg, 521 U.S. 702 (1997)……………………………………………………….8

Weinberger v. Wiesenfeld, 420 U.S. 636 (1975)...…………….……………………….……..….14

United States District Court and Court of Appeals

Alexander v. Chicago Park District, 773 F.2d 850 (7th Cir. 1985)……………………………...13

Arnold v. Carpenter, 459 F.2d 939 (7th Cir. 1972)…………………………………………….....8

Barker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir.1977)……………………………….....14

Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969)…...................................................................8, 9, 10

Carroll v. Talman Fed. Sav. & Loan Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979)…….......14

Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970)……………..………….…………………8, 9, 10

Dunham v. Pulsifer, 312 F. Supp. 411 (D. Vt. 1970)………………………………………….….8

Gobla v. Crestwood School District, 609 F. Supp. 972 (M.D. Pa. 1985)…….………………….13

Hayden v. Greensburg Cmty. Sch. Corp., 743 F.3d 569 (7th Cir. 2014) ……………………......15

Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974)……………………………………………..8, 10

Huebschen v. Department of Health, 716 F.2d 1167 (7th Cir. 1983)…………………………...14

Richards v. Thurston, 424 F.2d 1281 (1st Cir. 1970)……………………………………………..8

Robbins by Robbins v. Indiana High School Athletic Ass'n, Inc., 941 F.Supp. 786 (S.D. Ind. 1996)………………………………………………………………………..……………………12Wells v. One2One Learning Found., 39 Cal. 4th 1164 (2006). …...……………………….....…7

3

State Cases

Akins v. Glens Falls City School Dist., 53 N.Y.2d 325 (1981)…..................................................16

Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo. 1950)…………….……………21

Ball v. City of Blackfoot, 152 Idaho 673, 677 (2012)………………………………………..21, 22

Basso v. Miller, 40 N.Y.2d 233……………………………………………………….…………21

Bellezzo v. State, 851 P.2d 847, 852 (Ariz. Ct. App. 1992) ………………………………....16, 21

Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219 (Mich. Ct. App. 2001)………………16, 17, 25

Baxter v. Noce, 107 N.M. 48 (1988)……………………………………………………………..18

Coronel v. Chi. White Sox, Ltd., 595 N.E.2d 45 (Ill. App. Ct. 1992) superseded by Statute as stated in Jasper v. Chicago Nat. League Ball Club, Inc., 722 N.E.2d 731 (1999)…………..…..20

Groncki v. Detroit Edison Co., 557 N.W.2d 289 (1996)…………………………...……………16

Jones v. Three Rivers Management Corp., 483 Pa. 75 (1978)……………...……………….21, 27

Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013)………………..…17, 18, 23, 24, 26

Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 881 A.2d 700 (N.J. 2005)…………….27

Maytnier v. Rush, 225 N.E.2d 83 (Ill. App. Ct. 1967)……………………………………..…… 27

Scott v. Rizzo, 96 N.M. 682 (1981), superseded by statute as stated in Reichert v. Atler, 117 N.M. 628 (1992)……………………………………………………………………..…………18, 19, 20

Sharp v. W.H. Moore, Inc., 118 Idaho 297 (1990)…………………………..…………………. 24

Stephens v. Stearns, 106 Idaho 249 (1984)……………………………………...………………25

S. Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903 (Ind. 2014)……………………..…………20

Turpen v. Granieri, 133 Idaho 244 (1999)…………………………………...………………….21

Winn v. Frasher, 116 Idaho at 503………………………………………………..……………..24

4

Federal Statutes

42 U.S.C. § 1983………………………………………………….….…….……………………...7

20 U.S.C. § 1681(a)……………………………………………………………………………...14

State Statutes

Ariz.Rev.Stat. Ann. § 12–554……………………………………………………………………23

Colo Rev. Stat. Ann. § 13–21–120 (1994)……………………………………………………....23

N.J. Stat. Ann. § 2A:53A–43 to 2A:53A–48…………………………………………………….23

745 Ill. Comp. Stat. ………………………………………………………………………...……23

Constitutional Provisions

Fourteenth Amendment….…….………………………….……………………7, 8, 9, 12, 13, 15

The Equal Protection Clause....................................................................................…...13, 14, 15

The Due Process Clause….…………………….….………………….………………………7, 8, 9,

Secondary Sources

Jacob A. Stein, Stein on Personal Injury Damages Treatise § 14:6 (3d ed. 2012)………………17

Restatement (Second) of Torts: Negligence §496A (1965)………………………….…………..17

5

QUESTIONS PRESENTED

I. WHETHER THE COURT OF APPEALS PROPERLY HELD THAT THE HAIR-LENGTH POLICY VIOLATES THE APPEALANT’S DUE PROCESS RIGHTS.

II. WHETHER THE COURT OF APPEALS PROPERLY HELD THAT THE HAIR LENGTH POLICY VIOLATES THE APPEALANTS EQUAL PROTECTION RIGHTS.

III. WHETHER THE COURT OF APPEALS CORRECTLY REFUSED TO ADOPT THE LIMITED DUTY BASEBALL RULE FOR TULANIA.

6

ARGUMENT

The Supreme Court will review the case at hand de novo. St. Paul’s High School’s

(“School Corporation” or “St. Paul”) hair-length policy forces the Amendolas to forgo their

fundamental liberty in raising their son Danny (D.A.) in the manner they deem appropriate. The

policy also constitutes a violation of DA’s equal protection rights. The Amendolas seek relief

under 42 U.S.C. § 1983 (“Section 1983”), which provides a private cause of action for

individuals whose constitutional rights have been violated. There is no dispute that St. Paul was

acting under color of law, which is the first requirement to satisfy a claim under Section 1983.

