No. 02-2793
______________________________________________________________________________
In the
SUPREME COURT OF THE UNITED STATES OF AMERICA
______________________________________________________________________________
SAINT TAMMANY PARISH SCHOOL CORPORATION, et al.
Petitioners,
v.
Patrick and Melissa AMENDOLA, on behalf of their minor child, Danny
Respondents.
______________________________________________________________________________
ON A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
FOURTEENTH CIRCUIT
______________________________________________________________________________
BRIEF FOR THE RESPONDENTS
_____________________________________________________________________________
Team 6
Table of Contents
Statement of Issues Presented for Review .................................................................................. 4
Summary of the Argument .......................................................................................................... 5
Argument ....................................................................................................................................... 7
I. The Haircut Policy Violates Danny Amendola’s Fourteenth Amendment Right To
Equal Protection Under The Law By Facially Discriminating On The Basis Of Gender
And Impinges A Fundamental Liberty Interest Protected By Substantive Due Process. .. 7
A. The Haircut Policy Violates The Fourteenth Amendment’s Equal Protection
Clause Because Boys On The Baseball Team Must Maintain A Clean Cut To Promote
Petitioner’s Desired Image, Where As Females On The Softball Team Are Under No
Comparable Obligation. ........................................................................................................ 8
B. Petitioner’s Haircut Policy Violates Danny Amendola’s Fundamental Liberty
Interest To Be Free From Government Intrusion Because Controlling One’s Own
Personal Appearance Is An Ingredient Of Personal Freedom. ....................................... 12
II. Alternatively, Petitioner’s Haircut Policy Exceeded The Bounds Of Proscribing The
Athletic Dress Code Because Petitioner Is Only Permitted To Regulate Clothing Or
Manner Of Clothing. ............................................................................................................... 15
III. The “baseball rule” should not be applied in Tulania to define the duty of baseball
field owners towards the spectators because there is neither a compelling public policy to
a blanket limitation of liability for baseball field operators nor is there a jurisprudential
need for a bright line rule concerning negligence. ............................................................... 17
A. There is no compelling public policy requiring the application of the “baseball
rule” in Tulania because there is no need to establish a new duty of care and because
such public policy decisions are better suited for the legislative branch to answer. ..... 18
1. There is no need to establish a new duty of care where no specific duty
previously existed in Tulania because of existing limits to duty and a lack of
compelling public necessity. ............................................................................................ 18
2. Public policy decisions like the “baseball rule” are better suited for the legislative
branch. .............................................................................................................................. 21
B. Even should this court determine that the Baseball Rule should apply in Tulania,
the rule should not apply to the concessions area because it does not allow for a view of
the batter and it is not dedicated to viewing the baseball game. ..................................... 23
C. Conclusion ..................................................................................................................... 25
Conclusion ................................................................................................................................... 26
1
Table of Authorities
Cases
Adickes v. S.H. Kress & Co., 398 U.S. 144 (1970) ......................................................................... 7
Akins v. Glens Falls City School Dist. 424 N.E.2d 531 (N.Y. 1981). .................................... 20, 21
Anstine v. Hawkins, 447 P.2d 667 (Idaho 1968) ........................................................................... 20
Baker v. Taft Broadcasting Co., 549 F.2d 400 (6th Cir. 1977) ...................................................... 9
Ball v. City of Blackfoot, 273 P.3d 1266 (Idaho 2012) ................................................................. 15
Basso v. Miller, 352 N.E.2d 868 (N.Y. 1976) ........................................................................ 17, 19
Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219 (Mich. 2001). ................................................. 23
Breen v. Kahl, 419 F.2d 1034 (7th Cir. 1969) .................................................................... 6, 11, 12
Carrol v. Talman Fed. Sev. & Loan Ass’n of Chicago, 604 F.2d 1028 (7th Cir. 1979) ................. 8
Craig v. Boren, 429 U.S. 190 (1976). ............................................................................................. 8
Crews v. Cloncs, 432 F.2d 1259 (7th Cir. 1970). ................................................................... 11, 12
Dunham v. Pulsifer, 312 F. Supp. 411 (D. Vt. 1970) ................................................................... 11
Griswold v. Connecticut, 381 U.S. 479 (1965) ......................................................................... 6, 11
Holsapple v. Woods, 500 F.2d 49 (7th Cir. 1974) .................................................................. 12, 13
Holt v. Hobbs, 135 S. Ct. 853 (2015)........................................................................................ 6, 11
Jespersen v. Harrah’s Op’g Co., 444 F.3d 1104 (9th Cir. 2006) ................................................... 8
Jones v. Three Rivers Management Corp., 394 A.2d 546 (Pa. 1978) .............................. 22, 23, 24
Kavafian v. Seattle Baseball Club Ass’n., 177 P. 776 (Wash. 1919)............................................ 18
Kelly v. Johnson, 425 U.S. 238 (1976) ....................................................................................... 6, 9
Kreski v. Modern Wholesale Elec. Supply, 415 N.W.2d 178 (Mich. 1987) ................................. 17
Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 881 A.2d 700 (N.J. 2005) ........ 21, 22, 23
Martin v. Angel City Baseball Ass’n, 40 P.2d 287 (Cal. 1935) .................................................... 22
Murray v. Pittsburg Athletic Co., 188 A. 190 (Pa. 1936) ............................................................. 22
Parents Involved in Community Schools v. Seattle School Dist. No. 1, 551 U.S. 701 (2007)........ 7
Pederson v. Louisiana State University, 213 F.3d 858 (5th Cir. 2000) .......................................... 8
Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) ....................................................................... 8
Pryor v. NCAA, 288 F.3d 548 (3d Cir. 2002) ................................................................................. 7
