mock trial exercises · 2017. 9. 9. · exercises for grades 3 –6 featuring winning cases from...

Mock TrialexercisesFor grades 3–6

Featuring winning cases from theNew Jersey State Bar Foundation’sLaw Fair 2016 Competition

Since 1992, the New Jersey State BarFoundation has sponsored a unique, law-related education opportunity for elementaryschool students—the Law Fair Competition.

Students in grades three through six areinvited to create original mock trial cases. Thecases are judged on the basis of originality andeducational value in teaching students abouttheir legal rights and responsibilities. Winnersare selected in each grade level. The trials arethen conducted before student audiences atspecial Law Fair programs in the spring. Thethird- through sixth-grade audiences serve asjuries.

Following are the winning students’ cases fromthe Law Fair 2016 Competition. They may beused as a guide to prepare a submission to theLaw Fair Competition or as a classroomexercise. Please note that some of the casesmay contain “laws” created by the students forthe purposes of this competition, which maynot necessarily be actual laws. Since thesemock trials were written by children, thecontent should not be considered technicallyaccurate.

These exercises were created by children andare intended for school use only. Anyresemblances to characters, names, events and

circumstances are intended only for thepurpose of education, and all characters,names, events and circumstances describedherein are fictitious.

Because this booklet contains cases written bystudents from third through sixth grades,teachers should review the cases written bystudents in the upper grades beforedistribution in order to determine whetherthey are appropriate for younger children.

Law Fair has won national recognition foreducational excellence from the American BarAssociation and the American Society ofAssociation Executives.

This project is made possible by funding fromthe IOLTA Fund of the Bar of New Jersey.

If you would like to participate in the Law FairCompetition, please call 732-937-7519 or e-mail [email protected].

For information about other free, law-relatededucation services available from the NewJersey State Bar Foundation, visit us online atwww.njsbf.org.

© 2016 New Jersey State Bar Foundation. All rights reserved.

PreFace

M o ck Tri a l E x ErcisEs | Gr a d Es 3–6

The Case of the Cooking Catastrophe: The Sizzle Family v. the Hibachi Steak House . . . . . . . . . . . . . . . . . . 2

The Case of the Bucking Horse:The Vacay Family v. Lake of Fun Resort . . . . . . . . . . . . . . . . . . . . . . . 9

The Case of the Backyard Pool Party:The Hertz Family v. the Holmes Family . . . . . . . . . . . . . . . . . . . . . . 17

The Case of the Soaring Cheerleader:Connie Ussion v. Miss Ing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Penny’s Penny?: State v. Diddy Steal . . . . . . . . . . . . . . . . . . . . . . . . 32

The Case of the Bitten Boy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

The Case of the Injured Basketball Star:Victim v. Police Department . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

Electro Exposed: Audrey N. Appropriate v. Electro Prep and A. Hacker . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44

I Need a Ride! . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48

Show and Tell Fairness?: Dijuno v. Evergreen Elementary School . . . 51

Federate v. Casino City Board of Education . . . . . . . . . . . . . . . . . . . 56

Fire Drill Drama: Hurt v. Belle Board of Education . . . . . . . . . . . . . 62

1

conTenTs

2 M o ck Tri a l E x ErcisEs | Gr a d Es 3–62

school

Mill LakeMonroe TownshipGrade 3, First Place

Teacher

Bethanne Augsbach

sTudenTs

Matthew BassilyLogan FotiadisKatilyn McGuireAlexa PaffJoey SeylazManika VaidyaChristian VegaJustin Windrem

FacTs

On Friday, January 15, 2015, Sally Sizzle was going tocelebrate her 8th birthday at Hibachi Steak House. Herparents, two elderly grandparents, three siblings and four ofher friends were on their way to the hibachi restaurant fordinner. They were laughing and talking while sitting intraffic. They were in the car for about 45 minutes.