The Amendola’s will show that their constitutional rights were violated in the following two

ways. First, the hair-length policy arbitrarily infringes on their fundamental liberty to choose the

manner in which they raise and groom their son, thus constituting a violation of their substantive

due process. Second, the hair-length policy subjects D.A. to discrimination based on his sex and

violates his equal protection rights.

I. THE COURT OF APPEALS PROPERLY HELD THAT THE HAIR-LENGTH POLICY VIOLATES THE APPELLANT’S DUE PROCESS RIGHTS.

The Amendola’s have the constitutional liberty to choose the manner in which they raise

their son D.A., including but not limited to his grooming. Because St. Paul is a public school,

their policies are subject to the same burden of justification of other state entities. Wells v.

One2One Learning Found., 39 Cal. 4th 1164, 1190 (2006). St. Paul’s hair-length policy does not

meet the necessary requirements to justify infringement upon the Amendola’s fundamental

rights. As a result, the school’s hair-length policy is a violation of their substantive due process.

7

A. Substantive due process affords the Amendolas the fundamental right to

choose the length and style of their son’s hair.

St. Paul’s hair-length policy violates the Amendolas’ Fourteenth Amendment right to

substantive due process. See, e.g., Wash. v. Glucksberg, 521 U.S. 702, 720 (1997). ("The [Due

Process] Clause ... provides heightened protection against government interference with certain

fundamental rights and liberty interests."). A "substantive due process" analysis must begin with

a careful description of the asserted right. Reno v. Flores, 507 U.S. 292, 302 (1993). Mr. and

Mrs. Amendola have the constitutional right to exercise care, custody and control over the

manner in which they raise their son D.A. Troxel v. Granville, 530 U.S. 57, 65(2000); Meyer v.

Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925). This includes

decisions over his personal grooming and hair-length, which is a well-established fundamental

right. Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969); Crews v. Cloncs, 432 F.2d 1259,

1263-64 (7th Cir. 1970); Arnold v. Carpenter, 459 F.2d 939, 941-42 (7th Cir. 1972); and

Holsapple v. Woods, 500 F.2d 49, 51-52 (7th Cir. 1974). “Ones choice of hairstyle is an element

of liberty protected by the Fourteenth Amendment.” Holsapple at 51-52.

A student's right to wear their hair as they please is also protected under the Fourteenth

Amendment’s Due Process Clause. Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970).

The basis of this fundamental right derives from the individuality and personality that ones’

hairstyle reflects. Dunham v. Pulsifer, 312 F. Supp. 411, 419 (D. Vt. 1970). There is no right

more sacred than for each individual to be in control of his own person, and to be “free from all

restraint or interference of others, unless by clear and unquestionable authority of law.” Crews at

1263. The right to wear one's hair in a length and style of their choosing has long been upheld as

8

a fundamental liberty. This freedom of choice in hairstyle also extends to students in schools,

and is a protected under substantive due process, absent substantial justifications.

B. St. Paul’s hair-length policy does meet the burden of having a substantial justification.

The Amendolas have the right to raise their son in the manner in which they deem fit,

absent compelling circumstances. Troxel at 510. This right extends to choices regarding his

grooming and hair length. If the state wishes to curtail this right, it must meet a “substantial

burden of justification.” Reno at 302; Crews at 1266; Breen at 1036.

The Fourteenth Amendment’s guarantee of "due process of law" includes a substantive

component, forbidding the government’s infringement on "fundamental" liberty interests,

regardless of the manner of due process. Reno at 302. The only time the government is permitted

to infringe on a fundamental liberty is if the infringement is “narrowly tailored to serve a

compelling state interest.” Id. When officials wish to curtail a fundamental right, there is a

substantial burden of justification required. Id. The Constitution protects children in schools from

“arbitrary and unjustified governmental rules.” Griswold v. Connecticut, 381 U.S. 479, 505

(1965). A governmental interference is only justified if it is “unrelated to the suppression of free

expression” and the restriction on the freedom is “no greater than is essential to the furtherance

of that interest”. United States v. O'Brien, 391 U.S. 367, 377 (1968). Even if the governmental

purpose is legitimate and substantial, that purpose cannot be pursued by means that broadly stifle

fundamental personal liberties when the end can be more narrowly achieved. Shelton v. Tucker,

364 U.S. 479, 488 (1960). The power to regulate must be exercised in a way that does not unduly

infringe on the protected freedom. Cantwell v. Conn., 310 U.S. 296, 304 (1940).

