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 reputation 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. By

1983, however, largely as a result of Coach Haney's efforts,

SUH sported a modern athletic complex with a new football stadium that seated 68,000 people. SUH constructed the complex largely with contributions from local businesses and alumni.

This sport complex also provided facilities for SUH to initiate an excellent physica l therapy and health care program into its academic curriculum. Without the revenues generated from the activities of the f ootball team, the physical therapy and health care program could not have been undertaken.

-7- By 1986, the year 1n which Drucker wa s injured, the SUH stadium sold out every home game, netting SUH a profit of

$675,688. Revenues derived from the sale of refreshments, parking tickets, programs and souvenirs generated profits of $454,922. The university signed a $450,000 contract with DEAF,

a national television broadcasting system, for coverage of three home games. By winning the Saccharin Bowl to become national champions, SUH Owls netted a cash prize of $250,000. Success has by no means eluded Coach Haney and and his fighting "Owls", and both the team and the university continue to benefit from the revenues derived from the football program. Hazel Drucker, now guardian ad litem of Drucker, brings

suit against the State University of Hooterville through the Board of Trustees for State University, the Board of Governors for the State University at Hooterville, and the Athletic Department of SUH as defendants. Mr. Drucker, through his guardian ad litem, seeks to recover for the injuries incurred through the actions of Arnold Ziffle.

OPINION

The case before this court involves the alleged negligent hiring of a st a te university employee. Defendants move for summary judgment on the arguments that: (l) the doctrine of ' sovereign immunity acts as an absolute bar to Plaintiff's suit, ( 2 ) negligent hiring is not a recognized cause of action in

-8- Greenacres, and (3) even if the court recognized the doctrine

of negligent hiring, as there is no genuine issue of material

fact, Defendants are entitled to a judgment as a matter of law.

I turn first to the threshold issue of whether sovereign

immunity bars Plaintiff's suit. Plaintiff argues that

sovereign immunity fails to apply in that the state agency, the

university, performed a proprietary function in the hiring of a

custodial engineer for the convenience of its football team.

The State of Greenacres embraced the doctrine of sovereign

immunity as early as 1878 in the landmark case, Burks v. City

of Phemboville, 10 Gs. 13 (1878). In adopting the doctrine of

sovereign immunity, the Supreme Court of Greenacres followed

the precedent established in State v. Hill, 54 Ala. 67 (1875).

The court cited with approval:

... government itself is not responsible for the misfeasances, or wrongs, or negligences, or omissions of duty of subordinate officers or agents employed in the public service ... it is not congruous with the ideas of order and duty, that the State, the august sovereign body whose servants they are should be held capable of doing wrongs ... should be made answerable for tortious injuries ...

Burks , 10 Gs. at 14 (quoting Hill, 54 Ala. at 68). Whereas our state legislature has yet to abrogate the doctrine of sovereign

immunity, there is no necessity for legislative action in a matter which the courts originated. Hargrove v. Town of Cocoa

Beach, 96 So.2d 130, 132 (Fla. 1957). We reject the majority

-9- view, as expressed in Boyer v. Iowa School Athletic Associa

tion, 256 Iowa 337, 127 N.W.2d 606 (1964), of holding the

legislature as the proper forum in deciding to abrogate or

modify sovereign immunity.

Having affirmed the court's authority to re-evaluate the

doctri~e of sovereign immunity for tort liability, I conclude

that it must be discarded as unjust. Muskopp v. Corning

Hospital District, 55 Cal.2d 211, ll Cal. Rptr. 89, 359 P.2d

457 (1961). In this declaration, I find that Defendants were

performing a proprietary function. The planning of teaching

position is a discretionary function, but the actual filling of

a position is a proprietary function. Willis v. Dade County

School Board, 411 So.2d 245 (Fla. 1982). Furthermore, the

sponsorship of intercollegiate athletics is a commercial

activity and exists as a proprietary function. Brown v.

Wichita State University, 217 Kan. 279, 540 P.2d 66, 88 (1975).