Quinn v. Recreation Park Ass’n, 46 P.2d 144 (Cal. 1935) ..................................................... 16, 19
Regan v. Taxation Without Representation, 461 U.S. 540 (1983) ................................................ 12
Reno v. Flores, 507 U.S. 292 (1993) ............................................................................................ 11
Roe v. Wade, 410 U.S. 113 (1973) ............................................................................................ 6, 11
Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013) ............................................... 20, 21
Scott v. Rizzo, 634 P.2d 1234 (N.M. 1981) ....................................................................... 17, 18, 19
Stephens v. Stearns, 678 P.2d 41 (Idaho 1984)............................................................................. 16
Tiffany v. Arizona Interscholastic Ass’n, Inc., 726 P.2d 231 (Az. 1986) ..................................... 14
Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969).......................................... 12
Turpen v. Granieri, 985 P.2d 669 (Idaho 1999) ........................................................................... 15
UAW v. Johnson Controls, Inc., 499 U.S. 187 (1991) .................................................................... 7
United States v. Virginia, 518 U.S. 515 (1996) ...................................................................... 6, 8, 9
2
Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646 (1995)................................................................ 12
Winn v. Frasher, 777 P.2d 722 (Idaho 1989) ................................................................... 16, 17, 18
Statutes
745 Ill. Comp. Stat. Ann. 38/10 (1992) ........................................................................................ 11
Ariz. Rev. Stat. Ann. § 12-554 (1999) .......................................................................................... 11
Colo. Rev. Stat. Ann. § 113-21-120 (1994) .................................................................................. 11
N.J. Stat. Ann. § 2A:53A-43 (2006) ............................................................................................. 11
Other Authorities
J. Gordon Hylton, A Foul Ball in the Courtroom: The Baseball Spectator Injury as a Case of
First Impression, 38 Tulsa L. Rev. 485 (2003) ........................................................................... 6
James L. Rigelhaupt, Jr., Liability to Spectator at Baseball Game Who is Hit by Ball or Injured
as Result of Other Hazards of Game, 91 A.L.R.3d 24 (1979 & Supp.2003).......................... 5, 8
O.W. Holmes, Jr., The Common Law 1 (Boston, Little, Brown, & Co. 1881) ............................... 9
3
Statement of Issues Presented for Review
I.
Whether the Court of Appeals for the Fourteenth Circuit properly held that the haircut
policy violates Danny Amendola’s due process and equal protection rights.
II.
Whether the Court of Appeals for the Fourteenth Circuit properly refused to adopt the
“baseball rule” for Tulania when there is no evidence of a compelling need to limit the
liability of ballfield owners.
4
Summary of the Argument
Petitioner’s haircut policy should be invalidated because it violates the Equal Protection
Clause and impinges the fundamental right to control one’s body free from governmental
intrusion in violation of Substantive Due Process. The haircut policy facially discriminates on
the basis of gender. The policy only applies to two boy’s teams: football and baseball. To
justify its unequal treatment, Petitioner has stated it wants to create team uniformity and promote
a positive image. These interests, however, are not exceedingly persuasive justifications. All
teams, regardless of gender, have an interest in team uniformity, and all teams can promote a
positive image. By not including all the teams, Petitioner has revealed these interests are not
exceedingly persuasive to justify unequal treatment. Likewise, the haircut policy impinges the
fundamental right to privacy and freedom from government intrusion. Again, the interests are
not compelling because the policy is far too underinclusive. Additionally, the haircut policy is
not narrowly tailored. The policy reaches beyond the scope of the schoolhouse walls and into
the home. Once hair is cut, a person must live with that bodily appearance for a material amount
of time. Petitioner instead could promote a positive image by requiring all players to be washed
and hygienic before the start of games. To promote team uniformity and teach players to
subordinate individuality to team unity, coaches could bench players for acting improperly and
teach the player why his or her actions were wrong through dialogue. Moreover, the haircut
policy violates Danny Amendola’s due process rights because the governing dress code policy,
Policy 5511, only permits dress and grooming standards that promote conducive academic
purposes. The haircut policy, however, solely promotes athletic purposes and administrative
gain. Further, Policy 5511 only permits principles and schools to delineate what types of
clothing or manner of clothing are acceptable. The boy’s baseball team haircut policy goes
5
beyond clothing and regulates intimately personal bodily appearance. Therefore, the haircut
policy should be invalidated.
Next, the “baseball rule” should not be applied in Tulania because there is no compelling
public need for a new rule to limit the liability of ballfield owners for injuries caused during a
baseball game. While the baseball rule was created in order to immunize owners for injuries as a
result of expected and even – at times – desired fly balls during a baseball game, courts usually
only create new duties of care when there is a compelling public necessity to do so. Here, there is
no evidence of such a widespread necessity as to require the courts to take action and limit the
duty beyond the scope of existing rules such as comparative negligence and assumption of risk.
Further, even were the court to have the desire to do so, such public policy decisions are
traditionally the area of expertise of the legislative body. The legislature has better resources to
undertake a detailed study and weigh the pros and cons of such a law, whereas the courts are in
part limited to the facts and statistics presented to a specific case.
Even if the court were to decide to create the baseball rule in Tulania law, it does not
apply in this case where Ms. Amendola was injured while standing in the concessions area of a
ballfield. The baseball rule was created because there was a reasonable expectation that
spectators seated in the stands of a ballpark understood the risks of their location and were
participating in a potentially dangerous activity. By contrast, fly balls are not a risk inherent to
the concessions area of a baseball stadium. The concessions area is not dedicated to viewing the
sport, and the baseball rule applies only to common, frequent and expected risks.
6
Argument
I.
The Haircut Policy Violates Danny Amendola’s Fourteenth Amendment Right To
Equal Protection Under The Law By Facially Discriminating On The Basis Of
Gender And Impinges A Fundamental Liberty Interest Protected By Substantive
Due Process.