"The vigilant protection of constitutional freedoms is nowhere more vital than in the

community of American schools.” Shelton at 487. School officials do not possess absolute

9

authority over their students. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511

(1969). Students both in and out of the classroom are considered "persons" under The United

States Constitution. Id. They possess fundamental rights which the State must respect.” In order

to justify a state or school official curtailing a mode of expression, it must show that its policy

was caused by something more than a mere discomfort or unpleasantness. Id. at 509. Since the

impact of hair regulations extends beyond the schoolhouse gate, the degree of state infringement

on personal rights is significantly greater than in many other areas of school discipline. Crews at

1264. This Court has previously rejection similar justifications for hair-length polices as those

put forth by St. Paul. Theories such as: disruption to fellow students and risks to health and

safety, (Crews) and an attempt at establishing the need for a hair-length policy arguing a

correlation between hair-length and academic performance (Breen and Holsapple), were all

rejected finding a lack of a “substantial justification.” Where there is no finding and no showing

that engaging in the forbidden conduct would "materially and substantially interfere with the

requirements of appropriate discipline in the operation of the school," the prohibition cannot be

sustained. Tinker at 509.

St. Paul’s specifically seeks to justify its hair-length policy arguing that it promotes

discipline, maintains order, and ensures safety for students. (R. at 33.) The schools policy creates

provisions that extend to the Athletic Code, allowing coaches to choose “acceptable hair length”

for each individual sports team. (R. at 34.) It also forbids hairstyles that create problems of health

and sanitation, obstruct vision, or call undue attention to the athlete. Id. Head Coach Belichick,

of the boys Baseball team, requires that his male players have their hair cut above their ears,

eyebrows, and collar. Id. Mr. Belichick maintains that his standards promote an image of “clean

cut” boys, and establishes “uniformity for the sake of team unity.” Id. These reasons do not meet

10

the burden of a substantial justification as they do not serve a compelling state interest. Reno at

302. The only notable instance where justifications such as these have been supported, is in the

context of on duty police officers. See Kelley v. Johnson, 425 U.S. 238 (1976). The court in

Kelley based its decision on the facts that police officers are public officials acting in an official

capacity. Id. The facts of our case are distinguishable in that we are dealing with civilians and

more specifically students, operating in the setting of a public sports team.

Here, the burden to justify state infringement is not met. The District Court incorrectly

found that the school’s baseball team had a “substantial justification” for its hair-length policy.

The reasoning behind St. Paul’s hair-length policy does not rise to the level of having a

“substantial justification” for state regulation. The reasons put forth by Mr. Belichick are

cosmetic and superficial. He establishes no justifications that even allude to any state interests

being at stake. This hair-length policy stifles a constitutional freedom and its underlying

justifications have all previously been rejected on similar grounds. Because these standards are

not met, there is no substantial justification of infringement on the Amendola’s fundamental

rights. Thus, the hair-length policy is a violation of the Amendola’s right to substantive due

process.

C. Enrollment in sports at a public school does not preclude the Amendolas from their constitutional rights.

The Amendolas maintain their fundamental rights of childrearing and autonomous

grooming, in spite of enrolling D.A. to play sports at a public school. The District Court erred in

its finding that the Amendolas gave up their fundamental right, of parental autonomy, by

choosing to enroll their son D.A. in an interscholastic sport at a public high school. While The

District Court did state that a citizen's choice of hairstyle is an “element of liberty protected by

11

the Fourteenth Amendment,” they failed to properly classify the issue. The Court purported that

the issue came down to “whether the constitutional protection applies equally to a public school

student who wishes to play interscholastic sports” and concluded that playing baseball in this

context was a privilege and not a right, and that the Amendola’s gave up their fundamental rights

as a result. (R. at 12.)

The District Court’s distinction of a privilege versus a right is unfounded. Playing an

interscholastic sports is a non-constitutional ‘privilege’ protected by the Fourteenth

Amendment.” Robbins by Robbins v. Indiana High School Athletic Ass'n, Inc., 941 F.Supp. 786,

791 (S.D. Ind. 1996). The constitutional rights of students’ is not limited to just the classroom,

but also extends to playing on sports teams, and in the field. Tinker at 512. Students additionally

maintain their fundamental rights under circumstances where the sports teams are state funded,

state sponsored, and state controlled. See Shapiro v. Thompson, 394 U.S. 618, 627, n.6 (1969).

Subsequently, enrollment in an interscholastic sports team at a public high school does not

prevent the Amendola’s from maintaining and exercising their fundamental rights.

The Amendola’s maintain their fundamental right to raise and groom their son D.A. in

the manner they deem fit. Thus, The Court Of Appeals properly held that St. Pauls’ hair-length

policy violates the Amendola’s substantive due process rights.

12

II. THE COURT OF APPEALS PROPERLY HELD THAT THE HAIR-LENGTH POLICY VIOLATES THE APPELLANT’S EQUAL PROTECTION RIGHTS.

St. Paul’s hair-length policy violates D.A’s equal protection rights and is discriminatory

on the basis of his sex. Since D.A. is a male, he is subject to restrictions set in place by the hair-

length policy. These same restrictions are not in place for females that wish to play softball at St.

Paul’s. Because the hair-length policy is not applied equally to both male and female athletes

wishing to play the same sport at St. Paul’s high school, the policy is discriminatory.

The Amendola’s assert this claim based on the lack of equal protection D.A. is

experiencing because he is a male. The Fourteenth Amendment provides in part that "no State

shall . . . deny any person within its jurisdiction the equal protection of the laws." U.S. Const.

amend XIV. The Equal Protection Clause grants all Americans "the right to be free from

invidious discrimination in statutory classifications and other governmental activity." Harris v.

