DAVIS MOOT COURT COMPETITION

Transcription

1 6 "" #Z$ -4 THE JOHN W. DAVIS MOOT COURT COMPETITION WASHINGTON & LEE UNIVERSITY SCHOOL OF LAW TO: FROM: RE: All Participants The Moot Court Board 1981 Problem INTRODUCTION The case which you are to brief and argue is entitled Greenburg~ Watkins. It originated as a sports injury suit brought by co-plaintiffs James M. Greenburg and his wife Debra A. Greenburg against co-defendants Harold M. Watkins and Stamford Sox, Inc. The action was brought in United States District Court in the Western District of Drucker under 28 U.S.C After a jury trial, co-defendants Watkins and the Stamford Sox were adjudged jointly and severally liable to plaintiffs in the aggregate sum of two million dollars. The case is presently before the Twelfth Circuit Court of Appeals. Defendants appealed. certain rulings made by, Judge Sandra Miller during the trial. STATEMENT OF THE CASE Plaintiff James M. Greenburg and Debra A. Greenburg are citizens of the state of Drucker. Defendant Harold M. Watkins is a citizen of the state of Whittier; Stamford Sox, Inc. is a

2 -2- corporation incorporated under the laws of Whittier and has its principal place of business in that state. The amount in controversy in this action exceeds $10,000. Jurisdiction of the United States District Court for the Western District of Drucker was based on 28 U.S.C ISSUE I: SPORTS INJURY This case arose out of an incident which occurred on Sunday, January 16, 1977, a date known to many football fans as Super Sunday. Plaintiff James M. Greenburg was at that time an end on the offensive squad of the Milford Macks. Defendant Harold M. Watkins was a defensive safety for the Stamford Sox. Both teams, having won their respective conferences during the regular season, were playing that day in the Super Game to determine the champion of the World Football League. The Super Game marked the culmination of successful seasons for both players. James Greenburg, in his prime at 28 years of age and in his fifth year of professional football, led the WFL in receptions and total yardage as a receiver during the season. Harold "Mad Dog" Watkins, a seasoned veteran at 30 years of age and in his seventh season of professional football, led the WFL in interceptions that year. Excitement ran high during the two weeks preceding the Super Game. Coaches of both teams engaged their players in extensive "psych-up" drills. Such drills typically included physical contests involving blocking sleds and sand-filled dummies, accompanied by verbal encouragement. Even the owners of the

3 QjtfL...lj.r; -3- teams paced the sidelines during several practices, exhorting their players to greater efforts. Knowing that their respective performances could be crucial to the outcome of the game, Greenburg and Watkins exchanged words through the media about the upcoming game. Watkins, in answering a reporter's questions, stated, "Greenburg will catch no more than two passes on Sunday. I will stop him at any cost. This game means too much to me, my teammates and our fans to let one player prevent the Sox from winning." Two days later in a response to Watkins, also made to a reporter, Greenburg said, "Watkins doesn't scare me. He's a dirty player--has been all his career. I guess that's how he compensates for his lack of skill. Other players are scared of him and even the refs look away from his cheap shots, but I'm not afraid of him. I may only catch two passes on Sunday, but I'll be in the endzone when I do!" The game was hard-fought on both sides; the score was zero to zero at half time. Although Greenburg had caught the only two passes thrown to him, he had gained a mere 22 yards. After the second half kick-off, Greenburg's team had possession of the ball. On the first play of the half, Greenburg ran what is known as a "flag" pattern which took him into Watkins' terrl.tory. The quarterback threw a long pass which, films of the game revealed, Greenburg caught at the 50 yard line. At that time he was running down his own sideline, no more than two feet from the out-of-bounds line, and continued that path until tackled. The only player close to Greenburg was Watkins, who was closing fast. Watkins, the faster of the two players, ran alongside Greenburg

