2014 Bulldog Case

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INTRODUCTION

From childhoods hour I have not beenAs others were I have not seen

As others saw.

- Alone, by Edgar Allan Poe (Jan. 19, 1809 - Oct. 7, 1849)

Of course, every single child is unique. Good parents and astute teachersknow this well. Perhaps ironically, the reality is that many teenagers work to hidethis phenomenon as they struggle to fit in with their peers who sometimes havezero tolerance for the perceived misfit. There are always a few, however, whocant or wont mask their uniqueness but place it prominently on display. They dothis in varying ways on a scale that runs from laudable to intriguing to coy to

maddening to downright scary.

A persistent (though almost certainly untrue) story concerns how theyoung Edgar Allan Poe got himself kicked out of the U.S. Military Academy. It issaid that, directed to appear for drill with his crossover cartridge belt and rifle, heshowed up adorned with these and nothing more. Edgar Allan Poe had otherways of garnering attention and he certainly did as, from soon after childhoodshour, his poetry and prose probed unexplored territories of the human psyche.

As we approach Edgar Allan Poes 200thbirthday, it is fascinating to thinkabout how he might have appeared to his schoolteachers. A key part of the job

of the teacher has always been to encourage that creative spark that marks eachunique individual. These days, however, when school violence has become while not common an undeniable and frightening fact of life, there are new andunsought responsibilities thrust upon the teacher. What are the parameters ofthis new vigilance that is called for?

In the 2008-9 mock trial case, we will examine this question by lookingthrough the eyes of the dedicated English teacher Tisby Hark and the heroiccoach Gymbo Spartan at what Principal Alix Talionis euphemistically calls theevents of January 20. Thats the day when Zak Nieman brought a loaded gun toschool. Should his teacher have seen red flags signaling the coming of that

fateful day and taken steps to prevent it or is the school merely using Hark as aconvenient scapegoat in order to cover up its own institutional shortcomings?

By the way, public school teachers in Washington State do all have certainlegal protections in their employment that were not granted to Tisby Hark in thesepages. Some legal liberties have been taken. Remember, this is a work offiction, and you shouldnt jump to conclusions about the state of the authors


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sanity or learning based solely on what he has written. Now, if you know him andhave concerns, thats different...

In keeping with the themes of this case, you should also know that theexercise of some creativity is certainly safe. Students should feel entirely free to

be creative in adding to Professor Posts examples of dangerous literature andto Gymbo Spartans coach-isms.

The author would also like to thank Professor Steven Bauer, who teachescreative writing at Miami University of Ohio (not Melpomene U.) for his insightsinto all the characters in this drama and to Connie Butler for her creative artistry.

W.L.D.

[email protected] 2008

CASE WITNESSES:

For the plaintiff:

Tisby Hark: English teacherPat Nieman: parent of ZakNorma(n) Post: noted author and literary criticVerne Small: Zaks locker buddy

For the defense:

Alix Talionis: Principal of Cedar High SchoolGymbo Spartan: physical education teacherDr. Jungian Schezz: psychologist, expert witnessRuemore Gavinoo: classmate and neighbor of Zak

TRIAL EXHIBITS:

Exhibit 1: Cedar High School Mission Statement

Exhibit 2: excerpt from Teachers Handbook

Exhibit 3: excerpt from Cedar H.S. Anti-Violence Policy

Exhibit 4: page 5, The Tell-Tale Ringtone by Zak Nieman

Exhibit 5: diagram of Cedar High School floorplan


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Stipulations:

The following facts and circumstances are agreed upon:

Zak Nieman is now a patient in a locked psychiatric ward in St. ElizabethsHospital. He is unavailable as a witness due both to his lack of mentalcompetency and his restricted status.

All acts of Alix Talionis were done on behalf of, and as an agent of, defendantCedar County School District.

Prof. N. Post and Dr. J. Schezz are qualified, and shall be allowed, to testify asexpert witnesses.

The diagram of the floor plan of the school is an accurate depiction and, in fact,

all the other exhibits are as they appeared as of the date of January 20, 2009.


