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TRANSCRIPT of the RECORD the Eighth Annual JOHN W. DAVIS TRANSCRIPT OF THE RECORD The Eighth Annual JOHN W. DAVIS MOOT COURT COMPETITION 1987 The Moot Court Board Washington & Lee University School of Law STATE OF GREENACRES SUPERIOR COURT, LAW DIVISION COUNTY OF METROLEX CIVIL ACTION NO. 87-11 FRED DRUCKER, through his guardian ad litem Hazel Drucker, Plaintiff, v. STATE UNIVERSITY AT HOOTERVILLE, through the Board of Trustees for State University, the Board of Governors for the State University at Hooterville, and the Athletic Department of the State University at Hooterville, Defendants. OPINION AND ORDER R. Stein, Superior Court Judge. STATEMENT OF FACTS Plaintiff alleges that Defendants negligently hired Arnold Ziffle. Defendants have moved for summary judgment under Green- acres Rule of Civil Procedure 21. G.R.C.P. 21. Rule 21 follows precisely Federal Rule of Civil Procedure 56. The standards for summary judgment in Greenacres follow the rulings of the U.S. Supreme Court on F.R.C.P. 56, as dictated by the -1- Greenacres Supreme Court in Itsus v. Them, 2 2 0 Gs . 175, 188 M.E. 102 (1986) . See e.g., Celotex Corp. v. Catrett, u.s. I 106 s. Ct. 2548. To support this motion, Defendants argue: (l) that the doctrine of sovereign immunity serves as an absolute bar to Plaintiff's claim; (2) that the doctrine of negligent hiring is not a recognized cause of action in Greenacres; and (3) even if the court recognized the doctrine of negligent hiring, as no genuine issue of material fact exists, Defendants are entitled to a judgment as a matter of law. On September 5, 1986, while in the athletic complex on the campus of the State University at Hooterville (hereinafter "SUH"), Arnold Ziffle, an SUH employee, intentionally injured Fred Drucker. On the day of the injury, SUH hosted a football game against its long-time rival, North Ollie Tech. The game between the Hooterville "Owls" and the Tech "Colonels'' was traditionally the most important and publicized game of the year for the two universities. These games, therefore, presented excellent recruiting opportunities for the host university. This particular year was no exception. At SUH's invitation Drucker brought his son, an All-American high school football player, to the SUH-Tech game for recruiting purposes. Drucker was touring the athletic complex while his son observed the half-time locker room activities. Upon entering an adjacent weight room, Drucker saw Ziffle receive an envelope from an SUH football player as Ziffle handed the player a -2- cellophane bag of "white powder". Startled by Dr ucker's s udde n appearance, Ziffle grabbed a dumbbell and struck Drucker in the right temple. The resulting cranial injury placed Drucker in a coma for three weeks, leaving him with severe brain damage. In January of 1985, Ziffle moved to the Town of Hooter­ ville, in the County of Hokey, State of Greenacres. After working in several part time and summer jobs, Ziffle applied for a position as "custodial engineer, sports complex-football stadium" at State University, Hooterville. Ziffle started work in this position on February 17, 1986, one week after applying. Ziffle's duties consisted of cleaning out the locker room, equipment room, weight room, and laundry room at the new football stadium during the work-week and, during the football season, on Saturdays after the game. On the day Ziffle injured Drucker, Ziffle had not yet "clocked in" and was not scheduled to do so for another two hours. When applying for the university job, Ziffle filled out a standard university support staff application form. On this form, Ziffle listed in the "past criminal convictions" section: "joyriding, State of Anxiety, 1976." Ziffle's actual criminal record differs from what he listed on the application form. On June 16, 1976, Ziffle, then living 1n the neighboring State of Anxiety, was indeed convicted of "joyriding", in that state. Then, on November 27, 1979, Ziffle was convicted on charges of shoplifting and assault in Anxiety. For these crimes Ziffle spent a total of four years in prison. -3- In the "references" section of the application form Ziffle listed Jane Dough, manager of a dry cleaners where Ziffle worked part time for three months, and Bill MacMurry, Ziffle's landlord. When contacted by the university, Dough had the following to say: "Oh yes, Arnold said you might call. Well, I did not know Arnold outside of the cleaners, but while he was here I never had any complaints about his work, and he never missed a day or came in late." MacMurry, when contacted, said: "Arnold's been renting from me for about a year now and hasn't been any later on his payments than anyone else. He seems to be a clean kind'a guy so he'd probably work out real well cleaning up around the college." As evidenced in the record of Ziffle's 