No. 02-2793

In the

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 2015

SAINT TAMMANY PARISH SCHOOL CORPORATION, et al.,

Petitioners,

v.

Patrick and Melissa AMENDOLA, on behalf of their minor child, Danny,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTEENTH CIRCUIT

BRIEF FOR RESPONDENTS

Team 16 Counsel for Respondents

i

QUESTIONS PRESENTED

I. Whether Tulania’s Haircut Policy Violates Plaintiff’s Due Process and Equal Protection Rights by Requiring Only Boys to Have Their Hair Cut above Their Ears, Eyebrows and Collar.

II. Whether the Baseball Rule Should Not Be Adopted in Tulania, Because the Doctrine Is Against Public Policy and It Does Not Apply to Injuries Caused by Foul Balls Entering an Unprotected Concourse.

ii

TABLE OF CONTENTS

QUESTIONS PRESENTED ............................................................................................................ i

TABLE OF CONTENTS ................................................................................................................ ii

TABLE OF AUTHORITIES ......................................................................................................... iv

STATEMENT OF THE CASE .................................................................................................... viii

ARGUMENT ...................................................................................................................................1

I. ST. PAUL’S HAIRCUT POLICY REQUIRING ONLY BOYS ON THE BASEBALL TEAM TO CUT THEIR HAIR ABOVE THEIR EARS, EYEBROWS, AND COLLAR IS UNCONSTITUTIONAL .................................................................................................2

A. St. Paul’s Policy Requiring Baseball Players to Cut Their Hair Short Violates Substantive Due Process Because the School Corporation Is Interfering with Danny’s Fundamental Right to Wear His Hair at the Length of His Choosing ...........................2

B. St. Paul’s Haircut Policy Requiring Only Boys to Wear Their Hair at a Short Length Violates Equal Protection ..............................................................................................6

C. As a Matter of Public Policy, This Court Should Find That the School Corporation’s Haircut Policy is Unconstitutional Because It Allows the School to Control Aspects of a Student’s Individuality ............................................................................................9

II. THE BASEBALL RULE SHOULD NOT BE APPLIED IN THIS CASE BECAUSE THE RULE GOES AGAINST PUBLIC POLICY AND BECAUSE AMENDOLA’S INJURY IS OUTSIDE THE SCOPE OF THE RULE ......................................................10

A. Adopting the Baseball Rule Would Violate Public Policy Because It Goes Against Modern Trends in Tort Law and Because Its Adoption Is Best Left to the Tulania Legislature ....................................................................................................................11

1. Most Courts Now Reject Assumption of Risk as an Affirmative Defense, Instead Favoring Comparative Negligence Standards .......................................................12

2. Legislatures Are Better Positioned than Courts to Adopt New Standards of Care and Restrict Liability ..............................................................................................15

B. Alternatively, If This Court Adopts the Baseball Rule, Amendola’s Injury Falls Outside the Scope of the Baseball Rule .......................................................................17

1. Being Hit by a Baseball while Walking on the Concourse is Not an Inherent Risk of Attending a Game ..............................................................................................17

2. The School Corporation Built Its Baseball Stadium with a Faulty Design, Which Increased the Risk that Spectators Would Be Hit by a Foul Ball ..........................19

iii

CONCLUSION ..............................................................................................................................21

iv

TABLE OF AUTHORITIES

United States Supreme Court Cases: Burson v. Freeman,

504 U.S. 191 (1992) .............................................................................................................3 Goldman v. Weinberger,

475 U.S. 503 (1986) .............................................................................................................9 J.E.B. v. Ala. ex rel. T.B.,

511 U.S. 127 (1994) .............................................................................................................9 Kelley v. Johnson,

425 U.S. 238 (1976) .............................................................................................................5 Keyishian v. Board of Regents,

385 U.S. 589 (1967). ......................................................................................................9, 10 Reno v. Flores,

507 U.S. 292 (1993) .............................................................................................................3 Tinker v. Des Moines Indep. Cmty. Sch. Dist.,

393 U.S. 503 (1969) ................................................................................................... Passim Washington v. Glucksberg,

521 U.S. 702 (1997) .............................................................................................................3 Wengler v. Druggists Mut. Ins. Co.,

446 U.S. 142 (1980) .............................................................................................................7 Williams v. Taylor,

529 U.S. 362 (2000)………… .............................................................................................1 United States Court of Appeals Cases: Bishop v. Colaw,

450 F.2d 1069 (8th Cir. 1971) .............................................................................................2 Bohen v. E. Chi.,

799 F.2d 1180 (7th Cir. 1986) .............................................................................................7 Breen v. Kahl,

419 F.2d 1034 (7th Cir. 1969) .............................................................................................2

v

Gfell v. Rickelman 441 F.2d 444 (6th Cir. 1971) ...............................................................................................3

Griswold v. Connecticut,

381 U.S. 479 (1965) ............................................................................................................3 Griffin v. Tatum,

425 F.2d 201 (5th Cir. 1970) ..............................................................................................3 Hayden v. Greensburg Cmty. Sch. Corp.,

743 F.3d 569 (7th Cir. 2014) .......................................................................................6, 7, 8 Holsapple v. Woods,

500 F.2d 49 (7th Cir. 1974) .................................................................................................2 Massie v. Henry,

455 F.2d 779 (4th Cir. 1972) ...............................................................................................2 Richards v. Thurston,

424 F.2d 1281 (1st Cir. 1970) ..............................................................................................2 Zeller v. Donegal Sch. Dist. Bd. of Educ.,

517 F.2d 600 (3d Cir. 1975).................................................................................................8 United States District Court Cases: Dostert v. Berthold Pub. Sch. Dist., 391 F. Supp. 876 (D.N.D. 1975) ..........................................................................................4 Dunham v. Pulsifer, 312 F. Supp. 411 (D. Vt. 1970) ...................................................................................4, 5, 6 State Supreme Court Cases: Akins v. Glens Falls City Sch. Dist., 424 N.E.2d 531 (N.Y. 1981) ...................................................................................... Passim Alsup v. Saratoga Hotel, 229 P.2d 985 (Idaho 1951) .................................................................................................10 Anderson v. Kan. City Baseball Club, 231 S.W.2d 170 (Mo. 1950) ........................................................................................17, 18 Anstine v. Hawkins, 447 P.2d 677 (Idaho 1968) ...........................................................................................15, 16