They arrived at the restaurant at 6:15 p.m., 15 minutes latedue to the traffic. Their reservation had been given away toanother party and now they had to wait an additional halfhour for a table to become available. The kids were gettingrestless and bored when they spotted a koi fish pond in thecorner of the waiting room. There was a sign over thewindow that said: “Please do not throw objects into thepond.” Upon seeing coins in the pond, Sally started makingbirthday wishes while tossing coins in the pond. Her friendsthen joined in on the action. The manager came over andasked Sally and her friends to stop.

The children then noticed the jar of complimentarypeppermints on the hostess stand. Each child took a fewpeppermints. Thirty minutes later, they were directed to aroom that contained two hibachi tables. The tables had alarge grill in the center where the chef prepared the food.The grill was encased in a foot and a half wide counter top.The customers sat on the outside facing the grill. TheSizzles’ group sat with one adult between every other child,with Sally in the center. The family could feel the heat fromthe grill while they were waiting for the server to take theirorder.

The case oF The cooking caTasTroPheThe sizzle FaMily v. The hibachi sTeak house

M o ck Tri a l E x ErcisEs | Gr a d Es 3–6 33

The server came over and took their drinkorders. Approximately 10 minutes later theyreceived their drinks. The waiter then began totake their appetizer and dinner orders. Therestaurant was crowded so they had to waitabout 20 minutes until the chef, Terry Aki, wasdone cooking for the other table. At this time,the chef arrived with a cart loaded with thenecessary supplies needed for their meals.

Once the chef was ready, he invited Sally tostand beside him since it was her birthday. Shewas excited and said, “Sure, yippy!” The chefbegan by drawing a smiley face in oil on thegrill. The oil heated up and started to pop andsizzle, amusing the children. Once the hot oilcooled and fizzled out, the chef placed Sally’shand on his hand and then made a secondsmiley face on the grill. Next, the chef lit thesmiley face on fire which entertained theparty!

Sally then tried to imitate Terry Aki, bygrabbing the oil and squeezing it on the grilljust like the chef did. More than fourtablespoons of oil flowed onto the grill directlyin front of Sally and the chef. The oil began topop and sizzle, splattering onto Sally’s arm andright hand. Sally screamed as the hot oilscorched her. Her parents jumped up and wentover to help while the grandparents comfortedthe frightened children. Her parents asked fora first-aid kit, but the chef said he did not haveone on his cart. The manager of the hibachirestaurant called 911.

The paramedics came and performed first-aidprocedures. The ambulance then took the girlto the ER for further treatment.

At the hospital, the doctor diagnosed Sallywith second and third degree burns on her

right hand and arm. The resulting injury wouldtake approximately a year to fully heal. Sallyneeded surgery for a minor skin graft.

Sally Sizzle and her family are suing theHibachi Steak House for $750,000 for medicalexpenses and all related costs, pain andsuffering, physical therapy and tutoringexpenses.

issueIs Hibachi Steak House liable for Sally Sizzle’sinjuries due to their negligence for notproviding a high degree of care, protection andsafety for the customers?

WiTnessesFor the PLaiNtiFFMary SizzleJeff Watchit

For the DeFeNSeHugh BachiTerry Aki

WiTness sTaTeMenTsteStimoNy oF mary SizzLeMy name is Mary Sizzle and I am Sally Sizzle’smother. As a result of heavy traffic due to anaccident on the highway leading to the HibachiSteak House, our 6 p.m. reservation wasunfairly given away just because we arrived 15minutes late. The hostess abruptly told us thatwe would have to wait an additional 30minutes for the next available table.

The children were very excited to celebrate mydaughter’s birthday and were disappointedwhen we were told that we had to wait. While


we waited, the children came across the koifish pond in the corner of the dreary waitingroom. We all noticed coins covering the bottomof the cluttered pond. My daughter joyfullybegan tossing pennies in the pond, making herbirthday wishes. Two of her friends joined herin gently tossing coins in the pond.

Suddenly, the manager stormed over andpointed out an old faded sign posted highabove the window, which was impossible tosee. Nobody knew it was there but themanager. The sign stated the one rule of thekoi pond, which was do not throw objects intothe pond. It didn’t say no coins, and there werealready coins in the pond, so how were wesupposed to know not to throw coins?