The Petitioners, acting under color of law, adopted a haircut policy that only applies to
males on two sports teams: baseball and football. J.A. at 23, 33–34. The policy requires
baseball players to maintain a “clean cut,” i.e., having hair cut above the ears, eyebrows, and
collar. Id. at 34. Of which, the stated purpose is to create “uniformity” by conforming the boys
to one another id. at 9, 34, and to require boys to promote the Petitioner’s desired “clean cut”
image, see id. at 34. The policy on its face treats boys differently than girls; therefore, the
Petitioner must establish an exceedingly persuasive justification for the differing treatment. See
United States v. Virginia, 518 U.S. 515, 533 (1996). Petitioner cannot. Moreover, the haircut
policy impinges Danny Amendola’s fundamental right to control his own body free from
government intrusion, cf. Roe v. Wade, 410 U.S. 113 (1973), Griswold v. Connecticut, 381 U.S.
479, 502 (1965) (White, J., concurring), because choosing one’s bodily appearance is an
“intimately personal” decision protected by the Constitution, see Breen v. Kahl, 419 F.2d 1034,
1036 (7th Cir. 1969). See also cf. Holt v. Hobbs, 135 S. Ct. 853 (2015) (holding prisoner has
right to control bodily appearance—beard length); Kelly v. Johnson, 425 U.S. 238 (1976)
(finding police department haircut regulation did not violate Fourteenth Amendment because of
need for citizens to identify policemen, the pervasive regulation of police uniforms, and
embodiment of following orders).
7
A. The Haircut Policy Violates The Fourteenth Amendment’s Equal Protection Clause
Because Boys On The Baseball Team Must Maintain A Clean Cut To Promote
Petitioner’s Desired Image, Where As Females On The Softball Team Are Under No
Comparable Obligation.
The haircut policy, on its face, intentionally discriminates against male athletes. See J.A.
at 34. Policy 5511 requires establishment of grooming guidelines that are “necessary to promote
. . . [an] environment conducive to academic purposes.” Id. at 33 (emphasis added). These
guidelines, also, require dress codes for athletic teams representing the Petitioner at public
events, which are established by the principle of a school with his or her staff. Id. Specifically,
principles get to “delineate what types of clothing or manner of clothing” are permissible. Id.
(emphasis added). Governing all student athletes, St. Paul’s High School Athletic Dress Code
regulates hairstyles that create heath and sanitation problems, obstruct vision, or those that call
undue attention to the student athlete, including “extremes in differing lengths.” Id. at 33.
Further, the Athletic Dress Code provides that the respective head coach determines each varsity
sports’ acceptable hair length, meaning policies do not have to be evenhanded. Id. Indeed,
under this system, boys playing baseball are required to promote the school’s desired “clean cut”
image, but girls playing softball—or any other girls team—do not. Id. at 17–18, 34.
The Equal Protection clause protects the individual. See Adickes v. S.H. Kress & Co.,
398 U.S. 144, 152 (1970). As such, an individual need only show state action that intentionally
discriminates on the basis of a protected class. See id. Additionally, the individual is not
required to establish the state action was the product of malevolent motive or animus because a
discriminatory act is discriminatory regardless of its purpose. UAW v. Johnson Controls, Inc.,
499 U.S. 187, 199 (1991); see also cf. Parents Involved in Community Schools v. Seattle School
Dist. No. 1, 551 U.S. 701 (2007) (affirmative action is discriminatory); Pryor v. NCAA, 288 F.3d
8
548, 566 (3d Cir. 2002) (“The [Supreme] Court has squarely held that, well-intentioned or not,
express or neutral on its face, a law or policy that purposefully discriminates . . . can only survive
if it withstands [the appropriate means-end] scrutiny”—i.e., strict or intermediate.); Pederson v.
Louisiana State University, 213 F.3d 858 (5th Cir. 2000) (state actor “need only treat [a protected
class] differently”). A finding of purposeful discrimination, however, is not dispositive. A
policy discriminating on the basis of gender is constitutional if the policy’s proponent can satisfy
intermediate scrutiny: the policy must further an exceedingly persuasive governmental interest,
United States v. Virginia, 518 U.S. at 533, and the policy must be substantially related to the
achievement of those interests, Craig v. Boren, 429 U.S. 190 (1976).
Here, Petitioner’s haircut policy facially discriminates on the basis of gender. As a
prospective athlete at St. Paul’s, Danny Amendola is subject to an evenhanded hairstyle policy.
J.A. at 34. Contained in that policy, however, is permission for state actors to treat boys and
girls differently. Id. (“[e]ach varsity head coach will be responsible for determining acceptable
length of hair for a particular sport”). Adopting Coach Belichick’s haircut policy, Petitioner has
required boys playing baseball to promote a “clean-cut” image, but it does not require girl’s
softball—or any girl’s team—to carry the same duty. Id. at 17–18, 34. In fact, the record
establishes the hairstyle policy as the only grooming standard applicable to girls wishing to play
sports at St. Paul’s. Id. at 17–19, 34 (stipulating that only boy’s football and baseball have
haircut policies). Both male and female athletes must keep their personal appearance in accord
with the hairstyle policy, but this policy does not announce anything else female athletes must
abide by. Id. at 21. Meaning, Petitioner’s male-only haircut policy is not one aspect of a
comprehensive grooming code that imposes comparable burdens on female athletes.
Accordingly, Petitioner’s haircut policy constitutes presumptively impermissible sex
9
discrimination. See Price Waterhouse v. Hopkins, 490 U.S. 228, 250–51 (1989) (plurality)
(regulating only one gender’s appearance is impermissible); accord Carrol v. Talman Fed. Sev.
& Loan Ass’n of Chicago, 604 F.2d 1028 (7th Cir. 1979) (finding sex discrimination when
women but not men were required to wear uniforms); Jespersen v. Harrah’s Op’g Co., 444 F.3d
1104, 1110 (9th Cir. 2006) (en banc) (majority) (stating grooming policies cannot create
“unequal burden”); Baker v. Taft Broadcasting Co., 549 F.2d 400, 401 (6th Cir. 1977)
(announcing unequal enforcement of haircut policy constitutes sex discrimination).