vi

Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552 (Ind. 1987) ...............................................................................................12 Berdeaux v. City Nat’l Bank, 424 So. 2d 594 (Ala. 1982) ................................................................................................15 Cincinnati Base Ball Club Co. v. Eno, 147 N.E. 86 (Ohio 1925) ....................................................................................................19 Coomer v. Kan. City Royals Baseball Corp., 437 S.W.3d 184 (Mo. 2014) ............................................................................17, 18, 20, 21 Edward C. v. City of Albuquerque, 241 P.3d 1086 (N.M. 2010) ...................................................................................12, 19, 20 Ford v. Bd. of Cty. Comm’rs, 879 P.2d 766 (N.M. 1994) .................................................................................................10 Gallagher v. Cleveland Browns Football Co., 659 N.E.2d 1232 (Ohio 1996) ............................................................................................19 Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546 (Pa. 1978) ..................................................................................17, 18, 19, 20 Lawson v. Salt Lake Toppers, Inc., 901 P.2d 1013 (Utah 1995) ................................................................................................10 Maisonave v. Newark Bears Prof’l Baseball Club, Inc., 881 A.2d 700 (N.J. 2005) ...................................................................................................20 Quinn v. Recreation Park Ass’n, 46 P.2d 144, 146 (Cal. 1935) .............................................................................................11 Rountree v. Boise Baseball, LLC, 296 P.3d 373 (Idaho 2013) .....................................................................................12, 15, 16 Sciarotta v. Global Spectrum, 944 A.2d 630 (N.J. 2008) ...................................................................................................16 South Shore Baseball, LLC v. DeJesus, 11 N.E.3d 903 (Ind. 2014) .....................................................................................10, 12, 16 Turpen v. Granieri, 985 P.2d 669 (Idaho 1999) .................................................................................................10

vii

Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706 (Minn. 1913) .........................................................................................10, 11 State Appellate Court Cases: Atlanta v. Merritt,

323 S.E.2d 680 (Ga. Ct. App. 1984) ..................................................................................20 Benejam v. Detroit Tigers, Inc.,

635 N.W.2d 219 (Mich. Ct. App. 2001) ............................................................................16 Emhardt v. Perry Stadium, Inc.,

46 N.E.2d 704 (Ind. Ct. App. 1943) ...................................................................................16 Lowe v. Cal. League of Prof. Baseball,

56 Cal. App. 4th 112 (1997) ..................................................................................17, 18, 19 Yount v. Johnson,

915 P.2d 341 (N.M. Ct. App. 1996) ............................................................................12, 13 Constitutional and Statutory Provisions: 745 Ill. Comp. Stat. 38/10 (2015) ..................................................................................................16 Ind. Code § 34-6-2-45 (2015) ........................................................................................................16 N.J. Rev. Stat. § 2A:53A (2015) ..............................................................................................16, 20 U.S. Const. amend. XIV, § 2 ................................................................................................. Passim Secondary Authorities: Leigh Augustine, Who Is Responsible When Spectators Are Injured While Attending Professional Sporting Events?,

5 U. Denv. Sports & Ent. L. J. 2 (2008) ............................................................................11 David Horton, Comment, Rethinking Assumption of Risk and Sports Spectators,

51 UCLA L. Rev. 339 (2003) ................................................................................11, 12, 14 Jonathan Klick & Gregory Mitchell, Government Regulation of Irrationality: Moral and Cognitive Hazards,

90 Minn. L. Rev. 1620 (2006) ...........................................................................................15 Matthew J. Ludden, Comment, Take Me Out to the Ballgame…but Bring a Helmet: Reforming the ‘Baseball Rule’ in Light of Recent Fan Injuries at Baseball Stadiums,

24 Marq. Sports L. Rev. 123 (2013) ..................................................................................13

viii

Alison G. Myhra, No Shoes, No Shirt, No Education: Dress Codes and Freedom of Expression behind the Postmodern Schoolhouse Gates, 9 Seton Hall Const. L.J. 337 (1999) .....................................................................................9 5 Jerome H. Nates et al., Damages in Tort Action §48.03 (2015) .................................................15 Restatement (Third) of Torts: Apportionment of Liability § 3 (2000) ..........................................13 Robert J. Thorpe, Comment, Way Out in Left Field: Crespin v. Albuquerque Baseball Club Rejects Nearly One Hundred Years of American Jurisprudence by Declining to Adopt the Baseball Rule in New Mexico,

17 Sports Law. J. 267 (2010) .............................................................................................13

ix

STATEMENT OF THE CASE

I. Danny Amendola’s Hair Was Longer than the School’s Haircut Policy Permitted.

On October 25, 2010, Danny Amendola (“Danny”) tried out for the baseball team at St.

Paul’s High School (“St. Paul’s”). R. 34. The coaches told Danny he would not be allowed to

practice or play for the team unless he complied with St. Paul’s Haircut Policy (“the Policy”).

Id. The Tammany Parish School Corporation (“the School Corporation”) previously instituted a

mandatory dress and grooming policy, which allowed principals to develop a dress code. R. at

33. As a result, the School Board approved St. Paul’s Athletic Code of Conduct (“the Code”),

which included restrictions on haircuts. R. at 34. The Code stated that “[h]air [s]tyles which

create problems of health and sanitation, obstruct vision, or call undue attention to the athlete are

not acceptable.” Id. Additionally, the Code gave each varsity head coach the discretion to

determine permissible hair length. Id.

Coach William Belichick, the head coach of the boys’ varsity baseball team, established

the Policy, which required boys on the baseball team to cut their hair above their ears, eyebrows

and collar. Id. A similar policy existed for the boys’ football team, but no other boys’ team at

St. Paul’s had this hair-length policy. R. 18. Additionally, no similar policy was enacted for any

of St. Paul’s girls’ teams, including softball. R. 13, 14, 17.

After telling Danny about the Policy, Belichick met with Danny’s mother, Melissa

Amendola (“Amendola”). R. 34. He told her the Policy promoted a “clean cut” image and

created “uniformity” in the interest of team unity. Id. At trial, these were also the only

justifications offered by the School Corporation. R. 9. St. Paul’s Principal Kraft and

Superintendent Goodell told Amendola that they also supported the Policy and would enforce it.

R. 34, 35. Amendola argued that Danny should not have to comply with the Policy because it

x

violated the Constitution. R. 35. She asked the School Board to hold a hearing on the issue, but

they refused. Id.

After Danny made the baseball team, he was allowed to practice three times, although his

hair did not conform to the Policy. Id. On November 4, 2010, however, Danny and a teammate

were removed from the team for violating the Policy. Id. Danny immediately moved to a

different school district, but the following school year, he returned to St. Paul’s and played on

the team with short enough hair. R. 35, 37. During his senior year, though, Danny tried out for

the team again while his hair was too long, and he was once again prohibited from playing. R.