The manager, Hugh Bachi, was rude anddisrespectful and hurt the children’s feelings.The children apologized politely, but themanager just stomped away. Why would thechildren ever think it was against the rules totoss pennies in the pond when the bottom wasclearly covered with countless coins?

We had been waiting for approximately 20more long minutes when the children noticed abowl of complimentary peppermints on thehostess stand. Sally and her friends each tooka couple of candy mints to satisfy theirgrowing hunger. Again, the vulgar, angrymanager rushed over to shriek at the children.The peppermints were there for the guests totake freely. It seemed to me that the managerjust wanted to harass us.

When we were finally seated 10 minutes later,we had a parent sit near each child tosupervise and to make sure that no childtouched the grill. Once we were settled, weneeded to wait an additional 30 minutes for

the chef to arrive. Considering how long wewere waiting, Sally and the other childrenwere amazingly patient. We were all starvingby the time the chef, Terry Aki, asked, “Who isthe birthday girl?” Sally happily raised herhand and smiled. The chef then invited mydaughter to cook with him and said it was therestaurant’s special birthday tradition. Shecalmly walked around the table to join him.

Terry Aki entertained us by performing trickswith his utensils. He then made a smiley face onthe grill with the oil which he then lit on fire.This astonished the children and made themlaugh! Next, the chef guided my daughter’shand, on the oil container, letting go as theymade another smiley face on the grill. I wasshocked that Terry Aki let go of my daughter´shand, allowing her to finish the smile on herown. He then put the oil bottle down and nevertold my daughter not to touch it or warned herthat it could cause severe injuries.

My daughter assumed that since the chef putthe bottle down, it was her turn to imitate himand amaze her friends by making a smiley facewithout any help. After she squeezed the cheapplastic container, the oil quickly gushed out.The oil erupted like a volcano and burned mypoor daughter´s right arm and hand horribly.

I was petrified watching as my daughterscreamed in agony. I ran to my daughter’s sideand saw her hand turn red instantly whileblisters popped up covering her hand and arm.We immediately asked the chef to grab thefirst-aid kit but he didn’t know where to findone. Restaurants are required by law to havefirst-aid kits. This restaurant clearly violatesthe law and is poorly managed. The manager,Hugh Bachi, finally strolled in and called 911.


In my opinion, the restaurant should have hadprotective gear such as oven mitts, and splashguards, if their tradition is to ask youngchildren, like my well-behaved daughter,behind the grill. I assumed he would have hertoss out the raw vegetables that we could catchin our mouths. If I knew hot oil was involved, Iwould never have let Sally go behind the grillin the first place. Terry Aki knew full well thatthe grill was scorching hot and dangerous. Heshould never have asked Sally to help him withthe oil. It was the chef´s responsibility to warnand prevent Sally from touching anything onthe cart, especially the oil. Obviously the oilsquirts out quickly and causes severe injuries.

Sally suffered second and third degree burnson her right hand and arm and needed surgeryfor a minor skin graft that took a full year toheal. Manager Hugh Bachi, and the chef TerryAki, were undoubtedly negligent; therefore,the Hibachi Steak House should be held liablefor Sally’s injuries. They failed in their duty tokeep Sally safe because they did not have orfollow proper safety procedures. They shouldget rid of their awful tradition!

teStimoNy oF JeFF WatChitMy name is Jeff Watchit. I went to the HibachiSteak House with my wife, Natalie Watchit, onthe evening of Friday, January 15, 2015. TerryAki had just finished cooking the meal for uswhen he moved over to the next table. Ioverheard the chef invite a girl, who wascelebrating her birthday, over to help himcook. I thought it might be interesting andentertaining to observe the celebration. Iwatched as the family clapped and cheeredwhen the chef guided Sally´s hand in puttingoil on the grill, creating a smiley face. Ithought to myself, it was rather risky to have achild that young behind the grill.