The haircut policy does not further an exceedingly persuasive government interest for
treating males and females differently. Petitioner’s stated the policy is meant to build team
uniformity through conformity and to promote the image of clean-cut boys—i.e., promote the
school in a desired manner. J.A. at 34. First, building togetherness through conformity is not an
exceedingly persuasive governmental interest because the need for complete uniformity is not
necessary in the interscholastic context. In Kelly, the Court found a police officer haircut policy
reasonable because police officers, as paramilitary entities, need to follow orders, learn to respect
chain of command, and the public needs to be able to easily identify police officers. See Kelly,
425 U.S. 238. Unlike the police context, children playing sports in school do not need to be
indoctrinated with respect for orders. Part of learning to play a sport is learning to listen to the
coach, but the coach is a teacher engaging in a two-way dialogue with his or her players—the
coach is not an authoritarian boss. In short, complete control over children playing
interscholastic sports is not necessary for the system to function. Second, promoting the image
of clean-cut boys is not an exceedingly persuasive interest because there is no evidence that St.
Paul’s High School or School Corp. have relied upon the benefits of having clean-cut boys take
the field. United States v. Virginia, 518 U.S. at 533 (emphasizing that there was no indication
10
that Virginia ever actually relied upon the potential educational benefits of having an all-male
school). Petitioners have only put forward that one coach wishes to have his team be clean-cut.
This is insufficient. The Court, in United States v. Virginia, rejected Virginia’s stated interest
that an all-male school enables educational benefits because if this were true, Virginia would
have more all-male schools. See id. Virginia did not, so the interest was not exceedingly
persuasive. See id. Petitioner’s interest in promoting the image of clean-cut boys—and building
team uniformity—fails for the same reason. If the reason were exceedingly persuasive,
Petitioner’s would have more male teams with the same clean-cut requirement. Petitioner,
however, does not, making the interest insufficient.
Relatedly, the haircut policy is not substantially related to the asserted interests. The
record before the Court reveals the Petitioner only requires two teams to promote a clean-cut
image and build uniformity through a haircut policy—assuming, arguendo, the football team’s
haircut policy is for these purposes, too. J.A. at 17–18, 34. The policies fail to be substantially
related to the asserted interest because they are substantially underinclusive. Only having two
male teams build togetherness through uniformity means Petitioner is letting every other male
team is missing out on that opportunity. Likewise, using athletic teams to promote a positive
image should not be limited to two teams because using all the teams for this interest would
ensure the image is actually known by the community. Using just two teams decreases the
probability that people will actually see the clean-cut image. Moreover, girl’s teams could also
promote a positive image through haircut policies. There is no reason why girl’s cannot help
promote a positive image, but Petitioner’s policy allows girl’s to be free to have their hair at any
length, which could actually subvert the positive image promoted by the boy’s baseball team.
Therefore, Petitioner’s haircut policy violates the Equal Protection clause.
11
B. Petitioner’s Haircut Policy Violates Danny Amendola’s Fundamental Liberty
Interest To Be Free From Government Intrusion Because Controlling One’s Own
Personal Appearance Is An Ingredient Of Personal Freedom.
Due to health, safety, and sanitation concerns, Petitioner has prevented certain hairstyles
from being worn by its athletes. J.A. at 34. These hairstyles include hairstyles that obstruct
vision, mohawks, haircuts in extreme differing lengths, and the use of hair coloring. Id.
Additionally, Petitioner’s haircut policy mandates that every boy on the baseball team maintain a
clean-cut. Id. Specifically, members of the baseball team must have hair cut above the ears,
eyebrows, and collar. Id. This policy, however, violates the most basic of liberty interests
protected by the constitution: freedom to control one’s own body. Cf. Roe, 410 U.S. 113 (right
to chose); Griswold, 381 U.S. at 502 (right to martial privacy); see also Holt, 135 S. Ct. 853
(beard length in prison). In other words, the policy violates a fundamental right protected by the
Constitution because it constitutes government intrusion. As such, the state must meet a
“substantial burden of justification” to “limit or curtail this or any other fundamental right.”
Reno v. Flores, 507 U.S. 292, 301–02 (1993) (strict scrutiny); Breen v. Kahl, 419 F.2d 1034,
1036 (7th Cir. 1969).
The Constitution protects more than just the Bill of Rights. Griswold, 381 U.S. at 484
(“the Bill of Rights has penumbras, formed by emanations from those guarantees that help give
them life and substance”). Usually, this additional protection comes in the form of a right to
privacy giving so as to give life to enumerated rights. Id. For example, the First Amendment
“has a penumbra where privacy is protected from governmental intrusion,” id. at 483, and the
Fourth and Fifth Amendments embody a protection “against all governmental invasions ‘of the
sanctity of a home and the privacies of life,’” id. at 484. Of these fundamental rights, “[n]o right
is held more sacred, or is more carefully guarded * * * than the right of every individual to the
12
possession and control of his own person, free from restraint or interference of others, unless by
clear and unquestionable authority of law.” Crews v. Cloncs, 432 F.2d 1259, 1263 (7th Cir.
1970). Further, the cut of one’s hair has been found to be fundamental because it is an
“intimately personal” matter, Breen, 419 F.2d at 1035, and once cut it must remain that way for
“substantial periods of time.” Dunham v. Pulsifer, 312 F. Supp. 411 (D. Vt. 1970). Moreover,
hairstyle is afforded protection because it can be “shadowed with political, philosophical, and
ideological overtones.” Id. at 419.