McRae, 448 U.S. 297, 322 (1980). It also affords an individual protection against intentional

discrimination, which is based upon class membership. Alexander v. Chicago Park District, 773

F.2d 850, 856 (7th Cir. 1985). This applies specifically to protect individuals against

“intentional, arbitrary discrimination by government officials” and contains a right to be free

from gender discrimination. Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000); Davis v.

Passman, 442 U.S. 228, 234-35 (1979); Gobla v. Crestwood School District, 609 F. Supp. 972

(M.D. Pa. 1985).

A. St. Paul’s hair-length policy constitutes gender discrimination.

Gender discrimination occurs when one is subject to “less favorable” treatment based on

their sex or gender. Newport News Shipbuilding & Dry Dock Co. v. EEOC, 462 U.S. 669, 682

(1983). The leading case on gender and sex discrimination sets a standard that employers may

13

not demand an employees’ appearance match that of the stereotypes associated with their sex.

Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989). This standard however receives

varying interpretations as its precedent was developed specifically in the context of employment.

Id. Practices such as excluding women from the military, requiring different dress codes for

women in the workplace, or grooming standards for women in the workplace all been deemed to

be gender discrimination. See, e.g., United States v. Virginia, 518 U.S. 515,520 (1996); Barker v.

Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir.1977); Carroll v. Talman Fed. Sav. & Loan

Ass'n of Chicago, 604 F.2d 1028 (7th Cir.1979); Price Waterhouse at 250-251. Policies based on

stereotypical gender-roles violate notions of equal protection. Weinberger v. Wiesenfeld, 420

U.S. 636 (1975). This also applies in the context of schools. Miss. Univ. for Women v. Hogan,

458 U.S. 718 (1982). Justifications for a gender-based classification must be exceedingly

persuasive. Virginia at 533. They also must not rely on overbroad generalizations about the

different talents, capacities, or preferences of either gender. Weinberger at 648.

B. St. Paul’s hair-length policy constitutes a Title IX violation.

Title IX prohibits discrimination on the basis of sex in any federally funded education

program or activity. 20 U.S.C. § 1681(a)(2012). The core of any equal protection case is a

showing of intentional discrimination. Batson v. Kentucky, 476 U.S. 79 (1986). A single

discriminatory act against one individual can amount to intentional discrimination for equal

protection purposes. Id; Arlington Heights v. Metropolitan Housing Corp., 429 U.S. 252, 266

(1977). Discrimination against an individual because of their membership in the class is by itself

enough to show a violation of their equal protection rights. Adickes v. Kress & Co., 398 U.S.

144, 152 (1970). The discriminatory act or policy in question must be based on the individual’s

membership to the class. Huebschen v. Department of Health, 716 F.2d 1167, 1171 (7th Cir.

14

1983). To establish an equal protection violation, the individual must show that the policy or act

(1) has a discriminatory effect and (2) that it manifests discriminatory intent to treat the

individual differently because of their membership in a particular group. Hayden v. Greensburg

Cmty. Sch. Corp., 743 F.3d 569, 574 (7th Cir. 2014). The court in Hayden found the fact that the

hair-length policy applies to only some male athletes at the school to be relevant to the question

of discrimination and lack of equal protection as well. Id.

St. Paul’s hair-length violates D.A.’s Fourteenth Amendment equal protection rights. The

policy subjects D.A. to discrimination on the bases of his sex and has a discriminatory effect,

fulfilling the two requirements to establish a case for an equal protection violation. D.A and his

parents are not allowed to choose the length and style of his hair simply because he is a male. If

D.A. were a female athlete at St. Paul’s, he would be free to excise this autonomous right, thus

illustrating the policies discriminatory intent. Furthermore, the policy manifests discriminatory

intent to treat D.A. differently because of his membership to the male gender. As previously

mentioned, D.A. is subject to this policy because he is a male. Additionally, only male baseball

players are subject to this policy. Male’s playing other sports at St. Paul’s, as well as female

athletes at St. Paul’s, are not subject to the unjustified limitations of this policy. (R. at 21.)

St. Paul’s hair-length policy is a prima-facie case of sex-based discrimination, violating

D.A.’s equal protection rights. This is in direct violation with Title IX, which prohibits

discrimination at public schools, such as St. Paul’s. (R. at 33.) Subsequently, The Court Of

Appeals properly held that St. Pauls’ hair-length policy constitutes gender discrimination and

thus violates D.A.’s equal protection rights.

15

III. THE COURT OF APPEALS CORRECTLY REFUSED TO ADOPT THE LIMITED DUTY BASEBALL RULE.

Questions regarding the nature and extent of a tortfeasor's duty are issues of law subject

to review de novo. Groncki v. Detroit Edison Co., 557 N.W.2d 289 (1996). This case presents

the first opportunity for this court to determinate whether to carve out an exception to the

traditional duty rules of the common law tort doctrine of negligence. Jurisdictions which utilize

the exception in the context of baseball have generally adopted the limited duty doctrine (the

“Baseball Rule” or the “Rule”), that an owner of a baseball stadium has a duty to screen only the

most dangerous part of the stadium and to provide screened seats to as many spectators as may

reasonably be expected to request them on an ordinary occasion. Akins v. Glens Falls City

School Dist., 53 N.Y.2d 325, 330-31 (1981).

Additionally, many courts have justified the Baseball Rule on contributory negligence

principles, particularly that spectators assume the risks that are inherent in the sport of baseball.

Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 222 (Mich. Ct. App. 2001) (“[T]here is an

inherent risk of objects leaving the playing field that people know about when they attend

baseball games.”); Bellezzo v. State, 851 P.2d 847, 852 (Ariz. Ct. App. 1992) (“[T]he danger that

a spectator hit by a foul ball may be injured is as evident as the likelihood that one who falls into

the Grand Canyon may be hurt.”). Assumption of risk and other contributory negligence

concepts provide defendants with an affirmative defense to tort liability – i.e., a plaintiff who

voluntarily assumes a risk of harm, even when arising from the negligent conduct of the

defendant, cannot recover for such harm. Restatement (Second) of Torts: Negligence §496A

(1965). Applying this principle to the Baseball Rule, courts have denied recovery to injured

spectators when the spectators assumed risks inherent and incident to the game of baseball.

16

However, regardless of the rationale behind the Baseball Rule, the court of appeals

correctly refused to adopt the Baseball Rule because the Rule cannot coincide with the majority

of states’ shift towards comparative negligence standards; the Baseball Rule cannot replace

traditional common law duty rules; the legislature holds the responsibility of creating a Baseball

Rule; and the most modern Baseball Rule does not apply to the facts of this case.

A. The Baseball Rule cannot coincide with the majority of state’s current shift towards comparative negligence standards because (1) the principles of comparative negligence are incompatible with contributory negligence principles (2) in the event that the two principles are compatible, assumption of the risk is governed by comparative negligence and is no longer a complete bar on recovery, and (3) the Baseball Rule inequitably places guilt on single party, a wrong which comparative fault ameliorates.

1. First, many courts that have adopted the Baseball Rule have done so on contributory

negligence (i.e. comparative fault) theories like assumption of the risk. See Benejam, 635

N.W.2d at 222. However, most states have now adopted comparative fault in lieu of

contributory negligence principles. See Jacob A. Stein, Stein on Personal Injury Damages

Treatise § 14:6 (3d ed. 2012) (stating that “[p]resently only a few states continue not to apply

comparative fault principles” and listing only four states and the District of Columbia). Under

comparative fault, courts apportion liability between parties based on the degree of fault for

which each is responsible. See Rountree v. Boise Baseball, LLC, 296 P.3d 373, 381 (Idaho 2013).

Because comparative fault principles are incompatible with contributory negligence principle;

many courts have refined and rejected the Baseball Rule in favor of a general trend toward

comparative fault. See Rountree, 296 P.3d at 378-79 (stating that adopting a comparative

negligence system “creates a logical inconsistency with assumption of risk, which by definition

bars recovery based on comparative responsibility”).

Therefore, in the present case, the court must reject baseball rule because comparative

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negligence principles are incompatible with contributory negligence. The district court adopted

the Baseball rule contending that the plaintiff assumed the risk of attending the baseball game.

The district court stated “[t]he logic of these precedents is that there is an inherent risk of objects

leaving the playing field that people know about when they attend baseball games.” (R. at. 48).

However, most jursidictions are under comparative fault standards which are incompatible with

contributory negligence principles like assumption of the risk. The Baseball Rule and standards

premised on assumption of the risk provide defendants with a complete shield from liability and

bar recovery by the plaintiff. But, by definition, comparative fault (which is now the standard in

most jurisdictions) does not provide a complete bar to recovery. Comparative fault apportions

liability based fault. Accordingly, if comparative fault is to be the standard, which it is in almost

every jurisdiction, then this court cannot adopt the Baseball Rule.

2. Secondly, some jurisdictions have merged comparative fault with contributory

negligence principles like assumption of the risk. See, e.g., Scott v. Rizzo, 96 N.M. 682 (1981),

superseded by statute as stated in Reichert v. Atler, 117 N.M. 628, 875 P.2d 384 (1992).

However, under a merger of comparative fault and contributory negligence, assumption of the

risk is governed by comparative negligence and is no longer a complete bar on recovery. Rizzo,

96 N.M. at 687 (stating that “[a]ssumption of risk as a form of negligence and other liability

concepts based on or related to negligence of either plaintiff, defendant, or both, are subject to

the comparative negligence rule.”); see also Baxter v. Noce, 107 N.M. 48, 51 (1988) (“In

adopting the doctrine of comparative negligence, we subjected the doctrine of assumption of risk

and other concepts based on the claimant's negligence to a comparative negligence analysis.”).

The court in Rizzo further stated that courts may develop comparative fault’s authority over

contributory negligence on a case by case basis. Rizzo, 96 N.M. at 688 (stating “we make no

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effort to catalog or determine how various rules will be affected by the comparative negligence

doctrine. Adaptations will be made on a case-by-case basis.”).

Therefore, even if this court is bound by precedent calling for assumption of the risk,

comparative fault standards govern. Additionally, Rizzo stated that courts may develop

comparative faults governance over contributory negligence on a case by case basis. In this case,

since assumption of the risk no longer serves as a complete bar to recovery, it makes sense for

this court to reject the Baseball Rule. Although premised on assumption of the risk, the Baseball

Rule by definition mandates a complete bar from recovery to a plaintiff who either assumes the

risk of attending a baseball game, or to the plaintiff when the baseball stadium fulfills its limited

duty of providing safe seating in the stadiums most dangerous parts. Under either scenario, the

Rule places a complete bar to recovery on the plaintiff, which is an inconsistent remedy with

comparative fault.