I never heard the chef tell the girl not to touchanything on the cooking cart or the grill. Icouldn’t yell out fast enough as I saw Sally pickup the oil and squirt it onto the grill. I was notsurprised to see the oil flood out and splatterout of control because it was in a cheap plasticsquirt bottle, probably from a dollar store. Thechef never did a single thing to stop her. Thepoor child started shrieking and crying inexcruciating pain.

Her parents instantaneously ran beside herand asked the chef if he had a first-aid kit. Icould not believe it when I heard that he didnot have one handy. The manager entered theroom with his cell phone in his hand andcalled 911. The young girl was still crying inpain, clearly in agony!

After witnessing this incident, I will neverallow a family member of mine to go behind ahazardous grill in this hibachi restaurant. Thisincident could have been prevented if the chef,Terry Aki, had been in control of his grill, hissupplies and the cooking area. He should nothave asked the child behind the grill andabsolutely should not have left anything withinthe reach of a child.


teStimoNy oF hugh BaChiMy name is Hugh Bachi and I am the ownerand manager of the Hibachi Steak House. Onthe evening of January 15, 2015, at 6:15 p.m.,the Sizzle party entered the restaurant tardyfor their 6 p.m. reservation. Their awfulchildren were misbehaving from the verybeginning. For example, Sally, the birthday girl,began throwing coins in the koi pond eventhough there is a sign clearly stating forpatrons not to do so. I walked over to thechildren and very politely asked them to stop.They whined and complained when theycouldn’t have their way. I had to speak to themseveral times as they kept tossing coins in thepond, while their parents did nothing to stopthem. The parents were irresponsible, theyshould never have given the children coins tothrow into the koi pond in the first place.

Next, they spotted the jar of free peppermintson the hostess stand, meant for customers totake when they exit. The children grabbedhandfuls of the peppermints and startedgobbling them up. The excessive sugar suremade them hyper. They were wild, runningaround disturbing our customers! The parentswere too preoccupied with their cell phones totake notice of the kids greedily grabbing upalmost the entire jar of peppermints.

Shortly after wolfing down most of thepeppermints, the hostess seated the Sizzle partyat their table. It is my understanding thatbeverage and drink orders were taken in atimely manner. Our restaurant has a well-knowntradition of inviting folks celebrating theirbirthdays to assist in making a happy face on thegrill. In my 20 years of owning this restaurant,no one has ever gotten hurt while at the grill. Allof our chefs, including Terry Aki, have receivedproper safety and equipment training.

Our chefs are trained and practice the cookingroutine and performance they provide for ourcustomers as part of preparing their meals. Thechefs are professionals and always put safetyfirst. On the day of the accident, Terry Aki firstperformed his usual tricks with his utensils. Hethen made a smiley face on the grill with the oilwhich he then lit on fire with no glitches. Next,as is our tradition, Chef Aki propped thebirthday girl’s hand on his hand as he madeanother smiley face on the grill. The serverreported that Terry Aki never let go of the oilcontainer or Sally Sizzle’s hand. He would neverhave allowed her to finish the smile on her own.

After he finished with the happy face, he askedSally to return to her seat as he put the oilbottle in his cart. She did not follow directions,once again, as she grabbed the oil. There is noway our chef could have anticipated that thisreckless, disobedient child would grab the oiland spill it all over the sizzling hot grill. Herirresponsible behavior was the cause of herinjuries.

In addition, Sally’s parents should have takencontrol of all of the children in attendance,especially their own daughter. The unrulybehavior in the waiting room was allowed tocarry over into the dining room. Her parentswere so distracted cleaning a spilled soda fromanother child’s foolish behavior, that they didnot even notice Sally´s defiant and riskyactions. The girl´s parents should have beenmuch more responsible and should have bettermonitored Sally’s impulsive behavior.