37.

II. Melissa Amendola Was Struck by a Foul Ball while Attending a School Baseball Game.

While Danny was playing on the varsity baseball team, his mother attended a tournament

game between St. Paul’s and Jesuit High School on December 7, 2011. R. 36. Amendola had a

general admission ticket and sat in the open-seating, bleacher section of the stands, located along

the third-base line. Id. During the game, she went to the women’s restroom, which was located

at the back of the grandstand along the third-base side of the field. Id. She walked down the

steps, behind the stands, past the concession area on the ground level, and up another stairway to

the bathroom. Id. As she was returning to her seat, while passing the concession stand,

Amendola was struck in the jaw by a foul ball. Id. She never saw the ball coming, because she

could not see the batter from her location and was not watching the game. Id. Amendola lost a

tooth and required extensive dental work as a result of the collision. Id.

The School Corporation provided seats behind home plate that were shielded by a

protective net, but the screen did not extend to the area where Amendola was walking. Id. Each

ticket warned spectators that they assumed the risks and dangers that are inherent at baseball

xi

games, including getting struck by a ball or bat. R. 36, 37. Several warning signs were posted

throughout the stadium warning spectators of the risk of injury from thrown or batted balls. R.

37. An announcement at the beginning of each game also warned spectators to be alert for balls

entering the stands. Id.

Plaintiffs brought two claims against Defendant. R. 3, 4. The first claim challenged the

constitutionality of the Haircut Policy. R. 3. The second claim accused the School Corporation

of negligence leading to Amendola’s injury. R. 4. The district court found in favor of the

defendants on both counts. R. 54. The appellate court reversed the district court’s ruling, issuing

judgment for the plaintiffs on both counts. R. 31. Defendants appealed to the United States

Supreme Court, which granted certiorari. R. 2.

1

ARGUMENT

Plaintiffs, Patrick and Melissa Amendola, on behalf of their minor child, Danny,

respectfully ask this Court to affirm the appellate court’s ruling that the Haircut Policy is

unconstitutional. This Court should find that the ability of a student to wear his hair at the length

of his own choosing is a fundamental right. As such, any infringement on that right is subject to

strict scrutiny and will most likely fail because it lacks a compelling government interest.

Moreover, this Court should find that the Haircut Policy violates Equal Protection through

prima-facie sex-based discrimination. The Policy required only boys to wear their hair at a

certain length, while female athletes were not subject to the same or comparable grooming

standards. R. 17, 34. Therefore the Policy does not survive under intermediate scrutiny, either.

This Court should also uphold the appellate court’s decision not to apply the Baseball

Rule in Tulania. The Baseball Rule goes against public policy by immunizing stadium owners

from tort liability, thereby giving them less incentive to provide better fan safety measures.

Moreover, if Tulania wants to adopt the Baseball Rule, that process should be performed through

the legislature and not the courts. Legislatures are better suited to make decisions regarding

negligence standards because of their access to extrinsic data. Alternatively, if this Court finds

that the Baseball Rule should be adopted in Tulania, it should also find that the injury in this case

did not result from a risk inherent to the sport of baseball. As such, the School Corporation

should still be held responsible for Amendola’s damages.

The first issue presented turns on whether the district court appropriately found that the

Haircut Policy was not in violation of the Fourteenth Amendment. The second issue presented

involves whether the Baseball Rule should be adopted. Since both of these issues involve

questions of law, this Court will review de novo. Williams v. Taylor, 529 U.S. 362, 384 (2000).

2

I. ST. PAUL’S HAIRCUT POLICY REQUIRING ONLY BOYS ON THE BASEBALL TEAM TO CUT THEIR HAIR ABOVE THEIR EARS, EYEBROWS AND COLLAR IS UNCONSTITUTIONAL.

St. Paul High School’s Haircut Policy requires boys on the baseball team to wear their

hair shorter than their ears, eyebrows and collar. R. 32. This policy interferes with Danny’s

fundamental right to wear his hair at the length he chooses. This policy also violates Equal

Protection because girls on athletic teams at St. Paul’s are not subject to the same haircut

restrictions as Danny and the other boys on the baseball team. Therefore, the Haircut Policy is

unconstitutional.

A. St. Paul’s Policy Requiring Baseball Players to Cut Their Hair Short Violates Substantive Due Process Because the School Is Interfering with Danny’s Fundamental Right to Wear His Hair at the Length of His Choosing.

There is a split among the circuits regarding whether students have a fundamental right to

choose the length of their hair. Several circuits have recognized wearing one’s hair at a desired

length is a fundamental right. See Richards v. Thurston, 424 F.2d 1281, 1285 (1st Cir. 1970)

(“within the commodious concept of liberty, embracing freedoms great and small, is the right to

wear one's hair as he wishes”); Massie v. Henry, 455 F.2d 779, 783 (4th Cir. 1972) (right of

students to govern their personal appearance so long as they do not infringe on rights of others);

Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir. 1969) (federal Constitution protects students and

adults alike “from arbitrary and unjustified governmental rules”); Holsapple v. Woods, 500 F.2d

49, 51-52 (7th Cir. 1974) (“[t]he law of this Circuit is well settled that in a school context, the

right to wear one's hair at any length or in any desired manner is an ingredient of personal

freedom protected by the United States Constitution”); Bishop v. Colaw, 450 F.2d 1069, 1075

(8th Cir. 1971), (“among those rights retained by the people under our constitutional form of

government, is the freedom to govern one's personal appearance”). These circuit courts

3

recognize that students have a vital interest in expressing themselves freely, just like any person

beyond school grounds. As a result, these courts acknowledge that both students and student

athletes have a cognizable right to wear their hair at the length of their choosing.

On the other hand, some circuits have decided that students do not have a fundamental

right to wear their hair at any length. See Griffin v. Tatum, 425 F.2d 201, 203 (5th Cir.1970)

(schools have authority to construct rules and regulations because of their interest in school

management, which can include hairstyle regulations); Gfell v. Rickelman, 441 F.2d 444, 446

(6th Cir. 1971) (public school dress code policies that regulate hair length do not violate

substantive due process). These circuits recognize that sometimes important reasons exist for

schools to regulate hair length, though neither includes uniformity. Id.

A fundamental right is one that is “deeply rooted in this Nation's history and tradition.”

Washington v. Glucksberg, 521 U.S. 702, 705 (1997). In order to deprive a person of a

fundamental right, the government must show that “the infringement is narrowly tailored to serve

a compelling state interest.” Reno v. Flores, 507 U.S. 292, 302 (1993). See also Burson v.