3. Lastly, the court should reject the Baseball Rule because the Rule inequitably places

guilt on single party, a wrong which comparative fault ameliorates. Rizzo, 96 N.M. at 689

(stating that “[t]he demise of contributory negligence as a defense can be justified…upon the

undeniable inequity and injustice in casting an entire accidental loss upon a plaintiff whose

negligence combined with another's negligence in causing the loss suffered, no matter how

trifling plaintiff's negligence might be.”). Liability based on fault is the foundation of tort law. Id.

The Baseball Rule potentially permits one of the contributing wrongdoers to avoid all liability,

and therefore goes against the principle of fault liability. Id. The rejection of the baseball rule and

the adoption of comparative fault will ameliorate the all-or-nothing doctrine of contributory

negligence and replace it with a more just system where liability is apportioned between the

parties based on the degree of fault for which each is responsible.” Rountree, 296 P.3d 373, 379

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(2013).

Therefore, in this case, the court should reject the baseball rule. Our principles of tort law

mandate liability based on fault. In this case, the record shows evidence of fault on part of the

School Corporation. The stadium design made it incapable for patrons to see the batter from the

concession area. (R. at 36). The School Corporation also failed to provide protective netting in

the concession stand area. Id. However, despite this fault on the part of the School Corporation,

under the Baseball Rule the School Corporation escapes liability regardless of its contribution to

plaintiff’s injury, and regardless of how trivial the plaintiff’s fault. Therefore, the Baseball Rule

produces an inappropriate result which this court must not allow. Accordingly, this court must

reject the Baseball Rule.

B. The Baseball Rule cannot replace traditional common law duty rules, and no special exception should be granted solely because it pertains to the sport of baseball.

1. Ordinary premises liability rules (liability rules stemming from injury occurring on

someone’s property) should apply in the context of a baseball stadium owner’s duty to his or her

fans, regardless of the popularity of the sport of baseball. See S. Shore Baseball, LLC v. DeJesus,

11 N.E.3d 903, 909 (Ind. 2014) (stating that “we are not convinced that any sport, even our

national pastime, merits its own special rule of liability.”) See Coronel v. Chi. White Sox, Ltd.,

595 N.E.2d 45, 47 (Ill. App. Ct. 1992) superseded by Statute as stated in Jasper v. Chicago Nat.

League Ball Club, Inc., 722 N.E.2d 731 (1999) (stating that a “land owner or occupier owes a

duty of reasonable care to business invitees located on his premises,” and there is “no exception

in favor of sports facilities from this requirement.”). The duty of owners and possessors of land

(e.g., stadium owners) is determined by the status of the person injured on the land (e.g., whether

the person is an invitee, licensee, or trespasser). Ball v. City of Blackfoot, 152 Idaho 673, 677,

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273 P.3d 1266, 1270 (2012).

In the majority of cases involving injury to paying spectators at sporting events, the rule

of liability applied pertains to the duty of a possessor of the land to his or her business invitee.

E.g., Bellezzo, 851 P.2d 847; Anderson v. Kansas City Baseball Club, 231 S.W.2d 170 (Mo.

1950); Jones v. Three Rivers Management Corp., 483 Pa. 75 (1978). An invitee enters upon the

property of another for a purpose connected with the business conducted on the land. Ball v. City

of Blackfoot, 152 Idaho 673, 677 (2012). A landowner owes an invitee a duty to keep the

premises in a reasonably safe condition, or to warn of hidden dangers. Id. Alternatively, some

jurisdictions have imposed on land owners (regardless of status invitee, licensee, or trespasser) a

single duty of reasonable care under the circumstances. Basso v. Miller, 40 N.Y.2d 233, 241.

Also, in general, “[e]very person, in the conduct of his business, has a duty to exercise ordinary

care to prevent unreasonable, foreseeable risks of harm to others.” Turpen v. Granieri, 133 Idaho

244, 247 (1999).

In Ball v. City of Blackfoot, pool patrons brought a negligence action against city after a

patron slipped and fell on ice which had accumulated on sidewalk between pool and parking lot.

Ball, 152 Idaho 673. The Plaintiffs claimed that the city negligently failed to keep the sidewalk

free of ice. Id. In holding that a landowner owes an invitee a duty to keep the premises in a

reasonably safe condition, and to warn of hidden or concealed dangers, the court observed that

there were signs of ice melt application near the entrance to the pool, but that the sidewalk area

where the plaintiff fell did not exhibit similar signs. Id. at 678. Accordingly the court reversed

the lower courts summary judgement against the plaintiffs because the defendant failed to warn

of hidden dangers at the specific location of injury. Id.

Therefore in the present case, the Baseball Rule cannot replace traditional common law

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duty rules. As the appellate court stated, “[i]t’s hard not to be romantic about baseball.” (R. at

29). However, no sport, even our national past time warrants its own special rule of liability.