My restaurant does indeed have a first-aid kiton the premises; however, it was not on ChefAki’s cart at the time. Upon hearing Sally’sscreams, I ran into the dining room and called911 immediately. The ambulance arrived


speedily and the paramedics treated herwounds skillfully before putting her on thestretcher.

teStimoNy oF CheF terry akiKonnichiwa! My name is Terry Aki and I havebeen a chef at the Hibachi Steak Houserestaurant for four years. On the night ofJanuary 15, 2015, I was working the dinnershift and was responsible for the two tables. Ihad just finished cooking the meals for theWatchit family and then moved over to theSizzle party where they were celebrating theireight-year-old daughter’s birthday. The waiterhad already brought out my cart loaded withall of the food and supplies that I would needfor their dinners.

Since it was a birthday celebration, ourrestaurant has a tradition that we call up thebirthday person to assist in making a smileyface. I invited Sally, the birthday girl, to comearound the table to stand beside me. I wascareful and made sure Sally was standing awayfrom the hot grill. I have made birthday smileyfaces at least a thousand times; I know myroutine and I keep my customers safe. I hadmy hand on the oil bottle and then placedSally´s hand on top of mine. At no time did Ilet go of the bottle and allow the girl to do thisindependently.

However, after I set the bottle back safely inmy cart, and asked Sally to return to her seat,the mischievous girl took it upon herself toreach for the bottle, instead of going back toher seat. Before I could grab the oil out of herhand, she had sprayed a massive amount of oilall over the grill. Her rambunctious behaviorand carelessness caused the accident. The oilquickly began to pop and sizzle out of control,splattering onto her hand and arm that she had

too close to the grill.

At the time of the incident, the adults at thetable were preoccupied with the other hyperchildren and were cleaning up a sticky spilledbeverage. None of the adults were payingattention to the birthday girl or supervising herwillful and uncontrolled actions. At no timedid I give her permission or instruction totouch anything on my cart.

When the hot oil splattered onto the girl´sarm, she began to scream out in pain, whichfinally caught her parents’ attention. They ranaround the table and grill to attend to theirdaughter. My manager quickly responded tothe commotion and came running into theroom. He promptly called 911.

We are not liable for Sally Sizzle’s injuries.Sally acted out impulsively and did not listento or follow my directions. Her parents evenhad difficulty keeping her calm and in control.I feel badly that Sally was injured, but we arenot responsible. Sally and her parents are atfault.

insTrucTionsThe Sizzle family must prove by apreponderance of the evidence that thedefendant, the Hibachi Steak HouseRestaurant, was negligent and caused SallySizzle’s injuries because they did not providean adequate level of care and safety.

sub-issues1. What are the parent’s obligations for

supervising their child while behind thegrill at the hibachi restaurant?

2. Does the restaurant have and follow

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proper safety procedures? 3. Should patrons, especially children, be

allowed to assist the chef?4. Should the Hibachi Steak House have a

first-aid kit on every food cart? 5. Should the adults in the Sizzle party have

monitored the children’s behavior rightfrom the beginning?

6. Is Hibachi Steak House’s birthday traditiondangerous?

concePTs1. Negligence.2. Duty.3. Parental responsibility.4. Preponderance of the evidence.5. Comparative negligence.6. Foreseeability.

laWsNegligence refers to the failure to exercise anexpected degree of care in order to minimizethe risk of injury to another. To be“negligent,” then, is to be the cause of aninjury to another for failing to act as areasonable person should. According to NewJersey negligence law, contributorynegligence must be less than the defendant’snegligence in order to collect damages.

Comparative negligence is considered if theplaintiff has contributed to cause the damagesby his or her own negligence. In such a case,plaintiff’s recovery will be reduced by thepercentage he or she contributed, so long ashis or her negligence is less than 50%.

Burden of proof is when the defendant has toprove the negligence of a plaintiff or claimant;the burden of proof is on a plaintiff to disprovehis or her own negligence. Even if the plaintiffwas negligent, the wrongdoer may still be held

liable, if he or she had the last clear chance toprevent the injury.

Proximate cause is when the plaintiff mustestablish by a preponderance of the evidencethat defendant’s negligence was a proximatecause of the accident. In other words, plaintiffmust establish that his injury is connected tothe defendant’s negligent actions.