Freeman, 504 U.S. 191, 199 (1992) (“a State must do more than assert a compelling state interest

-- it must demonstrate that its law is necessary to serve the asserted interest”). This is a heavy

burden and very difficult to justify. Reno, 507 U.S. at 301-02. The rule also applies to school

districts as governmental bodies. Accordingly, students are protected from “arbitrary and

unjustifiable governmental rules.” Id. The government has a “substantial burden of

justification” when it impedes a fundamental right. Id. (citing Griswold v. Connecticut, 381 U.S.

479 (1965)). In Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969), this

Court held that in order for a school board to impede a student’s fundamental rights, the policy

4

must survive under strict scrutiny. Id. Schools cannot violate a student’s constitutional right

without asserting a compelling government interest. Id.

Improving a team’s performance is not a compelling enough reason to require uniformity.

Dostert v. Berthold Pub. Sch. Dist., 391 F. Supp. 876, 882 (D.N.D. 1975). The school board in

Dostert prohibited male students from participating in extracurricular activities, including

athletics, if they did not adhere to the hair length policy. Id. at 878. The district court

understood that the right to wear one’s hair in a particular fashion is a fundamental right, and

thus applied strict scrutiny. Id. The court then held defendants must do more than merely show

“that requiring uniformity of hair length is rationally related to obtaining an extra degree of

success for their athletic programs.” Id. at 882.

In another case with facts analogous to the case at bar, a school board in Vermont created

a haircut policy for boys wishing to participate in extracurricular activities. Dunham v. Pulsifer,

312 F. Supp. 411, 420 (D. Vt. 1970). The school said that the policy was in place “for reasons of

discipline and the promotion of closer team work.” Id. at 414. After applying strict scrutiny,

however, the court found “[o]utside of uniformity in appearance, no evidence was introduced as

to advantages to be derived from the athletic code except the question of discipline for the sake

of discipline.” Id. If the rule is “an otherwise arbitrary or unjustified regulatory classification,

[the rule] cannot pull itself up by the bootstrap of its own existence.” Id. at 420. Because

“[u]niformity is not a reason in and of itself” to prevent an individual from wearing his hair at the

length of his own choosing, there was no compelling governmental interest and the court struck

the policy. Id. at 420.

In the case at bar, neither the School Corporation nor Coach Belichick offered another

rationale for the policy beyond “uniformity” and promoting a “clean cut” image. R. 9. Those

5

arbitrary interests are not enough to advance a compelling government interest, as expressed in

Dunham. Actually, those motivations essentially create “enclaves of totalitarianism,” which is

exactly what this Court previously attempted to avoid. Tinker, 393 U.S. at 511. Forcing student

athletes to wear their hair in a particular way would be contrary to the principle that “[s]tudents

in school as well as out of school are ‘persons’ under our Constitution.” Id.

While school uniforms might meet the standard for a compelling government interest,

school haircuts do not rise to the same level. “[T]he cut of one's hair style is more fundamental

to personal appearance than the type of clothing he wears.” Dunham, 312 F. Supp. at 419.

Moreover, “[a]n individual's personal appearance may reflect, sustain, and nourish his

personality and may well be used as a means of expressing his attitude and lifestyle.” Kelley v.

Johnson, 425 U.S. 238, 250-51 (1976) (Marshall, J., dissenting). Justice Marshall stressed that

“[i]n an increasingly crowded society in which it is already extremely difficult to maintain one's

identity and personal integrity, it would be distressing, to say the least, if the government could

regulate our personal appearance unconfined by any constitutional structures whatsoever.” Id. at

253.

Allowing the government to bypass the strict scrutiny standard would inherently take

“control over a citizen's personal appearance, [thus] the government forces him to sacrifice

substantial elements of his integrity and identity as well.” Id. at 251. Mandating that Danny

adhere to the school’s policy by abandoning his personality does not survive under such a

commanding standard as strict scrutiny. The policy requires Danny to sacrifice his own

“elements of personal integrity and identity” without a compelling governmental interest,

therefore the Haircut Policy fails to clear the rigid constitutional bar. Danny is a student and an

athlete, but more importantly, Danny is his own person beyond the boundaries of his school or

6

the baseball diamond. Any school rule that would control his existence beyond the hours of the

school day lacks a compelling governmental interest.

During school hours and the times reserved for extracurricular activities, students are

beholden to the requirements of their teachers and coaches, to a certain extent. A “coach must be

able to control within reasonable limits those aspects of a player's behavior which relate to his

performance as a contributing member of the team.” Dunham, 312 F. Supp. at 420. Likewise,

“[d]uring the actual competition, the coach's instructions must be accepted without question.”

Id. However, “[t]he coach's right to regulate the lives of his team members does have limits….”

Id. For example, “[a] coach may not demand obedience to a rule which does not in some way

further other proper objectives of participation and performance.” Id. “While conformity to

reasonable rules of conduct is essential, conformity for its own sake is dangerous.” Id. It does

little to prepare students to hold their own in a world filled with pressure to conform. Id.

For all these reasons, this Court should find that the right for a student to wear his hair at

the length of his choosing is a fundamental right, upon which the School Corporation infringed.

B. St. Paul’s Haircut Policy Requiring Only Boys to Wear Their Hair at a Short Length Violates Equal Protection.

The Haircut Policy not only violates Danny’s substantive Due Process rights, but it also

violates Danny’s Equal Protection rights. On its face, the policy explicitly treats male baseball

athletes and female athletes differently. For this reason, the policy is subject to intermediate

scrutiny and fails under such standard.

The purpose of “[t]he equal protection clause of the Fourteenth Amendment [is to

protect] individuals against intentional, arbitrary discrimination by government officials.”

Hayden v. Greensburg Cmty. Sch. Corp., 743 F.3d 569, 577 (7th Cir. 2014). When a person is

discriminated against based on their sex it “triggers intermediate scrutiny in the equal protection

7

context; the justification for a gender-based classification thus must be exceedingly persuasive.”

Id. Intermediate scrutiny is applied to sex-based discrimination because “[g]ender is a quasi-

suspect class….” Id. When discrimination occurs based on a gender-based regulation, the

governmental regulation or policy “must serve important governmental objectives and [ ] the

discriminatory means employed must be substantially related to the achievement of those

objectives.” Wengler v. Druggists Mut. Ins. Co., 446 U.S. 142, 150 (1980).