The court turns now to Plaintiff's contention that

Defendants were negligent in hiring Ziffle. While the majority of states have seen fit to adopt the negligent hiring theory, some have specifically refrained from doing so. Compare

Pontiacs v. K.M.S. Investments, 331 N.W.2d 907 (Minn. 1983) with Lewis v. Southern Pacific Company, 425 P.2d 840 (Ariz.

1967) and Black v. Hunt, 96 Conn. 663, 115 A. 429 (1921). No case in this state has considered the matter. Common sense, however, dictates that the doctrine not be given life in

Greenacres. Recognition of the doctrine and the resulting

-10- liability placed on an employer would create too great a burden

on the employer in the hiring process. Further, the doctrine

would turn the free enterprise system into an informal insurance

"conglomerate" inuring to the benefit of those few people unfor-

tunate enough to be injured by another's employee. An

employer's liability under respondeat superior surely is

adequate for the more common situation. While one may feel

pity for the injured plaintiff, that is no reason to reach into

the nearest "deep pocket" for victim compensation. Development

of such a system would be better left to the legislature.

Furthemore, as revealed in the legislative purpose section of

O.C.G.S. § 80-26-8, employment of former criminals is to be

encouraged. Recognition of negligent hiring in this case would

contravene the public policy goals of § 80-26-8.

Therefore, it is Ordered that Defendant's motion for

summary judgment on the first issue be denied and Defendant's motion for summary judgment on the second issue be granted.

R. Stein, Superior Judge

-11- FRED DRUCKER, through his guardian ad litem Hazel Drucker,

Plaintiff-Appellant,

Defendants-Appelles.

No 87-140

Greenacres Court of Appeals for the Second District

April 24, 1987

OPINION AND ORDER

Branch, Judge.

This appeal comes to. us from the Superior Court, County of

Metrolex. Appellant, Plaintiff below, appeals from the order of the Superior Court · granting Appellees', Defendants below, motion for summary judgment on the issue of negligent hiring.

Appellees cross-appeal the denial of their summary judgment motion on the claim of sovereign immunity. The facts in the record below are uncontroverted.

This court's initial inquiry involves whether the doctrine of sovereign immunity may be re-evaluated by the judiciary, rather than the legi s lature, in allowing Plaintiff to bring

-12- suit against Defenda nt for the alleged negligent hiring of a

university employee. The court agrees with the lower court

that the court, not the legislature, should be the forum to determine whether sovereign immunity should continue to protect

the state from tort liability.

Although aware that some jurisdictions classify the act of hiring school employees as a discretionary function (See

Roscrans v. Kingan, 154 Mich. App. 381, 397 N.W.2d 317 (1986)), we hold the hiring of a university football team's custodial engineer to be a proprietary function of the state.

On the issue of n~gligent in hiring, this court differs somewhat with the learned judge below. The doctrine of negligent hiring should be adopted in this state. This doctrine is merely a logical step from holding employers liable to those injured by an employee's negligence under the theory of respondeat superior, and constitutes an alternative basis of liability in those instances where a respondeat superior claim is not available. See Restatement of Agency 2d § 213 (1965).

However, this court holds as a matter of law that SUH is not Liable on a claim of negligent hiring under the uncontro verted facts contained in the record below. "Negligent hiring" has as its basis the existence of a special duty between the plaintiff and the employer. D.R.R. v. English Enterprises,

CATV, 356 N.W.2d 580 (Iowa App. 1985). This "special relation ship does not exist between Drucker and SUH, as amply evidenced I by a comparison with those situations where a special relation-

-13- ;

ship has been found to create a special duty. See id. (passenger on a railroad car, guest of an inn, tenant of an apartment building). Therefore, it i s Ordered that the Superior Court decision be Affirmed as modified.

B. Branch, Judge, Court of Appeals, 2d District State of Greenacres

-14- IN THE SUPREME COURT OF THE STATE OF GREENACRES

87-1113

FRED DRUCKER, through his guardian ad litem, Hazel Drucker,

Petitioner,

---against---

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,

Respondent.

CERTIFICATE OF APPEAL

The Petitioner, Fred Drucker, appeals from the Greenacres

Court of Appeals, Second District, order granting summary

judgment.