1987 criminal convictions for assaulting Drucker and for trafficking in controlled substances, after Ziffle was released from prison in 1982, he was unable to secure full time employment in Anxiety. Ziffle testified that prospective employers, after learning of his criminal record, lost interest in retaining him. The State of Anxiety had, until recently, no law or policy significantly restricting employer access to prospective employees' criminal records. On January 21, 1987, Anxiety followed the State of Greenacres' lead in enacting a law severely restricting third party access to criminal records. A.S.A. 87:4-3; see O.C.G.S. § 80-26-8. The provisions of this law follow exactly those 1n O.C.G.S. § 80-26-8, as does the language in the legislative purpose section, which reads, in pertinent part: "This -4- legislative body, in ... tecognizing that former criminals h ave paid their debts to society, that their rehabilitation back into society is of common concern, and that their future employment is crucial to rehabilitation .... " A.S.A. 87:4-3(A); O.C.G.S. § 80-26-8(a). The management and control of the university is vested in a Board of Trustees (hereinafter the "Trustees"), a body whose membership is appointed by the governor with the senate's approval. O.C.G.S. § 27-3-2 (Rpl. 1978). The Trustees may bring suit under the name "Board of Trustees for State University" on behalf of any of the state's four institutions of higher learning. O.C.G.S. § 27-3-l (Rpl. 1978). To facilitate the decision-making process, the Trustees appoint three executive officers for the daily administration of SUH. O.C.G.S. § 27-3-3 (Rpl. 1978). The Trustees authorize these executive officers, known as the Board of Governors (herein­ a fter the "Governors"), to create such departments as the Governors deem necessary to fulfill their responsibility of running the university. O.C.G.S. § 27-3-4 (Rpl. 1978). To staff the positions in each department, the Trustees require each a pplicant complete a standard application form for each departmental position. The head of each department reviews the form in conducting its hiring process. In 1947, the Governors, under the direction of the SUH president, Oliver Wendell Douglas, created an Athletic Depart­ ment (hereinafter the ''Department") to supervise the univer- -5- sity's athletic and intramural programs. Prior to this Lime, SUH only operated an intramural program for its students. The Governors hoped that the creation of an Athletic Department would form and direct the university's varsity football, basket­ ball, and baseball programs. One of the Department's many responsibilities involves the hiring of all personnel necessary for SUH's football program. The Department conducts the hiring interviews and makes its recommendations to the Governors. The Governors then pass the Department's recommendations on to the Trustees in the Governors' monthly report. The Trustees generally accept the Governors' recommendations. In fact, neither the Governors nor the Trustees ever reject any of the Department's decisions involving the hiring of staff employees. In February of 1986, the Trustees voted to accept the Department's recommendation of hiring Ziffle as a custodial engineer for the football stadium. The State University of Hooterville is a state educational institution for higher learning. O.C.G.S. § 27-3-1 (Rpl. 1978). Since its founding in 1836, SUH has enjoyed an excellent reputa- tion for academic achievement. Its students have won Rhodes Scholarships and Fulbright Fellowships. Furthermore, over 35% of SUH's graduating seniors continue into prestigious graduate programs. In 1978, the mean grade point average of entering freshmen was 3.51 and the mean SAT score was 1200. Although these averages have dropped in recent years to a grade point average of 3.08 and a SAT score of 1050, SUH cont1nues its -6- strong academic tradition with an enrollme nt of 19,000 students. Of these 19,000 students, Greenacres citizens comprise 60% of the total enrollment, with an in-state tuition fee of $5000 per ac a demic year. Out-of-state tuition presently stands at $8750 per academic year. Proceeds received from tuition payments comprise 20% of SUH's budget. State taxes contribute nearly 40% to the university's budget, with the remainder supplied through alumni gifts and local endowments. In 1979, the Director of the Department, Lisa Douglas, hired Ned Haney as the SUH head football coach. Coach Haney ignited the SUH foo t ball program through aggressive recruiting techniques that netted outstanding high school football players. Prior to Coach Haney's arrival as head football coach, SUH experienced mediocre success as an "athletic powerhouse". Revenues from the 1978 season generated a profit of $15,000. The 1978 season ended with a record of 1-10.
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