Here, Petitioner cannot meet its substantial burden of justification because it does not
have substantial governmental interest for implementing the haircut policy. Unlike limiting
certain types of hairstyles for health and safety reasons, the haircut policy is merely meant to
build togetherness through uniformity and promoting a positive image. These reasons fall short
of health and safety and academic performance, which have all been rejected as substantial
justifications. Crews, 432 F.2d 1259; Breen, 419 F.2d 1034; Holsapple v. Woods, 500 F.2d 49
(7th Cir. 1974). Petitioner’s stated interest only has to do with athletics, and only in a limited
sense. Petitioner haircut policy is not concerned with the athletes’ academics nor does it make
playing baseball safer. Additionally, voluntarily participating in school athletics does not justify
every policy a school might create. In order to create a policy that normally infringes on a
constitutionally protected interest, the school must have a special need. Vernonia Sch. Dist. 47J
v. Acton, 515 U.S. 646, 657 (1995). In Vernonia, the Court permitted warrantless drug testing of
student-athletes because those students had voluntarily chosen to participate and the school had a
substantial interest in keeping the students safe. See id. Unlike drug testing, the haircut policy
does not further any safety interest. Without a compelling interest in addition to the voluntary
nature of participating in interscholastic athletics, schools cannot impinge upon constitutionally
13
protected interest. See cf. Tinker v. Des Moines Indep. Comm. Sch. Dist., 393 U.S. 503 (1969)
(holding students do not “shed their constitutional rights to freedom of expression at the
schoolhouse gate”); Regan v. Taxation Without Representation, 461 U.S. 540, 545 (1983)
(stating the government cannot deny a benefit, even if the person has no right to it, when a
constitutional right is exercised). In other words, if playing baseball is a privilege because the
athletes have to volunteer, the government cannot bar them from participating if they exercise a
fundamental right. Therefore, Danny Amendola cannot be required to waive his fundamental
right to control his bodily appearance in order to participate.
Furthermore, Petitioner’s stated interest is not a compelling state interest because it is
woefully underinclusive. Petitioner wishes to be portrayed positively and has chosen athletes to
convey its message. The record, however, reveals only boy’s baseball and football are subjected
to a haircut policy that mandates a clean-cut. J.A. at 17–18, 34. No other boy’s team must help
promote a positive image, meaning spectators attending other games do not receive Petitioner’s
message. Also, Petitioner’s message does not reach any person watching a St. Paul’s girl’s team
compete. If Petitioner truly wanted to convey a positive image, it would have required all its
sports teams to promote the image. Likewise, the same rationale applies for Petitioner’s
uniformity interest; if the interest were true, the policy would apply to more than a discrete
subset because uniformity and building togetherness would be important on every team, boy’s
and girl’s. Moreover, the policy is not narrowly tailored to the stated interest assuming,
arguendo, it is valid. Petitioner can project a positive image in many other ways that do not
substantially affect appearance outside of the school setting. Instead of requiring a clean-cut,
Petitioner could require its athletes be showered and appear clean. Boys with long hair can pull
there hair back in the same way girls do while playing sports. Similarly, teaching players to
14
subordinate individuality to team unity can be accomplished by less drastic means. To teach this
lesson, coaches can bench athletes indefinitely for being selfish. It is not even proven that boys
having the same haircuts will feel united. See Holsapple v. Woods, 500 F.2d 49, 51–52 (7th Cir.
1974) (rejecting the correlation between grooming standards and behavior). Simply, Petitioner
has less restrictive alternatives available to achieve its stated interests that do not substantially
reach beyond the school walls.
II.
Alternatively, Petitioner’s Haircut Policy Exceeded The Bounds Of Proscribing The
Athletic Dress Code Because Petitioner Is Only Permitted To Regulate Clothing Or
Manner Of Clothing.
Petitioner has instituted a mandatory dress and grooming policy, Policy 5511. J.A. at 33.
The district court found that Policy 5511 provides, “in pertinent part,” that grooming guidelines
shall be established “as are necessary to promote * * * [an] environment conducive to academic
purposes.” Id. Additionally, “such guidelines shall establish the dress requirements for
members of athletic teams,” and the principle “should delineate what types of clothing or manner
of clothing” complies with Policy 5511. Id. (emphasis added). Attempting to act in accordance
with Policy 5511, Petitioner adopted St. Paul’s Athletic Code of Conduct (“Code”). Id. at 34.
The Code, inter alia, prohibits certain types of hairstyles that create health and safety concerns,
as well as call undue attention to the athlete. Id. The Code further provides that each varsity
head coach may determine the acceptable hair length for his or her team. Id. Acting pursuant to
this provision, the boy’s baseball coach enacted a clean-cut haircut policy, which was adopted by
St. Paul’s principle and Petitioner. Id. Determining acceptable haircuts, however, goes beyond
the authority granted by Policy 5511 to principles and individual schools because school’s may
not deviate from their own governing policies. Tiffany v. Arizona Interscholastic Ass’n, Inc., 726
15
P.2d 231 (Az. 1986) (holding athletic association violated its own policy, so the case was
remanded regardless of whether the plaintiff was victorious on the merits).
In Tiffany, per the athletic association’s policies, the plaintiff had become too old to play
interscholastic sports. Id. The policy, however, contained an exception allowing persons to old
to play to petition the association for reinstatement. Id. The exception required the athletic
association to exercise discretion over whether to grant the petition. Id. The athletic association,
however, stated it had another policy to never grant age exception petitions, and thus never
exercising the discretion the governing policy mandated. Id. Therefore, the court held that
plaintiff’s due process was violated because he was not granted the discretion he was entitled.
Ibid. The haircut policy at bar is similarly defective. Policy 5511 permits principles to
determine acceptable “clothing and manner of clothing,” J.A. at 33, not what hair length is
acceptable to play for a particular sports team. Additionally, the dress code and grooming
guidelines, including those applicable to athletic teams, are to be established to “promote
discipline, maintain order, secure safety of students, and provide a healthy environment
conducive to academic purposes.” Id. (emphasis added). Plainly, the boy’s baseball haircut
policy does not promote academic purposes, but rather athletic and administrative purposes—
team unity and promoting a positive image for the school’s benefit. J.A. at 34. Therefore,
Petitioner’s haircut policy violates Danny Amendola’s right to due process because Petitioner
was not allowed, by its own doing, to regulate beyond clothing or safety reasons.
16
III.
The “baseball rule” should not be applied in Tulania to define the duty of baseball
field owners towards the spectators because there is neither a compelling public
policy to a blanket limitation of liability for baseball field operators nor is there a
jurisprudential need for a bright line rule concerning negligence.