DeJesus, 11 N.E.3d at 909. Accordingly, this court must adhere to traditional common law duty

rules. Courts usually apply the majority rule, in the context of injury to paying spectators at

sporting events, that the stadium owner owes a duty to the spectator or invitee to keep the

premises in a reasonably safe condition, and to warn of hidden or concealed dangers. In this case,

there is no reason to define the boundaries of “reasonably safe” simply because we are

considering the sport of baseball. Additionally in this case, the record indicates that the School

Corporation did provide Amendola with warnings. (R. at 36-7). However like in Ball v. City of

Blackfoot, there is no evidence that these warning were present in the concession stand area, or

intended to apply to the concession stand area where Amendola was struck by a baseball.

Additionally, some jurisdictions impose on owners and occupiers of land a single duty of

reasonable care under the circumstances or the general duty that, every person, in the conduct of

his business, has a duty to exercise ordinary care to prevent unreasonable, foreseeable risks of

harm to others. Like under the majority common law duty rule for land owners and their invitees,

there is no reason to deviate from these common law duty rules in lieu of a special exception

from baseball. As the appellate court stated “are stadiums and franchises, by virtue of baseball’s

status as our national pastime, governed not by our standard principles of premises liability but

rather by a special limited-duty rule? We think not.” (R. at 29).

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C. The legislature holds the responsibility of creating a Baseball Rule, not the judiciary because (1) the legislative branch is better suited to adopt a Baseball Rule (2) courts should only enact such a rule when public policy warrants, and (3) the court lacks information to formulate the boundaries of a Baseball Rule.

1. First, the legislative branch is better suited to adopt a Baseball Rule than the judicial

branch of government. Rountree, 296 P.3d 373, 379 (“Declining to adopt the Baseball Rule

leaves policy formulation to the deliberative body that is better positioned to consider the pros

and cons of the issue.”) Additionally, the legislature has the appropriate resources to make rules

based on public policy. Id. (stating that, “the Legislature…‘has the resources for the research,

study and proper formulation of broad public policy.’”). The legislature also has the authority to

enact a Baseball Rule by statute. Id. (stating that, “four other state legislatures have found it

appropriate in their state to enact a Baseball Rule.”); see, e.g., Ariz.Rev.Stat. Ann. § 12–554;

Colo Rev. Stat. Ann. § 13–21–120 (1994); N.J. Stat. Ann. § 2A:53A–43 to 2A:53A–48; 745 Ill.

Comp. Stat. Ann. 38/10.

Therefore in this case if a Baseball Rule is to be adopted, the Legislative branch holds the

responsibility of creating such a rule. The legislature has the tools, resources and staff

appropriately adapted for creating law based on public policy. It would be inappropriate to allow

the judiciary to usurp the role and duties of the legislature. Four other states have found it

appropriate to enact a Baseball Rule by legislative statute. If this jurisdiction is to adopt a

Baseball Rule, it must be done by legislative statute, not by judicial fiat.

2. Secondly, courts typically only enact judge made rules when public policy warrants

their enactment. Rountree, 296 P.3d 373, 379 (stating “even though the court may have the

power to adopt a rule, such as the Baseball Rule, which limits the duty of a business owner, we

decline to do so here. We find no compelling public policy requiring us to do so.”); see also

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Winn v. Frasher, 116 Idaho at 503 (concluding that, of the reasons to adopt the fireman's rule,

the fact that it was “compelled by public policy” was “the rationale [ ] most appropriate for our

consideration.”); see also Sharp v. W.H. Moore, Inc., 118 Idaho 297, 300 (1990) (rejecting the

“prior similar incidents rule” because it was too demanding and violated the “cardinal

negligence law principle that only the general risk of harm need be foreseen, not the specific

mechanism of injury”).

In Rountree, a spectator brought an action against a baseball team and stadium operator

after the spectator was struck and injured by a foul ball during a game. Rountree, 296 P.3d 373.

In considering whether to adopt a Baseball Rule, the court compared that case with an earlier

Idaho Supreme Court Case, Winn v. Frasher where public policy compelled the court to adopt a

fireman’s rule, which provided that “neither a fireman nor a policeman may recover in tort when

his injuries are caused by the same conduct that required his official presence.” Rountree, 296

P.3d 373; Winn v. Frasher, 116 Idaho 500, 501, 777 P.2d 722, 723 (1989). The court in Winn

rationalized the adoption of the rule on public policy grounds stating that “[t]he very nature of

police work and fire fighting is to confront danger. The purpose of these professions is to protect

the public.” Winn, 116 Idaho 500, 503 (citing Kreski v. Modern Wholesale Electric Supply, 415

N.W.2d 178, 186-87 (1987)). From this the court in Winn thought it would be unfair to allow a

firefighter or policeman to sue a citizen for the very same reason he or she was hired to work. Id.

The Rountree court, after analyzing Winn, then refused to adopt the Baseball Rule stating, “[w]e

find no compelling public policy requiring us to do so.” In Winn, public policy compelled the

fireman’s rule; however, in the Rountree the court found no such policy and refused to adopt the

Baseball Rule.

Accordingly, this court should reject the Baseball rule here because no policy warrants its

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enactment. Proponents for the Baseball Rule have argued multiple policy rationales for the

enactment of a Baseball Rule; however, each has been refuted. For example, proponents have

argued that spectators assume the risk of attending a baseball game. However, as discussed

supra, assumption of the risk is incompatible with comparative fault, the current standard in the

majority of United States’ jurisdictions.