4 QJlfi-.ll.c -4- for three strides, grabbed Greenburg's facemask and quickly threw the receiver to the ground. James Childs, the back judge for the Super Game, witnessed the entire incident and threw his penalty flag when Watkins grabbed Greenburg's facemask. Watkins got up and Childs ordered him to leave the game; Greenburg did not move. The Milford team physician and trainers rushed to Greenburg's aid. It is undisputed that the quality of medical care from the time of the injury until the date of the trial was the best in every respect. Nonetheless, as a result of the injury to his neck sustained in the tackle, Greenburg was paralyzed from his neck down and will remain a quadriplegic for the rest of his life. Greenburg's suit against defendant Watkins was based on a theory of reckless misconduct; his suit against the Stamford Sox was predicated on vicarious liability of the team for its player's actions. Greenburg's complaint included a demand for money damages in the amount of two million dollars broken down as follows: medical expenses - $250,000; pain and suffering - $1,000,000; loss of future earnings - $750,000. Prior to trial, defendants moved to dismiss the claim pursuant to Fed. R. Civ. P. l2(b)(6). Defendant Watkins argued that, since he owed no legal duty to James Greenburg, plaintiffs had failed to state a claim upon which relief could be granted. Defendant Stamford Sox, Inc. argued that since Watkins owed no legal duty to Greenburg, vicarious liability for Watkins' conduct could not exist. Judge Miller denied the motion.

5 J6 UIRn-~~ Both players testified at trial concerning their respective statements made to the media prior to the Super Game. Watkins testified he had been injured earlier in the season by Greenburg during a regular season Macks-Sox game. According to Watkins, he had sustained two cracked ribs when he was tackled by Greenburg following an interception. Mr. Stanley Schaeffer, a member of the Stamford Sox, testified that Watkins had stated on several occasions in reference to this incident, "Greenburg better hope I don't get a hold of him. If I get a chance, I'm going to even the score. " On direct examination, Greenburg gave his account of the tackle and his injury. Greenburg admitted, on cross-examination, that he was aware that football was an injury-prone sport and that he had sustained injuries while playing professional football in the past. Greenburg introduced evidence of Watkins' reputation as a player known to make late hits, tackle punters and quarterbacks in an unsportsmanlike manner, and use his hands in violation of WFL rules. Three defensive secondary players from Greenburg's team testified that it was customary simply to push a receiver out of bounds when he was near the sideline, rather than tackle him, to end the play. When asked whether they would have tackled or simply pushed out of bounds a receiver in Greenburg's position, each player in turn said he would have pushed the receiver out of bounds. Watkins, in his own b~half, testified that, while it may have been customary to push a receiver out of bounds, he tackled Greenburg to make sure he would end the play.

6 -6- Testimony of several members of both teams indicated their belief that the entire first half of the game had been played in an unusually rough manner. They also acknowledged that the referees may have contributed to the rough nature of play since they appeared to be penalizing only the most obvious of fouls. Mr. Jerry Anthony, president of the WFL Officials Association and in attendance at the Super Game, qualified as an expert referee and stated, "I have never witnessed a more flagrant face-mask violation in 23 years of officiating." James Childs, the back judge who signaled the face-mask violation and threw Watkins out of the game, concurred with Mr. Anthony's testimony. Plaintiffs then introduced evidence of the employment relationship between Watkins and the Sox. Plaintiff's evidence focused on the existence of Watkins' player contract with the Sox and the services provided to Watkins under the contract, including accommodations, coaching, physical facilities and monetary compensation. Defendant Stamford Sox did not dispute that Watkins was its employee but attempted to rebut the claim of vicarious liability by relying on the testimony of the officials regarding the flagrancy of the face-mask incident. Plaintiffs put on evidence of damages in the same amounts alleged in the complaint. After both sides made their closing arguments to the jury, Judge Miller, over defendant's objection, charged the jury with the following instructions which are at issue on appeal:

7 J6 IJIJto jj.~ l.(a) The plaintiff has the burden of proving by the greater ' weight of the evidence that Mr. Watkins was reckless and that Mr. Watkins' recklessness was the proximate cause of the accident and any of the injuries to Mr. Greenburg. (b). Reckless conduct is acting with a reckless indifference to the consequences to another person when the defendant is aware of his conduct and is also aware, from his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another. 2.(a) The plaintiff has the burden of proving by the greater weight of the evidence that Mr. Watkins was the employee of Stamford Sox, Inc., that Mr. Watkins' conduct was reckless or intentional, that this reckless or intentional conduct proximately caused injury to the plaintiff, and that this injury resulted from conduct arising out of the employment. (b) Defendant Stamford Sox, Inc. is liable for all damages caused by the reckless or intentional conduct of Mr. Watkins which arose out of Mr. Watkins' employment as a professional football player for the Stamford Sox: (c) Conduct which arises out of employment is any conduct which stems from Mr. Watkins' job as a professional football player for the Stamford Sox. (d) An intentional act is one which is committed when the defendant desires to cause consequences of his act or he believes that the consequences are substantially certain to result from his act. (e) Reckless conduct is acting with a reckless indifference to the consequences to another person when the defendant is aware of his conduct and is also aware, from his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another. Defendants submitted the following alternative instructions concerning the legal duty, both of which were refused: A. If you find Mr. Watkins' conduct occurred during the normal course of a professional football game, you must find your verdict for both of the defendants. B.(l) The plaintiff has the burden of proving by the greater weight of the evidence that Mr. Watkins acted intentionally and that Mr. Watkins' intentional act was the proximate cause of the injuries to Mr. Greenburg. (2) An intentional act is one which is committed when the defendant desires to cause consequences of his act or he believes that the consequences are substantially certain to result from his act. Judge Miller also refused to give either of the following alternative instructions which the Stamford Sox requested concerning vicarious' liability:

8 -8- C. If you find that Mr. Watkins acted intentionally in his actions towards Mr. Greenburg, you must find your verdict for Stamford Sox, Inc. D.(l) The plaintiff has the burden of proving by the greater weight of the evidence that Mr. Watkins was the employee of Stamford Sox, Inc., that Mr. Watkins' conduct was reckless or intentional, that this reckless or intentional conduct proximately caused damage to the plaintiff, and that Mr. Watkins was acting within the scope of his employment. (2) Stamford Sox, Inc. is liable for all damages caused by the reckless or intentional conduct of Mr. Watkins while acting within the scope of his employment as a professional football player. (3) An act is within the scope of employment if it is incidental to the Stamford Sox' business and is done to further the Stamford Sox' business interest. If Mr. Watkins departed so far from his duties that his acts are no longer for the Stamford Sox' benefit or that he did not intend his acts to benefit the Stamford Sox, then his acts are not within the scope of employment. (4) An intentional act is one which is committed when the defendant desires to cause consequences of his act or he believes that the consequences are substantially certain to result from his act. (5) Reckless conduct is acting with a reckless indifference to the consequences to another person when the defendant is aware of his conduct and is also aware, from his knowledge of existing circumstances and conditions, that his conduct would probably result in injury to another. Defendants also requested the following instruction concerning assumption of the risk: E.(l) Where the defendant claims assumption of the risk as a defense, he has the burden of proving by the greater weight of the evidence that the plaintiff fully appreciated the, nature and the extent of a known danger; that the plaintiff voluntarily exposed himself to it; and that the plaintiff was injured as a result of the danger assumed. Assumption of the risk may be shown by the defendant's evidence or by the plaintiff's evidence. (2) If you find by the greater weight of the evidence that Mr. Greenburg fully understood the nature and extent of a known danger, and if he voluntarily exposed himself to it, he assumed the risk of injuring himself from that danger. The plaintiff cannot recover for injuries that proximately resulted from assuming the risk of a known danger. In refusing to give defendants requested instructions on assumption of the risk, Judge Miller cited, without discussion, Bourque~ Duplechin, 331 So.2d 40 (La. App. 1976).