The Supreme Court of the State of Greenacres hereby certifies the following issues for argument of appeal:

I. Whether sovereign immunity prevents suit from being brought against a state university for its hiring of a custodial engineer for the university's football stadium?

II. (a) Should this court recognize negligent hiring as a valid cause of action?

(b) If this court does recognize negligent hiring, then is Respondent entitled to summary judgment under G.R.C.P. 21?

-15- APPENDIX

(Selected Statut es from the Official Code of Greenacres )

§ 27-3- 1 Establishment of state institutions of higher learning; management under board of trustees

In the interest of public education, the state of Greenacres establishes an institution of higher learning, namely the State University, with its principal office located in the city of Petticoat Junction. The state authorizes branches of State University to be established as:

(a) State University at Hooterville (b) State University at Mayberry (c) State University at Mount Pilot

All four state institutions of higher learning shall be under the management and control of a board of trustees to be known as the Board of Trustees for State University. The Board of Trustees is authorized to bring suit on behalf of the institutions of higher learning in the name of "the Board o f Trustees of State University".

§ 27-3-2 Appointment and terms of trustees

The governor, by and with the advice and consent of the senate, shall appoint the members of the Board of Trustees for State University, one member from each of the four existing congressional districts. One half of the membership of the board shall be appointed for a period of four years and one half of the board for a period of eight years. On the expiration of any said terms of office, the governor shall appoint successors, by and with the consent of the senate, for terms of eight years. In case of a vacancy by death or resignation of a member from the board, such a vacancy shall be filled by the board from the district from which the predecessor was appointed to hold office until the end of the period for which the original trustee was appointed, to the end of that trustee's term.

§27-3-3 Powers and duties

(a) The Board of Trustees of State University shall succeed to and continue to exercise control of all records, books, documents, equipment and all real and personal property belonging to or assigned to the use of the institutions of higher learning.

-16- (b) The bo ard s hall have general supervi s ion of the affairs of all the institutions of higher learning, including the departments and the schools thereof. The board shall have the power in its di s cretion to determine who shall be privileged to enter in, remain in, or to graduate therefrom. The board shall have general supervision of the c o nduct of all accounts and records, the organization and administrative plan of each institution, and all matters incident to the proper functioning of the institutions. The board shall have the authority to establish minimum standards of achievement as a prerequisite for entrance into any of the institutions under its jurisdiction.

(c) The board shall select and employ the three executive officers of each of the institutions and confirm the appointment of administrative personnel, teachers, and other employees of each state institution of higher learning and to establish their salaries and terms of office.

§ 27-3-4 Board of governors for each state institution of higher learning

(a) Each of the four state institutions of higher learning shall be directed by three executive officers, respectively named the Board of Governors of: State University; State University at Hooterville; State University at Mayberry, and State University at Mount Pilot. Each Board of Governors will supervise the daily administrative responsibilities of its respective state institution of higher learning.

(b) The three executive officers comprising each Board of Governors include:

(1) President (2) Vice-President (3) Treasurer and shall be appointed by the Board of Trustees for a term not to exceed forty years.

(c) Each Board o f Governors possesses the authority to create any departments or positions necessary to the administration of the institution. The Board of Governors may also select the perso nnel necessary to fill these positions. The Board of Governors must report monthly to the Board of Trustees regarding such decision and all recommendations regarding the creation of departments or positions or the selection of personnel are subject to the Board of Trustees' final approval following the monthly report.

-17- SUPPLEMENTAL RECORD

Ql: Does the Greenacres Constitution have a clause similar to the Kansas Bill of Rights § 818 in that ...

. . . all persons for injuries suffered in person, reputation, or property, shall have remedy by due course of law and justice administered without delay ...

and if not, what does the Greenacres Constitution provide for due process of law?

A: The Greenacres Constitution contains a provision identical to that of the United States Constitution, Amendment 14.

Q2: Did the State University at Hooterville fire Ziffle in regards to the incident in questions?

A: SUH discharged Ziffle, but the record does not reflect when this event exactly occurred except that it was after the incident but before this suit was initiated.