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PLEADINGS


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SUPERIOR COURT OF WASHINGTONFOR CEDAR COUNTY

AT COLUMBUS

)TISBY HARK, )) NO. 09-2-06074-7 COL

Plaintiff, ))

v. ) COMPLAINT)

CEDAR COUNTY SCHOOL DISTRICT, ))

Defendant. )))

I. PARTIES, JURISDICTION & VENUE

1. Plaintiff Tisby Hark is a married person, residing in Columbus, CedarCounty, Washington.

2. Defendant Cedar County School District is a governmental entity locatedin Cedar County, Washington.

3. This Court has original jurisdiction over this matter and venue is properpursuant to R.C.W. 4.12.020 because the cause of action occurred in Cedar

County, Washington and pursuant to R.C.W. 4.12.025 because the defendantresides in Cedar County, Washington.

4. In pursuing this accelerated action, plaintiff expressly waives any claim todamages (other than back pay) but simply seeks immediate reinstatement.

II. CAUSES OF ACTION

1. FIRST CAUSE OF ACTION: BREACH OF EMPLOYMENT CONTRACT.On or about January 22, 2009 the Cedar County School District, acting throughits agent Cedar High School Principal Alix Talionis, wrongfully terminated the

employment contract of the plaintiff.

2. The aforementioned acts of defendant were done in direct violation of theterms of enforceable oral and written agreements entered into between thedefendant and plaintiff and were, therefore without legal authority and should bedeclared void and of no effect.


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3. SECOND CAUSE OF ACTION: WRONGFUL TERMINATION INVIOLATION OF PUBLIC POLICY. On or about January 22, 2009, the defendantCedar County School District, acting through its agent Cedar High SchoolPrincipal Alix Talionis, wrongfully terminated the employment contract of the

plaintiff for the reason that plaintiff was actively engaged in providing for theeducation of a particular student by nurturing said students individual talents forcreative thought and expression and effective communication.

4. The aforementioned acts of defendant were done in direct contraventionof clearly mandated public policies including the Washington Constitution, theRevised Code of Washington and the Cedar High School Mission Statementofficially adopted by the Cedar County School District. See, attached addendumto this pleading.

5. Accordingly, said act of termination is void and of no effect.

III. PRAYER FOR RELIEF

WHEREFORE, plaintiff Hark requests entry of declaratory judgment againstdefendant Cedar County School District declaring void and of no effect its effortsto terminate plaintiffs employment and directing plaintiffs immediatereinstatement.

Respectfully submitted,

/S/_______________________________, Attorney

Verified as true,

/S/______________________Tisby Hark, plaintiff


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Hark v. Cedar County School District

ADDENDUM TO PLAINTIFFS COMPLAINT

Washington Constitution, Article IX, section 1:

It is the paramount duty of the State to make ample provision for the educationof all children residing within its borders, without distinction or preference onaccount of race, color, caste or sex.

Revised Code of Washington, 28A.150.210:

Additionally, the state of Washington intends to provide for a public schoolsystem that gives all students the opportunity to achieve personal andacademic success To these ends, the goals of each school district shall beto provide opportunities for every student to develop the knowledge and skills

essential to:(1) Read with comprehension, write effectively, and communicate successfully ina variety of ways and settings and with a variety of audiences;(3) Think analytically, logically and creatively and to integrate differentexperiences and knowledge to form reasoned judgments and solve problems.

Cedar County School Districts Mission Statement for Cedar High School:

The Cedar High School community seeks to provide outstandingeducational opportunities so that all students may reach their intellectual,

creative, personal and social potentials. The school is committed to the notionthat creative expression and individual talents are best developed through thenurturing of innovation and risk-taking in a safe and supportive environment inwhich each student feels valued and respected.

We will endeavor to produce lifelong learners who will think logically,creatively and effectively for the benefit of themselves and their society. Whileever in pursuit of excellence, we recognize that frequently the highestachievement lies in the quest itself.


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AT COLUMBUS

TISBY HARK, )) NO. 09-2-06074-7 COL

Plaintiff, ))v. ) ANSWER

)CEDAR COUNTY SCHOOL DISTRICT, )

)Defendant. )

))

I. PARTIES, JURISDICTION & VENUE

1. Defendant Cedar County School District agrees with plaintiffs descriptionof the parties, with the bases for jurisdiction and venue and the conclusions that

jurisdiction and venue are proper.