9 J _URll-.ll.c: -9- The jury returned a verdict for plaintiff James Greenburg, finding defendants Watkins and Stamford Sox, Inc., jointly and severally liable for Mr. Greenburg's injury. Damages, totalling $1.5 million, were set as follows: $250,000 - medical expenses, $750,000 - pain and suffering, $500,000 - lost future earnings. Judgment was entered on the verdict. All motions normally made by a defendant in a civil action, including summary judgment, directed verdict, judgment n.o.v., and new trial, were made at the proper time in the action and denied by Judge Miller. ISSUE II: LOSS OF CONSORTIUM Plaintiff's wife, Debra A. Greenburg, joined the above action, alleging $500,000 in damages for loss of consortium. James M. Greenburg and his wife, Debra, each grew up in Milford, the capital of Drucker. While attending Milford High School together, James and Debra regularly and exclusively dated one another. Upon graduation from high school, they made plans to attend Drucker State University. In 1970, during their senior year at Drucker State, James and Debra began living together. At that time, James enjoyed notoriety as a star offensive end for the school's team. Macks of the WFL. James was subsequently drafted by the Milford Debra was graduated with a bachelor's degree in journalism. She accepted an offer to become a columnist for Women in Sports, a nationally prominent monthly sports magazine. James and Debra bought a condominium in Sunny Acres, a suburb of Milford. James became active in the condominium

10 .J...J.Lli.Il.-.~ ---~~ association and was soon elected president. Debra joined the local garden club and the Milford Junior League. She pursued her writing career at home, mailing draft articles to the magazine's editorial offices in New York City. Since the beginning of co-plaintiffs' cohabitation at Sunny Acres until the present, James and Debra have used James' surname and have held themselves out to the community as husband and wife. James and Debra have two children, James M. "Jimmy" Greenburg, Jr. who is now eight (8) years old, and Sally Anne Greenburg, who is now six (6) years old. Prior to the occurrence of James' debilitating injury, James, Debra, and their children frequently enjoyed camping and other vigorous outdoor activities together. In addition, James and Debra frequently took Jimmy and Sally to various cultural events in the area. School teachers of Jimmy and Sally consistently emphasized on the children's report cards that they seemed to be "well-adjusted and from a happy home." In September, 1976, James and Debra decided to formalize their relationship by getting married. They planned to marry on January 29, 1977, two weeks after the Super Game. However, as a result of the injuries sustained in the January 16 game, James remained hospitalized until September 15, James and Debra postponed the wedding until November 5, 1977 in order to allow James a period of convalescence. The couple was married on that date. As noted above, Debra alleged in her complaint damages totalling $500,000 in compensation for the claimed loss of her

11 "-~~ hus~and's consortium. Prior to trial, both defendants submitted a Rule 12(b)(6) motion to dismiss the complaint on the ground that it failed to state a claim upon which relief.could be granted. Judge Miller denied the motion, citing, without discussion, Bulloch~ United States, 487 F. Supp (D.N.J. 1980). At the jury trial, Mrs. Greenburg presented as evidence her own testimony and the testimony of several neighbors of the Greenburg's from Sunny Acres. Debra testified that because of James' quadraplegia he could no longer effectively aid her in raising their children. She further testified that, whereas prior to the injury James and she had shared household duties, Debra was now entirely responsible for the care and maintenance of the condominium. Finally, Debra stated that due to her husband's condition, the couple no longer enjoyed a satisfying sexual relationship. Expert medical testimony conclusively showed that James had lost all capacity to function sexually. The testimony of several neighbors indicated that James and Debra had always represented themselves to the community as husband and wife and that they had always seemed to have a happy "marriage." Defendants' sole evidence consisted of the testimony of Mrs. Sheila M. Williams, a next-door neighbor to the Greenburgs. Mrs. Williams testified that in late November, 1976, at the height of the Mack's season, she had heard Debra shout out to James, "You're always on the road with the team. help me with the kids or the condo anymore. You're never here to We never have a chance to be alone." Although Mrs. Williams did not hear James'