In the present case, the School Corporation’s Haircut Policy fails to serve any important

governmental objective. Even if this Court decided a worthy objective did exist, it would not be

furthered through active discrimination against one gender. The School Corporation cites

uniformity as its goal, but the means to achieve that objective are not substantially related to that

interest. The school only applies this policy to boys on the baseball and football teams. If this

was an important interest, it would apply to all athletic teams, regardless of gender. Instead, this

policy reflects a sex-based stereotype that boys should have short hair. This Court has cautioned

that “gender classifications that rest on impermissible stereotypes violate the Equal Protection

Clause, even when some statistical support can be conjured up for the generalization.” J.E.B. v.

Ala. ex rel. T.B., 511 U.S. 127, 139 n.11 (1994). There is no imperative provided by the School

Corporation to justify applying this policy only toward boys.

Having established that the policy fails any sort of important governmental objective, the

policy on its face is intentionally discriminatory as well. At “[t]he core of any equal protection

case is, of course, a showing of intentional discrimination.” Bohen v. E. Chi., 799 F.2d 1180,

1186 (7th Cir. 1986). On its face, this policy intentionally discriminates on the basis of sex by

only applying to boys wishing to play baseball or football. This policy does not apply to the

girls’ softball team or any other girls’ athletic teams at the school. R. 17. Girls can wear their

8

hair at any length they desire and are still allowed to participate in team practices and games. On

the other hand, boys, including Danny, must follow these rules in order to practice and

participate in competitions. As such, “[t]he intent to treat boys differently from girls is therefore

evident from the one-sided nature of the policy.” Hayden, 743 F.3d at 579. Likewise, “[a]

regulation which denies the student access to his education or to competitive sports merely

because his hair exceeds the length specified by the school regulation creates two classes of

students.” Zeller v. Donegal Sch. Dist. Bd. of Educ., 517 F.2d 600, 610 (3d Cir. 1975) (Rosenn,

J., dissenting). Here, the policy creates two groups: males who are required to keep their hair

short, and females who are not subject to the same or a comparable policy.

It is irrelevant that the policy does not apply to all boys’ athletic teams. The fact that “the

policy is not universally applied to boys does not negate the fact that it is based on sex.”

Hayden, 743 F.3d at 579. Boys like Danny, who want to play baseball, “are subject to a

requirement that girls are not.” Id. It does not matter that “other boys playing other sports are

not burdened by that requirement.” Id. The very premise of the “equal protection clause protects

the individual rather than the group, and the individual plaintiff in this case wishes to play”

baseball. Id.

Because the Haircut policy is only applicable to males on the baseball team, there is clear

evidence of intentional discrimination. The policy does not apply to any of the girls’ teams, so it

is discriminatory on its face because Danny is “subject to a burden that a girl in the same position

is not.” Id.

9

C. As a Matter of Public Policy, This Court Should Find That the School Corporation’s Haircut Policy is Unconstitutional Because It Allows the School to Control Aspects of Student’s Individuality.

It has long been understood that students, as well as student athletes, possess “rights

which the State must respect, just as they [students] themselves must respect their obligations to

the State.” Tinker, 393 U.S. at 511. Public schools help students develop the social skills needed

to become active members of society. “Clothing, hair, jewelry, and other aspects of personal

appearance communicate visual information about the person and his or her opinions, mood,

personality, and social and economic status.” Alison G. Myhra, No Shoes, No Shirt, No

Education: Dress Codes and Freedom of Expression behind the Postmodern Schoolhouse Gates,

9 Seton Hall Const. L.J. 337, 385 (1999). Personal style indicates that students recognize the

significance of their actions and value the message they are conveying. Id. at 386. “[A]ny rule

that requires individuals to look a certain way deprives them of the opportunity to define and

express themselves….” Id. at 386-87.

In order to force students to abide by intrusive rules and policies, those regulations must

serve and advance some sort of compelling government interest. Otherwise, the schools will

have the ability to create a militaristic system that forces students to adhere to the theory of

“foster[ing] instinctive obedience, unity, commitment, and esprit de corps.” Goldman v.

Weinberger, 475 U.S. 503, 507 (1986). Creating such a martial system in our public schools will

destroy the long-held theory that “[t]he classroom is peculiarly the 'marketplace of ideas.”

Tinker, 393 U.S. at 512. Students’ ability to express themselves through hair length or other

reasonable practices is essential so that “[t]he Nation's future … leaders [are] trained through

wide exposure to that robust exchange of ideas which discovers truth out of a multitude of

10

tongues, [rather] than through any kind of authoritative selection.” Id. (citing Keyishian v. Board

of Regents, 385 U.S. 589, 603 (1967)).

II. THE BASEBALL RULE SHOULD NOT BE APPLIED IN THIS CASE BECAUSE THE RULE GOES AGAINST PUBLIC POLICY AND BECAUSE AMENDOLA’S INJURY IS OUTSIDE THE SCOPE OF THE RULE.

To succeed in a negligence claim, a plaintiff must establish: (1) a duty, (2) a breach of

that duty, (3) a causal connection between the breach and the injury, and (4) actual loss or

damage. Turpen v. Granieri, 985 P.2d 669, 672 (Idaho 1999). A landowner has a duty to

reasonably maintain his property to ensure the safety of people on his land, considering “the

likelihood of injury to another, the seriousness of the injury, and the burden of avoiding the

risk.” Ford v. Bd. of Cty. Comm’rs, 879 P.2d 766, 771 (N.M. 1994). Negligence exists if the

owner knew of an unreasonable risk, should have expected invitees would not discover the risk,

and failed to exercise reasonable care to protect those invitees. South Shore Baseball, LLC

v. DeJesus, 11 N.E.3d 903, 910 (Ind. 2014). This landowner’s duty to maintain a safe property

extends to “defects or conditions which are in the nature of hidden dangers.” Alsup v. Saratoga

Hotel, 229 P.2d 985, 989 (Idaho 1951).

When a baseball stadium is the site of an injury, though, many jurisdictions apply a

limited duty doctrine instead, minimizing the responsibility of stadium owners. Lawson v. Salt

Lake Toppers, Inc., 901 P.2d 1013, 1015 (Utah 1995). Courts following this Baseball Rule

consider only: (1) whether the most dangerous part of the stadium – behind home plate – is

screened to protect spectators, and (2) whether there are enough seats available in that screened

section to meet the reasonably expected demand of fans in attendance on an ordinary day. Akins

v. Glens Falls City Sch. Dist., 424 N.E.2d 531, 533 (N.Y. 1981). Consequently, if an owner

provides protective netting in part of a stadium, and seats in that section are readily available to

11

the public, the owner has satisfied his limited duty of reasonable care and is immune from

liability. Wells v. Minneapolis Baseball & Athletic Ass’n, 142 N.W. 706, 708 (Minn. 1913). A

spectator who sits outside the screened section assumes the risk of being hit by a ball in foul

territory, precluding recovery of damages. Quinn v. Recreation Park Ass’n, 46 P.2d 144, 146

(Cal. 1935).