II. ANSWER

1. ANSWER TO PLAINTIFFS FIRST CAUSE OF ACTION: BREACH OFEMPLOYMENT CONTRACT. Defendant Cedar County School District deniesplaintiff Harks claim of breach of contract in that there was no written contractand the oral contract was terminable at will. It was terminated by the will of thedefendant School District.

2. ANSWER TO PLAINTIFFS SECOND CAUSE OF ACTION: VIOLATIONOF PUBLIC POLICY. Defendant Cedar County School District denies theallegation that said termination violated public policy and, in point of fact, assertsthat doing so well served vitally important public policies.

III. PRAYER FOR RELIEF

WHEREFORE, defendant Cedar County School District requests entry ofjudgment against plaintiff Hark on all of plaintiffs claims and, further, seeks adeclaration from the Court that the termination of the employment relationship at

issue was lawful and is of full force and effect.


/S/________________________________, Attorney


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JURY INSTRUCTIONS


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Special Instructions for Hark v. Cedar County School District

No. ___1__

In this case, the plaintiff Tisby Hark claims that the defendant CedarCounty School District breached an employment contract in terminating Harksemployment and further claims that this discharge should be declared void asbeing in violation of public policy. If prevailing on either claim, the plaintiff will bereinstated as a teacher; if not, the discharge will be final. As to each of these twoclaims, the plaintiff bears the burden of proving the essential elements of theclaim by a preponderance of the evidence. The defendant Cedar County SchoolDistrict denies both of the claims.

No. ___2__A contract may be oral or in writing. It is a legally enforceable set of

promises. Such a promise is an expression that justifies the person to whom it ismade in reasonably believing that a commitment has been made that somethingspecific shall happen or not happen in the future.

In order for a promise or set of promises to be legally enforceable, theremust have been mutual assent. In order for there to be mutual assent, theparties must agree on the essential terms of the contract and must express toeach other their agreement to the same essential terms.

A duty of good faith and fair dealing is implied in every contract. This dutyrequires the parties to cooperate with each other so that each may obtain the fullbenefit of performance. However, this duty does not require a party to accept amaterial change in the terms of its contract.

The failure to perform fully a contractual duty when it is due is a breach ofcontract.

No. ___3__

An employment contract for an indefinite duration is an at-will contract. Itmay be terminated by the employer or the employee at any time, with or withoutcause.


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No. __4___

A narrow exception exists to the terminable-at-will doctrine. An employeris not free to discharge an at-will employee where the discharge wouldcontravene a clear mandate of public policy. To establish that this has occurred,

the employee must prove each of the following propositions:

a. the existence of a clearly mandated public policy;b. that discouraging the conduct in which the employee engaged

would jeopardize that public policy;c. the employees public-policy-linked conduct caused the

dismissal; andd. there was no overriding justification for the dismissal.

No. __5___A terminable-at-will employment relationship can, under certain

circumstances, be modified by the terms of an employee policy manual. A policycontained in an employee manual, promising specific treatment in specificsituations, may be enforceable if the employee has justifiably relied upon thepromise in remaining on the job. In effect, it becomes a part of the employmentcontract.

Oral representations, patterns of practice and whether or not there was aconspicuous disclaimer are factors to be considered in determining whether anysuch reliance was justifiable.

No. __6___

To establish a claim for breach of an employment contract, the employeemust prove each of the following three propositions:

a. The employer had made a promise that was a part of the employmentcontract either because:

1. It was mutually assented to; or

2. It had become a part of the contract through the employeesjustifiable reliance;b. The employer failed to keep the promise; andc. The employee was harmed by this breach.


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AT COLUMBUS

TISBY HARK, )) NO. 09-2-06074-7 COL

Plaintiff, ))v. ) VERDICT FORM

)CEDAR COUNTY SCHOOL DISTRICT, )

)Defendant. )

))

We, the jury, answer the questions of the Court as follows: (If you answeryes to either question, the plaintiff will be reinstated as a teacher; if you answerno as to both, the discharge is final.)