In any action for negligence, a plaintiff must establish four factors: (1) a duty requiring a
certain conduct; (2) a breach of that duty; (3) proximate cause between the breach of duty and
the injury suffered; and (4) actual damages suffered through the injury. See, e.g., Turpen v.
Granieri, 985 P.2d 669, 672 (Idaho 1999). Ms. Amendola has suffered an injury caused by a
batted ball at the defendant’s baseball stadium. J.A. at 36. In this case, the question is solely
whether or not the defendant had a duty to protect Ms. Amendola from harm. Generally, “[e]very
person . . . has a duty to exercise ordinary care to prevent unreasonable, foreseeable risks of harm
to others.” Turpen, 985 P.2d at 672. Further, landowners have a more specifically defined duty
depending on the status of the person on the landowner’s property; an invitee, like Ms.
Amendola, is a person entering onto the landowner’s property “for a purpose connected with the
business conducted on the land.” Ball v. City of Blackfoot, 273 P.3d 1266, 1270 (Idaho 2012).
Landowners owe an invitee a more specific duty than simple ordinary care; in addition to
keeping the premises in “reasonably safe condition,” a landowner must also “warn of hidden or
concealed dangers.” Id.
The owners of baseball fields and other sports venues have a more specifically defined
duty in some jurisdictions, where courts or legislatures have chosen to adopt the bright-line
“baseball rule” to limit liability in sports stadiums. See James L. Rigelhaupt, Jr., Liability to
Spectator at Baseball Game Who is Hit by Ball or Injured as Result of Other Hazards of Game,
91 A.L.R.3d 24 (1979 & Supp.2003) (hereinafter “Baseball Liability). The baseball rule was first
articulated in the early 1900s in order to define the level of duty owed to spectators injured by
errant balls or bats. See J. Gordon Hylton, A Foul Ball in the Courtroom: The Baseball Spectator
17
Injury as a Case of First Impression, 38 Tulsa L. Rev. 485, 491-92 (2003). The most common
formulation of the baseball rule is found in one of these early cases: “the duty imposed by law is
performed when screened seats are provided for as many [spectators] as may be reasonably
expected to call for them on any ordinary occasion.” Quinn v. Recreation Park Ass’n, 46 P.2d
144, 146 (Cal. 1935). This immunizes the landowner from the duty to screen all seats, and from
responsibility for injury occurring in the non-screened portions of the stadium. Id. As put by the
court in Cincinnati Baseball Club Co. v. Eno, “it is common knowledge that in baseball games
hard balls are thrown and batted with great swiftness,” so spectators assume the risk of being hit
and injured. 147 N.E. 86, 87 (Ohio 1925). Both the Eno and Quinn courts applied the “baseball
rule” to establish a limited duty of care which bars recovery for spectators who are injured while
not sitting behind screened-in areas in baseball stadiums without an inquiry into negligence. See
Quinn, 46 P.2d at 146; Eno, 147 N.E. at 87.
A. There is no compelling public policy requiring the application of the “baseball rule”
in Tulania because there is no need to establish a new duty of care and because such
public policy decisions are better suited for the legislative branch to answer.
1. There is no need to establish a new duty of care where no specific duty previously
existed in Tulania because of existing limits to duty and a lack of compelling public
necessity.
The courts should only establish new duties of care where none previously existed when
there is a fundamental relationship between the current duty of care and incidence of injury. See
Winn v. Frasher, 777 P.2d 722, 725 (Idaho 1989); Stephens v. Stearns, 678 P.2d 41, 50 (Idaho
1984). Despite the fact that a majority of states have adopted some form of the baseball rule, the
rule has not been adopted in Tulania and is an issue of first impression there. J.A. at 26. Because
the Tulania legislature has not enacted the baseball rule, the courts must decide whether or not to
judicially create a new duty of care. J.A. at 28. A similar example of courts choosing to enact a
18
new duty of care is in Winn v. Frasher, where the Idaho Supreme Court decided to adopt the
“fireman’s rule” to limit the duty of landowners towards first responder. 777 P.2d at 725. The
“fireman’s rule” provides that first responders cannot recover from a landowner if they were
injured by the conduct which required their presence on the property. Id. at 723. The Idaho
Supreme Court was not swayed by the number of other jurisdictions that have adopted the
fireman’s rule, but rather considered that an analysis of the underlying public policy was the only
appropriate way to decide whether or not to enact the rule. Id. at 724-725. The underlying public
policy was, in this case, to limit the duty owed in inevitably dangerous situations. Id. at 725
(citing Kreski v. Modern Wholesale Elec. Supply, 415 N.W.2d 178, 186-187 (Mich. 1987)). The
sheer likelihood of injury in situations involving firemen and the subsequent likelihood of
lawsuits from those injuries provided the compelling public policy for both Idaho and Michigan
to adopt a new duty of care. See Winn, 777 P.2d at 725; Kreski, 415 N.W.2d at 186-187.
Further, the courts should only establish new duties of care when the existing standards
are insufficient. See Basso v. Miller, 352 N.E.2d 868, 872 (N.Y. 1976); Scott v. Rizzo, 634 P.2d
1234, 1236 (N.M. 1981). The general rule for landowners is that they must exercise reasonable
care to prevent injuries under the circumstances. Basso, 352 N.E.2d at 872. Additionally,
Tulania respects the rule of comparative negligence, which equitably distributes damages based
on the cause of those damages. Rizzo, 634 P.2d at 1236; see A30. In Rizzo, the New Mexico
Supreme Court discussed the rationale behind adopting the rule of comparative negligence:
“Pure comparative negligence denies recovery for one’s own fault . . . and it holds all parties
fully responsible for their own respective acts.” 634 P.2d at 1242. Although Rizzo was concerned
with damages resulting from a car accident, many parallels exist in other areas of negligence
actions – including injuries caused at baseball games. Id. In fact, many states have allowed the
19
similar rule of contributory negligence to be applied to baseball situations. See Rigelhaupt, supra,
at 8 (listing cases in which contributory negligence has been used as a defense). For example, the
Washington Supreme Court held that a spectator, by choosing to sit in a seat with no protective
screening, could be liable for claims of both contributory negligence and assumption of risk.