This archaic, yet pervasive, rule stands in opposition to modern legal principles that reject

assumption of risk as an absolute affirmative defense. As long as stadium owners provide

minimal fan safety, they avoid liability, while injured parties are continually left without a

remedy. These and other policy concerns underscore the importance of the Tulania Legislature

weighing the limited duty doctrine’s merits, rather than courts creating a new standard of care

independently. Therefore, the Baseball Rule should not be judicially adopted in Tulania.

Ordinary and comparative negligence standards should be applied instead, allowing Melissa

Amendola to recover for her injury.

A. Adopting the Baseball Rule Would Violate Public Policy Because It Goes Against Modern Trends in Tort Law and Because Its Adoption Is Best Left to the Tulania Legislature.

The Baseball Rule provides few exceptions to an otherwise absolute bar on liability when

a foul ball is hit into the stands during play. Leigh Augustine, Who Is Responsible When

Spectators Are Injured While Attending Professional Sporting Events?, 5 U. Denv. Sports & Ent.

L. J. 2, 7 (2008). If stadium owners fulfill their limited duty, plaintiffs are estopped from

proving their cause of action before a judge or jury, because the defendants cannot be held liable

for negligence. Akins, 424 N.E.2d at 534. This rule, however, does not incentivize stadium

owners to continually assess their safety standards, since minimal action is required only when a

stadium first opens. David Horton, Comment, Rethinking Assumption of Risk and Sports

12

Spectators, 51 UCLA L. Rev. 339, 367 (2003). Stadium owners “are in the best position to

consider new safety devices, procedures, and warnings.” Id. at 345. A sager approach, then,

would be to use ordinary negligence principles, where plaintiffs can attempt to prove to the trier

of fact that the defendant did not exercise reasonable care under the circumstances. Akins, 424

N.E.2d at 535-36 (Cooke, J., dissenting).

Several jurisdictions recently rejected the Baseball Rule on public policy grounds, in

favor of more generally applicable negligence standards. Instead of automatically absolving

stadium owners, Indiana applies typical principles of premises liability. DeJesus, 11 N.E.3d at

907. Claims involving sporting events should not be given special treatment and must be

subjectively analyzed. Beckett v. Clinton Prairie Sch. Corp., 504 N.E.2d 552, 555 (Ind.

1987). New Mexico only partially adopted the Baseball Rule by balancing the duties of ordinary

care for both spectators (to avoid injury) and stadium owners (to not increase risks). Edward C.

v. City of Albuquerque, 241 P.3d 1086, 1097-98 (N.M. 2010). The Idaho Supreme Court refused

to adopt the Baseball Rule in deference to the state’s legislature, determining that lawmakers

were better equipped to study the broad public policy implications of the rule, while the court

was best positioned to apply existing rules regarding landowner negligence. Rountree v. Boise

Baseball, LLC, 296 P.3d 373, 379 (Idaho 2013).

1. Most Courts Now Reject Assumption of Risk as an Affirmative Defense, Instead Favoring Comparative Negligence Standards.

The Albuquerque court’s decision to use a modified Baseball Rule reflects New Mexico’s

shift away from tort immunity. Courts in that state had been “[moving] forcefully towards a

public policy that defines duty under a universal standard of ordinary care, a standard which

holds all citizens accountable for the reasonableness of their actions.” Yount v. Johnson, 915

P.2d 341, 342 (N.M. Ct. App. 1996). Instead of “judicially declared immunity or protectionism,”

13

courts favor allowing juries to determine the accountability of parties to a lawsuit through

comparative negligence. Id. Juries consider several factors which could show the victim’s own

negligence, while also weighing the tortfeasor’s alleged negligent acts. Id. at 346. Using a

reasonable care standard “allow[s] the fact-finder to balance the degree of responsibility for the

injury between the fan and stadium owner,” reducing recovery as warranted. Matthew J.

Ludden, Comment, Take Me Out to the Ballgame…but Bring a Helmet: Reforming the ‘Baseball

Rule’ in Light of Recent Fan Injuries at Baseball Stadiums, 24 Marq. Sports L. Rev. 123, 135-36

(2013).

The Baseball Rule is deeply connected to the doctrine of assumed, or incurred, risk,

where a plaintiff knowingly assumes the risk of being injured by engaging in a specific action,

such as attending a baseball game. Robert J. Thorpe, Comment, Way Out in Left Field: Crespin

v. Albuquerque Baseball Club Rejects Nearly One Hundred Years of American Jurisprudence by

Declining to Adopt the Baseball Rule in New Mexico, 17 Sports Law. J. 267, 270 (2010).

Defendants can then use that assumption of risk as an affirmative defense to avoid tort liability.

Id. However, the law is trending away from completely barring relief simply because the

plaintiff undertook a risk, instead invoking the same reasonable care standard used to define the

defendant’s negligence. Restatement (Third) of Torts: Apportionment of Liability § 3 (2000),

cmt. c. The trier of fact considers whether the plaintiff acted reasonably encountering a risk,

weighing that against whether the defendant acted reasonably to prevent the harm. Id. If Tulania

operates under the Baseball Rule, courts would not need to consider reasonableness for either the

plaintiff or the defendant. The arbitrary results would be based on owners meeting the basic

requirement of providing netting behind home plate, ignoring other factors that could affect

liability.

14

Proponents of the Baseball Rule regularly cite Akins due to its simple two-part

requirement for stadium owner compliance. The dissenting opinion in that case, however,

criticized the majority for dictating specific, minimal protections required to satisfy the owner’s

limited duty in every situation. Akins, 424 N.E.2d at 536 (4-3 decision) (Cooke, J., dissenting).

The dissent cautioned that justices lacking either baseball or engineering expertise devised a

blanket rule without knowing what protections would have actually been adequate in that

situation. Id. A jury, on the other hand, could hear expert testimony in each individual case to

make that determination. Id. at 537. Lastly, the dissent criticized the majority’s position as

“certain to become outdated, if it is not already” due to technology advancements, changes in

public perception, and varying circumstances at every ballpark. Id.