QUESTION NO. 1: Has the plaintiff Tisby Hark proven, by apreponderance of the evidence, the claim of breach of contract? _______

QUESTION NO. 2: Has the plaintiff Tisby Hark proven, by apreponderance of the evidence, the claim of discharge in violation of public

policy? _______

___________________________Presiding Juror


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PRETRIAL MOTION


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AT COLUMBUS

TISBY HARK, )

) NO. 09-2-06074-7 COLPlaintiff, ))

v. ) DEFENDANTS MOTION) TO EXCLUDE EVIDENCE

CEDAR COUNTY SCHOOL DISTRICT, ) OF SUBSEQUENT) REMEDIAL MEASURES

Defendant. )))

The defendant Cedar County School District anticipates that the plaintiff

will seek to present evidence at trial concerning measures taken by the CedarHigh School administration subsequent to the occurrence that gives rise to thislawsuit. These measures were taken by the School in good faith in connectionwith its ongoing obligation to provide a safe and healthy school environment.The plaintiff will, it is believed, seek to present these measures as an admissionby the School that it had somehow been negligent or culpable in creating somedeficiency in the earlier circumstances. The School District denies this and, inany event, hereby moves that this improper evidence be excluded at trial.

This request is based on the well-established principle that evidence ofremedial measures taken by a defendant subsequent to a plaintiffs injury are not

admissible to establish negligence or culpability. See, Evidence Rule 407. WhileWashington courts have not yet had occasion to apply this rule in precisely thissetting, the reasons for the rule strongly support this request. These include:

To encourage employers, manufacturers and public entities toalways be willing to change policies and procedures to make themsafer without fear that their actions will be used against them; and

To prevent the introduction of evidence that has little probativevalue and that may be confusing to the jury and unfairly prejudicialto the defendant.

Therefore, the defendant respectfully asks that its motion be granted andthat the Court exclude or restrict this evidence of subsequent remedial measures.


Counsel for Defendant


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AUTHORITY FOR PRETRIAL MOTION

Evidence Rule 407: Subsequent Remedial Measures

When, after an event, measures are taken which, if taken previously, would have

made the event less likely to occur, evidence of the subsequent measures is notadmissible to prove negligence or culpable conduct in connection with the event.This rule does not require the exclusion of evidence of subsequent measureswhen offered for another purpose, such as proving ownership, control, orfeasibility of precautionary measures, if controverted, or impeachment.

(Note: The Federal Rules of Evidence were first adopted in 1975 and, basedupon them, the Washington Rules of Evidence were adopted in 1979. All of therules are based upon the common law developed over many years by judges likeBaron Bramwell and Lord Chief Justice Coleridge to promote sound social

policies as well as the fairness of trials. For present purposes, the rule onsubsequent remedial measures is essentially the same under the federal rules,the Washington rules and the mock trial rules.)

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PERTINENT CASE LAW (as edited by the case author)

Columbia & Puget Sound Railroad Company v. Hawthorne, 144 U.S. 202(1892)

(Willard Hawthorne was injured when a pulley fell on him as he was operating atrimmer at a saw mill. Had the pulley been properly secured, the accident wouldnot have happened. At trial in Washington Territory, the judge allowed the jury tohear that after the injury the company made just such a change. The plaintiff gota sizeable judgment in the amount of $10,000 and the company appealed all theway to the United States Supreme Court which issued this decision.)

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Banks v. Seattle School District, 195 Wash. 321 (1938)

(Fourteen year old Nancy Banks was a student at John Marshall Junior HighSchool in Seattle. In her arts and crafts class, she was learning to operate afoot-powered printing press called Old Reliable. She was injured when her footgot caught between the uprising treadle and the cross bar. In her suit fordamages, the jury was told that, after the accident, the school placed a guard on

the treadle. She won the case and the judgment was affirmed on appeal withlittle analysis given of the subsequent measures issue. However, Justice JohnRobinson wrote a separate opinion to express his views in support of the schooldistrict.)

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Westmoreland v. CBS Inc., 601 F. Supp. 66 (Southern District N.Y., 1984)

(General William Westmoreland sued CBS for damages after the network hadrun a television show criticizing his role in the Vietnam War. The trial judge madethis ruling regarding the admissibility of an internal investigation by CBS.)

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Rocky Mountain Helicopters, Inc. v. Bell Helicopters, 805 F. 2d 907 (TenthCircuit, 1986)

(Rocky Mountain was using a Bell helicopter in a logging operation in Montanawhen it crashed killing both the pilot and copilot. Its theory was the accident wascaused by fatigue failure of the trunnion, the part of the helicopter that connectsthe mast with the rotor blades. Bell appealed a jury verdict in favor of Rocky

Mountain.)

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2014 Bulldog Case

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