Kavafian v. Seattle Baseball Club Ass’n., 177 P. 776, 777 (Wash. 1919). Comparative negligence
is merely a more refined approach to shared fault liability, and is similar in principle to
contributory negligence. See Rizzo, 634 P.2d at 1241. When it comes to baseball, the idea of
shared fault liability allows for a more nuanced and individualized analysis of an injured
spectator’s claim.
In this case, there is no compelling public necessity to establish the baseball rule to limit
duty as there has been in other cases where courts have established new limitations on duties.
See, e.g., Winn, 777 P.2d at 725. In Winn, the Idaho Supreme Court found that there was a
fundamental link between the danger confronting firefighters and the subsequent injuries
resulting in lawsuits. Id. Here, Ms. Amendola’s accident has been the only “major” injury
recorded as a result of a foul ball at the School Corporation’s Jesuit Stadium. J.A. at 28.
Additionally, there is little to no information to show that foul ball injuries present a dangerous
public problem in Tulania, and no information on how stadium designs and precautions might
vary the incidence of such a hypothetical problem. See J.A. at 28. Despite the fact that a majority
of jurisdictions do apply the baseball rule, such a “nose count” method of dictating state law
should not act as a substitute for a compelling public policy rationale. See Winn, 777 P.2d at 724.
Additionally, the adoption of a comparative negligence standard negates the need for a
special baseball rule in Tulania. See, e.g., Rizzo, 634 P.2d at 1236. The baseball rule acts to limit
the duty owed by owners of baseball stadiums in order to prevent lawsuits from injuries caused
20
during the normal course of the game. Quinn, 46 P.2d at 146; Eno, 147 N.E. at 87. However,
Tulania already limits the duty owed to landowners in this case through the application of
comparative negligence: all of the relevant facts regarding a spectator’s knowledge of the game,
choice to sit in an unprotected area, and any warnings given about the possibility of injuries may
be taken into account by the finders of fact when apportioning fault. J.A. at 30. A spectator’s
knowledge of baseball or choice of seat should not automatically preclude recovery, but instead
should be treated as any other finding of fact in a determination of negligence. Id. In fact, this
puts baseball stadiums in the same position as other landowners being required to exercise
reasonable care. See Basso, 352 N.E.2d at 872. In this case, the finders of fact should weigh Ms.
Amendola’s prior knowledge, choice of seat, actions during the game, and the safety precautions
taken by the School Corporation in determining whether or not, “in view of all the
circumstances, including the likelihood of injury to others,” the School Corporation should be
liable for Ms. Amendola’s injury. Id.
Accordingly, this court should not establish a new duty of care in Tulania by adopting the
baseball rule. Oliver Wendell Holmes, Jr. eloquently discussed the rationale for creating new
rules of common law in his 1881 work: “The life of the law has not been logic; it has been
experience. The felt necessities of the time . . . have had a good deal more to do than the
syllogism in determining the rules by which men should be governed.” O.W. Holmes, Jr., The
Common Law 1 (Boston, Little, Brown, & Co. 1881). Because there is no necessity for a new
rule in Tulania, there should be no action by the courts to apply the baseball rule to bar Ms.
Amendola’s recovery.
2. Public policy decisions like the “baseball rule” are better suited for the legislative
branch.
21
The courts should not unilaterally act to adopt rules of public policy because the
legislature has both the constitutional task of creating law and also the resources for proper study
of issues to determine the best course of action. See Rountree v. Boise Baseball, LLC, 296 P.3d
373, 379 (Idaho 2013); Anstine v. Hawkins, 447 P.2d 667, 679 (Idaho 1968). In both Rountree
and Anstine, the Idaho Supreme Court declined to adopt the Baseball Rule to limit stadium
liability for injury in part because the legislature had not acted to establish it as state law.
Rountree, 296 P.3d at 379, Anstine, 447 P.2d at 679. The Anstine court aptly stated the reason for
deference to the legislature on issues of public policy: the legislature “has the resources for the
research, study, and proper formulation of broad public policy” whereas the courts are
constrained to deciding the case at bar. 447 P.2d at 679. Without the voluntary submission of
extensive statistical data on safety studies for stadiums across the state, including various safety
mechanisms, incidence of injuries for each type of preventative measure, and the danger of
serious injury for each incident, the question of netting and duty in establishing the baseball rule
“becomes guesswork” by the court. Rountree, 296 P.3d at 379.
Additionally, adopting the baseball rule acts to foreclose the finder of fact from an
individual assessment of each case, and effectively freezes the law at a single point in time rather
than allowing it to change in response to new safety developments. Akins v. Glens Falls City
School Dist. 424 N.E.2d 531, 537 (N.Y. 1981) (Cooke, J. dissenting). As Judge Cooke notes in
his dissent, “the wisdom of eschewing such blanket rules where negligence is concerned is
obvious.” Id. at 536. The court should avoid such an “arbitrary and unrealistic” application of
judicial determination to what is necessarily a fact-intensive inquiry. Id.
In this case, the Tulania legislature has not adopted the baseball rule in statutory form, so
the court should refrain from enacting it judicially. J.A. at 30. Four other state legislatures have
22
chosen to take the step of creating baseball rule through legislation: Arizona, Colorado, New
Jersey, and Illinois. See Ariz. Rev. Stat. Ann. § 12-554 (1999); Colo. Rev. Stat. Ann. § 113-21120 (1994); N.J. Stat. Ann. § 2A:53A-43 (2006); 745 Ill. Comp. Stat. Ann. 38/10 (1992). Ms.