Adopting the Baseball Rule in Tulania would go against the modern trend of using

universally applicable standards in tort law. Horton, Rethinking, at 345. Juries should

determine, based on specific circumstances, whether a defendant exercised reasonable care to

protect those in attendance. Id. at 367. This method would incentivize stadium owners to

correct potentially injurious conditions, where presently they might simply take no action to

avoid increasing risks. Id. at 368. Stadiums across the country would consequently adopt

uniform safety guidelines to comply with industry standards, safeguarding spectators regardless

of location or competition level. Id. at 373. The application of comparative fault, as in

Albuquerque, “would then weed out unmeritorious claims and reduce plaintiffs’ recoveries in

proportion to their responsibility,” thus avoiding cumbersome legal and financial obligations for

defendants. Id. at 370.

Ignoring ordinary negligence standards will overwhelmingly benefit stadium owners and

lead to more unresolved injuries, so Tulania should not adopt the Baseball Rule.

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2. Legislatures Are Better Positioned than Courts to Adopt New Standards of Care and Restrict Liability.

Rather than paternalistically legislating from the bench, courts should leave policy

decisions affecting citizens’ rights “to legislatures, which [are] better able to consider competing

values and marshal the evidence relevant to optimal institutional design.” Jonathan Klick &

Gregory Mitchell, Government Regulation of Irrationality: Moral and Cognitive Hazards, 90

Minn. L. Rev. 1620, 1662-63 (2006). The creation of a new standard of care is a decision best

left to legislatures. 5 Jerome H. Nates et al., Damages in Tort Action §48.03 (2015). That

assignment of rights and duties is “a policy matter peculiarly within the province of the

legislative as opposed to the judicial branch of government,” as courts are “ill-equipped” to

collect and assess relevant data. Berdeaux v. City Nat’l Bank, 424 So. 2d 594, 595 (Ala. 1982).

In Idaho, a season ticket holder left his seat at a minor league baseball game in order to

eat with his family at a restaurant inside the stadium. Rountree, 296 P.3d at 375. His seat had

been protected by netting, but the “Executive Club” next to the restaurant was not shielded. Id.

The plaintiff admitted that he began speaking with another fan and stopped paying attention to

the game, at which point he was struck by a foul ball. Id.

The Idaho Supreme Court rejected the Baseball Rule due to the unavailability of

thorough statistical data and analysis on the subject. Id. at 379. Because the accident was the

only major injury sustained in the previous seven seasons, the court believed a specialized rule

was unnecessary. Id. Additionally, without statistics showing the prevalence of injuries at

baseball stadiums and how those injuries could have been prevented by changes in stadium

design, the court would have been blindly guessing if it established a bright line test for a

stadium owner’s duty. Id. Alternatively, the Idaho legislature was better suited to decide

whether stadium owners required broad protection from negligence suits, because it had “the

16

resources of the research, study, and proper formulation of broad public policy.” Id. (quoting

Anstine v. Hawkins, 447 P.2d 677, 679 (Idaho 1968)). See also DeJesus, 11 N.E.3d at 909 (court

refused to adopt limited duty rule “by judicial fiat,” unconvinced that baseball required unique

rules beyond standard premises liability).

On at least two occasions, states legislatively adopted the Baseball Rule after courts

deferred to their law-making authority. See N.J. Rev. Stat. § 2A:53A-43 to -48 (2015), noted in

Sciarotta v. Global Spectrum, 944 A.2d 630, 636-37 (N.J. 2008); 745 Ill. Comp. Stat. 38/10

(2015), noted in Benejam v. Detroit Tigers, Inc., 635 N.W.2d 219, 221 n.5 (Mich. Ct. App.

2001). Legislation worked in the opposite direction in Indiana, however, leading to fewer

protections for stadium owners. In 1943, the state’s Court of Appeals found against a plaintiff

who had been struck in the head by a ball thrown by another spectator. Emhardt v. Perry

Stadium, Inc., 46 N.E.2d 704, 705 (Ind. Ct. App. 1943). The court based its decision on incurred

risk, because the plaintiff assumed the normal hazard of getting hit by a baseball when he chose

to attend the game. Id. at 706. That legal principle became obsolete years later, however, when

the Indiana Legislature passed the Indiana Comparative Fault Act, allowing lawsuits to continue

even if a plaintiff had assumed the risk. Ind. Code § 34-6-2-45 (2015), noted in DeJesus, 11

N.E.3d at 909.

If the Baseball Rule is applied now in Tulania, the state’s legislature might enact

statutory provisions in the future that would render that decision ineffectual and outdated, as in

Emhardt. Allowing the legislature to determine whether a new standard of care is necessary

conforms to established principles of judicial temperance, which the Rountree court articulated.

If Tulania’s elected representatives determine the Baseball Rule is sound policy, as legislators

did in New Jersey and Illinois, the limited duty doctrine will be supported by statutory authority

17

rather than malleable case law. As such, this Court should leave this decision to the Tulania

Legistature.

B. Alternatively, If This Court Adopts the Baseball Rule, Amendola’s Injury Falls Outside the Scope of the Baseball Rule.

The Baseball Rule only protects stadium owners from liability when an inherent risk of

the sport causes an injury. Coomer v. Kan. City Royals Baseball Corp., 437 S.W.3d 184, 196

(Mo. 2014). There is no need to warn spectators of dangers that are a necessary and obvious part

of the game, such as being hit by a foul ball while seated in the stands. Anderson v. Kan. City

Baseball Club, 231 S.W.2d 170, 172 (Mo. 1950). When an injury occurs outside the scope of

that implied assumption of inherent risks, however, normal rules of landowner negligence once

again apply. Jones v. Three Rivers Mgmt. Corp., 394 A.2d 546, 551 (Pa. 1978). Additionally, a

stadium owner has a duty not to alter or increase inherent risks for a spectator. Lowe v. Cal.

League of Prof. Baseball, 56 Cal. App. 4th 112, 123 (1997).

Being hit by a foul ball while walking inside a stadium’s concourse is not a risk inherent

to attending a baseball game. Additionally, the School Corporation increased the risk of injury

by designing its stadium with a gap in the concourse. Therefore, even if Tulania adopts the

Baseball Rule, judgment should still be issued in Amendola’s favor, because the cause of her

injury extended beyond the scope of the rule’s protections.