12 J,UUl-'l.C' response at that time, she testified that apparent altercations continued for the next few weeks immediately prior to the Super Game. Plaintiff's cross-examination of Mrs. Williams revealed that Mrs. Williams, as a frustrated writer, had for years been jealous of Debra's stature in the literary profession. After both sides made their closing arguments, Judge Miller, over defendants' objection, charged the jury with the following instruction: 3.(a) If you find defendant Watkins liable to plaintiff James Greenburg for the injury he sustained, you must then consider the claim of James Greenburg's wife, Debra Greenburg, for loss of her husband's consortium. (b) Loss of consortium involves a legal claim by one party for deprivation of the society, aid, comfort, companionship, and sexual services of another party where the deprivation or loss directly resulted from the tortious conduct of the defendant. This claim is available to a spouse who alleges loss of her spouse's consortium. This claim is also available to a party who suffers the elements of loss of consortium as a lawful spouse would. (c) If you find that plaintiff Debra Greenburg was deprived of the society, aid, comfort, companionship, and sexual services of co-plaintiff James Greenburg, that she was deprived of these as a lawful spouse would have been, and that this deprivation or loss was a result of the tortious conduct of the defendant, you must award her damages for such sum as will fully and fairly compensate her. The vicarious liability instruction given in ISSUE I was also given for ISSUE II, again over defendants' objection. Judge Miller also refused to give the following instruction proposed by the defendant: E. If you find, by the greater weight of the evidence, that marital discord between the plaintiff existed prior to the injury and you find that such discord was the sole cause of Mrs. Greenburg's loss of consortium, then you must deny her any recovery. If, on the other hand, you find that discord existed which contributed to but was not the sole cause of the loss of consortium, you must diminish her recovery in proportion to the amount of the discord. The jury returned a verdict for co-plaintiff Mrs. Greenburg,

13 -13- finding defendants jointly and severally liable for her loss of consortium and awarding her damages in the amount of $500,000. Judge Miller entered judgment on the jury verdict. Defendants' motion for a new trial was denied and this appeal was taken. ISSUES CERTIFIED FOR APPEAL The Twelfth Circuit has certified the following issues for argument on appeal: I. Both defendants appeal the judgment reached at trial, asserting that liability should not have been imposed. They argue that it was error to deny giving instruction A regarding the existence of a legal duty or, in the alternative, that such duty only extended to refraining from committing intentional acts, as stated in instruction B. Defendant Stamford Sox, Inc., appeals the finding of vicarious liability, asserting that the evidence established that Watkins acted intentionally and their requested instruction as to intentional conduct was erroneously refused. The Stamford Sox further assert that even if Watkins. was only reckless, the jury instruction given stated an improper standard of employer liability since Watkins acted outside the scope of his employment. II. Defendants appeal on two grounds. Defendants argue that because the plaintiffs were not lawfully married at the time the injury occurred, Debra was not entitled to recover for loss of consortium.

14 J6-14- Alternatively, defendants argue that in light of the $750,000 awarded to plaintiff James for pain and suffering, the $500,000 awarded to Debra was excessive, inappropriate, and constituted double recovery. In this connection, defendants further argue that Judge Miller erroneously refused defendants' proposed jury instruction concerning diminution of the damage award. MISCELLANEOUS The issues presented on this appeal are of first impression in the state of Drucker. Drucker statutory law recognizes a wife's right to sue for loss of consortium. Drucker statutes preclude recovery for loss of consortium in a wrongful death action. The recognition of a common law marriage is specifically precluded by statute. The issue of whether defendant Watkins' conduct was the cause-in-fact or proximate cause of plaintiff James Greenburg's injuries is not before the court on appeal. The existence of insurance, or its effect on any claim made, is not an issue on appeal. Damages, insofar as they relate to ISSUE I, are not on appeal. GOOD LUCK! The Moot Court Board