Amendola’s case does not present enough detailed statistical information for the court to make
an informed decision about the full impact of adopting the Baseball Rule. See J.A. at 28-29. The
School Corporation does not provide an information on the prevalence of foul balls, how many
foul balls enter Ms. Amendola’s area of the stadium in the concessions area, the relationship
between lack of visibility of the batter and serious injury, the rate of injury across the state,
modern safety mechanisms employed at mixed-use stadiums, safety mechanisms common across
the state, and other facts pertinent to adopting a blanket rule. J.A. at 28-29, 36-37; see also Akins,
424 N.E.2d at 536-37 (Cooke, J. dissenting). There are far too many variables for the court to
insert itself into the formation of public policy reserved, in our limited system of government, for
the state legislature’s deliberation. See Rountree, 296 P.3d at 379.
B. Even should this court determine that the Baseball Rule should apply in Tulania,
the rule should not apply to the concessions area because it does not allow for a view
of the batter and it is not dedicated to viewing the baseball game.
The baseball rule should only apply to those areas of the stadium which expose a
spectator to the common and expected risks inherent to the game. See Maisonave v. Newark
Bears Prof’l Baseball Club, Inc., 881 A.2d 700, 707 (N.J. 2005) (superseded by statute as
described in Sciarrotta v. Global Spectrum, 944 A.2d 630, 631 (N.J. 2008)); Jones v. Three
Rivers Management Corp., 394 A.2d 546, 551 (Pa. 1978). In Maisonave, the plaintiff was
standing in line in the concessions area on the stadium mezzanine when he was hit by a batted
ball. 881 A.2d at 702. He was unable to see the field, nor was he even trying to keep watch over
events happening on the field. Id. at 703. The New Jersey Supreme Court, after affirming the
23
applicability of the baseball rule in New Jersey as it pertains to spectators in the stands, went on
to say that “a different standard of care may be appropriate for areas of the stadium outside the
stands.” Id. at 707-708. Such application of the baseball rule exceeds the rationale supporting the
rule’s application, and would change the scope of the rule from defining a duty to immunizing
stadium owners completely. Id. at 709.
Similarly, the court in Jones also refused to extend the application of the baseball rule to
areas outside the stands. 394 A.2d at 551-52. Ms. Jones was using an interior walkway of the
baseball stadium when she was struck by a foul ball. Id. at 548. While she could see one area of
right field, she was not able to discern that batting practice had begun on the field when she was
struck in the eye by a ball. Id. The Pennsylvania Supreme Court decided that the baseball rule
was only applicable to risks which are “common, frequent, and expected” in the game of
baseball. Id. at 551. There are many cases in which patrons to a baseball game have not been
barred from recovery for an injury caused at the game. See, e.g., Martin v. Angel City Baseball
Ass’n, 40 P.2d 287 (Cal. 1935) (holding for a plaintiff who had tripped over a beam at the top of
a staircase); Murray v. Pittsburg Athletic Co., 188 A. 190 (Pa. 1936) (holding for a plaintiff who
was struck by a swinging gate while in the grandstand). In those cases, the injury was not a
“common, frequent, and expected” facet of the baseball game. Jones, 394 A.2d at 551. Similarly,
a foul ball entering the interior concourse of a baseball stadium and striking a patron who is not
expected to be watching the game is not an inherent feature to the game of baseball. Id.
In this case, Ms. Amendola was not in an area of the field where foul balls were expected,
and she had understandably let down her guard. J.A. at 36. She was en route back to her seat in
the bleachers from a trip to the bathroom and was walking through the concessions area of the
stadium when she was suddenly struck in the jaw by a fly ball. Id. She had no forewarning of the
24
ball, she could not see the batter, and she could not see the ball coming. Id. The baseball rule
seeks to immunize stadium owners for injuries caused by the inherent risks to the game of
baseball, which includes even that fans can try and catch dangerous foul balls. See Eno, 147 N.E.
at 87. Once a fan has left the stands, however, she is no longer engaged in the action on the field.
See Maisonave, 881 A.2d at 708. Ms. Amendola was no longer in an area of the stadium for
which the baseball rule was designed.
Further, the concessions area does not exist to allow fans to pay attention to the baseball
game, so fly balls in that area cannot be conceived as common or expected. See Jones, 394 A.2d
at 551. Although it is foreseeable that a fly ball could enter the concessions are, no-duty rules are
not designed to protect patrons from “foreseeably dangerous conditions not inherent in the
amusement activity.” Id. It is inherently obvious to a seasoned baseball fan that fly balls will
enter the stands. See, e.g., Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 222 (Mich. 2001)
(“baseball patrons . . . are even hoping that they will come in contact with some projectile from
the field (in the form of a souvenir baseball).”). What is not inherently obvious is that baseball
fans are expected to guard at all times for fly balls, even when the field is not visible, they are not
attempting to watch the game, and those balls do not frequently enter an area in which they are
standing. Jones, 394 A.2d at 551. A fly ball is not an inherent risk walking through the
concessions area because such an activity is not dedicated to viewing the sport of baseball. See
Maisonave, 881 A.2d at 707. The School Corporation has not shown that fly balls into the
concessions area are “common, frequent, and expected” facets of the stadium, and Ms.
Amendola was not expecting an injury when she could not see the field. Jones, 394 A.2d at 551.
C. Conclusion
25
This court should hold that the baseball rule does not and should not apply in Tulania.
There is no compelling public necessity for a new limited duty rule specifically for baseball
stadiums because there is no link between the lack of a rule and an incidence of lawsuitspawning injuries. The use of comparative negligence is an existing tool that can be used to limit
frivolous lawsuits and function as the fairest way to assess the facts in each unique case.
Additionally, public policy decisions like the adoption of a new limit on duty are best left to the
legislature which has the resources and constitutional mandate to consider them. Even if this
court does choose to adopt the baseball rule, the rule does not apply to the concessions area in
which Ms. Amendola was struck by the ball because there was no reasonable expectation of
danger inherent to the act of walking through the area, an area which was not designed for the
viewing of baseball. This court should affirm the ruling of the appellate court and hold that the
baseball rule does not apply in this case.
Conclusion
For the forgoing reasons, this court should affirm the decisions of the Court of Appeals
for the Fourteenth Circuit.
Dated: January 11th, 2016
Respectfully Submitted,
Team 6
26