1. Being Hit by a Baseball while Walking on the Concourse is Not an Inherent Risk of Attending a Game.

When a spectator is injured by a foul ball while sitting in an unprotected seat, the

Baseball Rule clearly insulates the stadium owner, as long as the owner exercised due care in

providing the injured person with an opportunity to sit behind a protective screen. Anderson,

231 S.W.2d at 173. In Anderson, the fan was fully aware of the risk associated with sitting in

18

that location, because baseballs exiting the field of play and entering the stands is a “necessary

and inherent part of the game,” unchanged by taking ordinary precautions. Id. In a later

Missouri case, though, the Kansas City Royals’ mascot injured a spectator’s eye when it threw a

hot dog into the stands in between innings. Coomer, 437 S.W.3d at 188. The court determined

that the risk of being injured by the hot dog promotion was not a natural or essential component

of watching a game in person. Id. at 202. When an injury results from a risk that is not inherent

to attending a baseball game, a jury should be given the opportunity to consider the stadium

owner’s possible negligence. Id. at 199.

Even when a foul ball causes an injury, the risk is not inherent if outside factors increased

the danger. In California, a spectator was seriously injured by a foul ball while the home team’s

mascot was touching him. Lowe, 56 Cal. App. 4th at 114. The mascot’s distraction prevented

the plaintiff from seeing or reacting to the foul ball. Id. In deciding for the plaintiff, the court

emphasized that the fan was not “facing the field of play” when the injury occurred, because of a

condition created by the defendant ball club. Id. at 124. The activity of the mascot was not an

essential component of the game, because “the game can be played [without] such antics.” Id. at

123. Thus the risk of related injury was not inherent. Id.

Similarly, the Pennsylvania Supreme Court refused to extend the Baseball Rule to

injuries sustained in a stadium’s interior walkway. Jones, 394 A.2d at 552. The plaintiff was

walking to the concession area with her back toward the field when she was struck by a batted

ball. Id. at 548. The court held that the concourse opening which led to the injury was “not an

inherent feature of the spectator sport of baseball.” Id. at 551. A fan could not properly

anticipate the risk of being struck with a baseball in that location. Id.

19

In one of the earliest cases detailing the Baseball Rule, the Ohio Supreme Court

recognized that spectators generally assume the risk of being hit by foul balls. Cincinnati Base

Ball Club Co. v. Eno, 147 N.E. 86, 87 (Ohio 1925). The court based its decision on the theory

that “spectators can watch the ball and can thus usually avoid being struck when a ball is directed

toward them.” Id. An exception, however, existed when the injury occurred before a game

while players were conducting batting practice near the stands. Id. at 88. “In many situations, as

in Eno, there will be attendant circumstances that raise questions of fact whether an injured party

assumed the risk in a particular situation.” Gallagher v. Cleveland Browns Football Co., 659

N.E.2d 1232, 1237 (Ohio 1996).

Circumstances in the present case combined to create an unexpected risk of injury for the

plaintiff. The inherent risk of being hit by a baseball while attending a game does not continue

when fans exit their seats to use the bathroom or purchase concessions. Using the standard

expressed in Eno, Amendola was not able to watch the ball at all times while she was on the

concourse, thus preventing her from avoiding her injury. R. 36. Just like the plaintiff in Lowe,

she was not “facing the field of play” when she was struck, because of a dangerous situation

created by the defendant. Id. That danger in this case is the same as in Jones: an opening in the

concourse, allowing foul balls to reach unsuspecting guests. Due to these non-inherent dangers,

the Baseball Rule should not apply in this situation.

2. The School Corporation Built Its Baseball Stadium with a Faulty Design, Which Increased the Risk that Spectators Would Be Hit by a Foul Ball.

To benefit from the protections of the Baseball Rule, stadium owners must refrain from

increasing or altering inherent risks. Injuries might naturally occur while attending a baseball

game, but spectators can still recover damages if extraordinary circumstances, including stadium

design flaws, led to a specific injury. Albuquerque, 241 P.3d at 1097. “[W]hen a stadium owner

20

or occupant has done something to increase the risks beyond those necessary or inherent to the

game, or to impede a fan’s ability to protect himself or herself,” juries should decide whether an

organization breached its duty. Id.

Facing unsafe structural conditions is not an inherent risk of visiting baseball stadiums.

In various jurisdictions, a defective gate, a misplaced beam, and a hole in a walkway have all

exposed stadium owners to liability, because the resulting injuries were not commonly expected.

Jones, 394 A.2d at 551. Design flaws often include gaps in concourse walls or roofs, such as the

opening in the outfield concourse in Jones that led to a fan’s injury as she was walking to the

food stand. Id. at 548. The New Jersey Supreme Court faced this issue when a foul ball hit a

spectator who was buying a drink from a cart on the concourse. Maisonave v. Newark Bears

Prof’l Baseball Club, Inc., 881 A.2d 700, 702 (N.J. 2005), superseded by statute, N.J. Rev. Stat.

§ 2A:53A-43 to -48 (2015). The court opined that fans are particularly vulnerable to foul ball

injuries when they leave their seats, increasing the duty owed by stadium operators. Id. at 709.

When a young boy was struck by a ball while sitting in an exposed picnic area inside the

stadium, the court refused to grant the defendant judgment as a matter of law. Atlanta v. Merritt,

323 S.E.2d 680, 682 (Ga. Ct. App. 1984). The plaintiff alleged that the stadium’s deficient

design, which left a high-risk area unprotected, led to his injury, thereby making that fact a

question reserved for the jury. Id.

Courts adopting the Baseball Rule have been influenced by a guiding principle that

stadium owners cannot protect every person in attendance from inherent risks without

“fundamentally altering the game or the spectator’s experience of watching it….” Coomer, 437

S.W.3d at 196. Additionally, ordinary negligence standards are typically insufficient because

“the justification for not protecting spectators from [the risk of substantial injury] can be

21

expressed only in terms of amusement or entertainment value of watching the sport that brought

the spectators to the stadium….” Id.

These principles outlined in Coomer, though, do not apply to Amendola’s case. The

School Corporation designed its stadium so that the concession area was exposed to errant foul

balls, thus increasing the inherent risks of attending the game. R. 36. The defendant also

increased the danger by not installing a net or other type of barrier to seal the gaps in the

concourse. Id. The School Corporation could have protected unsuspecting attendees without

altering the game or the fans’ experience in any way, because fans do not generally continue to

watch the action when they leave their seats, so the entertainment value would not have been

reduced. The Baseball Rule “extends only to those risks that the home team is powerless to

alleviate without fundamentally altering the game or spectator’s enjoyment of it.” Id. at 197.

Therefore, under the circumstances of this case, the rule does not shield the defendant from

protecting the plaintiff.

CONCLUSION

WHEREFORE, Respondents respectfully ask this Court to affirm the decision of the

appellate court finding that the school’s Haircut Policy violates the Fourteenth Amendment and

holding that the Baseball Rule should not be adopted in Tulania.

Respectfully Submitted,

Team 16

Counsel for Respondents