Proponents of the Rule have also argued that “by providing greater specificity with

regard to the duty imposed on stadium owners, the rule prevents burgeoning litigation that might

signal the demise or substantial alteration of the game of baseball as a spectator sport.” Benejam,

635 N.W.2d at 222. However, the traditional common law duty rule will not subject stadium

owners to crippling liability, but will simply put the decision of liability in the hands of the jury.

Stephens v. Stearns, 106 Idaho 249, 258 (1984) (stating that adoption of a common law duty rule

is not tantamount to making the land owner an insurer for all injury occurring on the premises,

but simply allows the jury to decide whether such a duty was breached).

Proponents of the Baseball Rule have also argued that spectators welcome the risk in

order to be more intimately involved with the game. See Benejam, 635 N.W.2d at 222

(“[B]aseball patrons generally want to be involved with the game in an intimate way and are

even hoping that they will come in contact with some projectile from the field (in the form of a

souvenir baseball).”). However, as discussed infra, the most modern version of the Baseball Rule

is limited to the bleacher or seating area. The facts of this case show that the plaintiff was struck

while in the concession area. (R. at 36). This court should not adopt a rule that is not necessary

for the resolution of the facts of this case.

3. Lastly, this court lacks the necessary and sufficient information to formulate the

boundaries of a Baseball Rule. Judicial limitation of the scope of a duty or creation of a limited

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duty rule is inappropriate without the proper information to formulate the judge-made rule. See

Rountree, 296 P.3d 373, 379 (stating that defining the scope of a duty, by virtue of a limited duty

rule, with no information on the prevalence of foul ball injuries or how varying stadium designs

might prevent them is inappropriate). The court in Rountree went on to say that “[w]ithout this

information, drawing lines as to where a stadium owner's duty begins, where netting should be

placed, and so on, becomes guesswork.” Id. The court also stated that a rarity of incidents of

injury occurring at baseball games weighs against crafting a special rule since there is no history

of accidents that the court can look to, and draw from, to sensibly create a rule. Id. Accordingly,

the court in Rountree declined to adopt the Baseball Rule. Id.

In the present case, the court lacks the necessary and sufficient information to formulate

the boundaries of a Baseball Rule, and should therefore also reject the Baseball Rule. First, the

record provides no information on how varying stadium designs might prevent foul ball injuries.

Additionally, the record states that for at least “seven seasons, Amendola’s accident is the only

time a spectator has suffered a ‘major’ injury because of a foul ball.” (R. at 28). As mentioned,

the rarity of incidents of injury occurring at baseball games weighs against crafting a special rule.

Also, this case is the first time this court has examined the Baseball Rule. (R. at 47).

Accordingly, this court has not had the opportunity to fully examine the contours and nuances of

the Rule. Therefore, creating a Baseball Rule without the mentioned information would be

inappropriate and mere guesswork at best. As the court in Rountree stated, “[t]hese kinds of

questions are appropriate for the Legislature because it has the resources for the research, study

and proper formulation of broad public policy.” Rountree, 296 P.3d 373, 379. Additionally,

declining to adopt the Baseball Rule prevents the judiciary from acting without the proper

information to craft a well-informed Rule.

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D. The most modern version of the Baseball Rule does not apply to the facts of this case.

Modern jurisdictions have found that for multi-purpose areas, the Baseball Rule should

have limited applicability (only applied to bleacher areas and to baseball related activities). See

Maisonave v. Newark Bears Prof'l Baseball Club, Inc., 881 A.2d 700, 707 (N.J. 2005); Jones

v. Three Rivers Management Corp., 394 A.2d at 547-48; Maytnier v. Rush, 225 N.E.2d 83, 86-

89 (Ill. App. Ct. 1967) (excluding the baseball rule's applicability where the spectator watching

the game was hit by a baseball thrown by a pitcher warming up in the bullpen).

For instance, in Maisonave v. Newark Bears Professional Baseball Club, the New Jersey

Supreme Court ruled that the baseball rule only applies to the bleacher area, but that “multi-

purpose areas, such as concourses and playground areas, are outside the scope of the rule.”

Maisonave, 881 A.2d. at 707. Similarly, in Jones v. Three Rivers Management Corp., the

Supreme Court of Pennsylvania affirmed a jury verdict in favor of a plaintiff who was struck by

a baseball while watching batting practice through an opening built into the stadium's wall in

right field. Jones, 394 A.2d at 547-48. The court held that the openings were not a feature

inherent to the sport of baseball. Id. at 549-51. Consequently, the court concluded that the issue

of the stadium owner's liability was a question of fact for the jury to decide. Id.

Therefore, the most modern version of the Baseball Rule does not apply to the facts of

this case. The most modern version of the Baseball Rule only applies to the bleacher area of the

stadium and only to baseball related activities. However, the record indicates that Amendola was

hit by a baseball while near the concession area. (R. at 36). The concession area is outside of the

bleacher area. Additionally, visiting the concession area (attending the restroom in Amendola’s

case) is also a non-baseball activity. (R.at 36). Accordingly, the School Corporation may be held

27

liable if the most Modern Version of the Baseball Rule were to be applied. However, it would be

inappropriate for this court to impose a Baseball Rule that has no effect on the outcome of this

case. Therefore, this court should reject the Baseball Rule.

CONCLUSION

For the aforementioned reasons, the decision of the appellate court should be affirmed.

Team 14Attorney for Plaintiff – Respondent

Dated January 11, 2016

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