Q3: Does the State University of Hooterville have insurance coverage for its athletic department and facilities?

A: The State of Greenacres does not require its institutions of higher learning to carry insurance policies and the record contains no evidence that SUH carries insurance for its athletic department or facilities.

Q4: Has the Greenacres legislature ever recognized the doctrine of sovereign immunity?

A: The legislature has never passed any statutes involving the doctrine of sovereign immunity.

QS: What is the status of charitable immunity in Greenacres and was the doctrine of charitable immunity created through the court, the legislature, or both?

A: The Supreme Court of Greenacres has recognized the doctrine of charitable immunity and neither the courts nor the state legislature has modified or abolished the doctrine.

Q6: Is "joyriding" a felony in Greenacres?

A: It is a misdemeanor.

Q7: Is Greenacres' definition of joyriding the same as in Black's Law Dictionary?

A: Yes. - 2 -

Q8: Did Ziffle, or any other SUH employee, have a right to be 1n the weight room when he was not working?

A: SUH has no specific policy regarding where employees may spend their free time or where they may not spend their free time.

Q9: Has Greenacres adopted either the Restatement of Agency of Torts or both?

A: No existing Greenacres statute has formally adopted either Restatement.

QlO: What do A.S.A. § 87:4-3 and O.C.G.A. § 80-26-8 (laws that severely restrict third party access to criminal records) say? It is possible for employers to obtain the criminal records of applicants?

A: The exact language of the statutes is not important for the purposes of this argument. The effect of the statutes' provisions are as follows: employers may access prospective employee's records upon a written inquiry, together with the employee's written release of the information. Employers can expect a response thirty days after the mailing.

Q11: When did Greenacres pass O.C.G.S.§ 20-26-8?

A: The statute was passed in 1980.

Q12: What is the standing of the Supreme Court of Greenacres in hearing this appeal?

A: Jurisdiction is found under the Greenacres Constitution, Article IV, Section 3.

Q13: Does the Board of Governors or the Board of Trustees have any rules governing their review of hiring recommendations made to them by the athletic department?

A: See pages 5, 6, and 17 of the Record.

Q14: Does the athletic department have any formal rules governing its hiring procedures (i.e., interviews, investigating applicant's background)?

A: See page 6 of the Record.

Q15: Why is Petitionei appealing the abolition of sovereign immunity when two lower courts have already ruled in favor of the Petitioner on the issue?

A: Petitioner appeals on the order of the Court of Appeal's decision. The Supreme Court of Greenacres certified two questions in this certificate of appeal for Drucker v. State University at Hooterville. - 3 -

Ql6: Who is the injured party, Mr. Drucker or his son?

A: Only one male, Drucker is named specifically as "Mr. Drucker." See page 2 of the Record.

Ql7: Was the injured party hurt in the room adjacent to the locker room? Was the injured party in the locker room immediately prior to receiving the injury?

A: The weight room is adjacent to the locker room. Mr. Drucker, prior to entering the weight room, was touring the facilities. It is not known, or reflected in the record, if Drucker was in the locker room immediately prior to the incident, or at all.

Ql8: What is the status of Ziffle's 1987 convictions - misdemeanors or felonies.

A: The sentences Ziffle received for the 1987 convictions is not available.

Ql9: Does SUH (or the stadium) have a rule that employees are not to report to work or arrive at the place of employment a certain amount of time before the employee's duties commence?

A: See Question 8 in the Supplemental Record.

Q20: Does SUH have an ordinance or employment regulation which prohibits employees from "interfering with non-employment activities" (i.e., football games)?

A: See Question 8 in the Supplemental Record.

Q2l: Is the charge/conviction of joyriding a felony in Anxiety? What is the applicable statute number?

A: See Question 6 in the Supplemental Record. § 29:5-17.

Q22: What is the ''scope" of Ziffle's job when he was hired? Was he hired to clean outside the stadium or inside the locker rooms?

A: See page 3 of the record.

THIS SUPPLEMENTAL RECORD MAY BE CITED AS FOLLOWS:

Supplemental Record, p. X.