Foreseeability aspect of proximate cause – theevent which is the primary cause of the injuryis established by proof that the person ofordinary intelligence and circumstances,should reasonably have foreseen that his or hernegligent act would imperil others.


FacTs

In July of 2015, the Vacay family, mom, dad and theirchildren, Sarah age 9, Brooke age 8, and Michael age 7,went on their annual outdoorsy vacation to Lake of Fun. TheVacays were on cloud nine as first-time visitors to the all-inclusive lake resort and were excited they got reservationsfor July 4th, a popular vacation week. They were excitedthat the resort offered many physical activities to participatein such as kayaking, swimming, boating, mini golf,horseback riding, fishing, tubing, water skiing, zip lining,and so much more. Guests are able to plan all their activitiesfor the week online and create their own schedule. TheVacay family worked together to create a jam-packed, fun-filled schedule of activities for their vacation week.

The Vacay family woke up bright and early on their first day,July 4, 2015, looked at their activity schedule, and headedfor the lake to go kayaking. The Vacays are experiencedkayakers and were at the dock ready to go at 7 a.m. Therewere no employees on the dock to assist them with thekayaks. The Vacay family untied the kayaks from the dockand headed out onto the lake. At 8 a.m. Mr. Vacay saw SkyWalker, activities manager, waving the family onto the dock.They were told the dock did not open until 8 a.m. and thatthey should have checked their schedule with the activitiesdesk at the main lodge.

The following day, on July 5, 2015, the Vacays were playingmini golf when Michael hit a ball that bounced off thewindmill on the 7th hole. His ball soared through the air,hitting a child on the zip line above the golf course. After theVacay Family finished playing mini golf, the weather began

school

Mill LakeMonroe TownshipGrade 3, Second Place

Teacher

Bethanne Augsbach

sTudenTs

Sean AlvarengaCeline DiazTaylor MendokerAarav ModiConnor PawliczakAarya RavalDaniella RubinoTrishana Wilson

The case oF The bucking horseThe vacay FaMily v. lake oF Fun resorT


to change; it started raining cats and dogs.

Although day three, July 6, 2015, was wet andrainy, the skies cleared around 4 p.m. Sarah hadalways aspired to be an equestrian so the familydecided to try horseback riding for the firsttime. They scheduled a 5 p.m. nighttime horseride. The ride included an hour-and-a-half trailride up to the top of a mini mountain range andback, a two hour BBQ with live entertainmentat the top of the mini mountain, and an old-fashioned hayride at the end of the evening.

After the Vacays arrived promptly at thestables, the horse hand instructed the familyon the basics of riding a horse and safetyprocedures. It was recommended that picturesbe taken at the stables before the ride, duringdaylight when a flash is not needed. The horsehand then assigned each family a guide andgave each person a helmet and a horse. Sarahneeded assistance with her horse.

The Vacays riding group included the Ryderfamily of three. Their guide, Sky Walker, ledthe whole group up the trail to the top of amini mountain to enjoy a spectacular view ofthe entire lake resort and have their BBQ whileenjoying the entertainment.

After dinner, everyone rushed to make surethey captured pictures of the lake lit up by thefull moon. Sarah mounted her horse to take aselfie with her selfie stick. She wanted picturesof herself on her horse to post on Instagram forall her followers. Sarah used her stick to holdher iPhone 6 Plus high in the air, pointed it atherself away from the horse’s head, andsnapped several pictures rapidly, causing herauto flash to go off. Suddenly, her horseMaximus began to whine while leaning backon his hind legs. He then quickly and

unexpectedly raised up his front legs andbucked Sarah, throwing her to the ground. Sherolled 50 feet down an incline and was finallystopped by a fallen tree.

Sarah broke her leg in two places, fractured herwrist, suffered a concussion and had majorfacial scarring. She needed two plastic surgeriesto mend some of the scars on her face. Sarahstill suffers from chronic migraines as a resultof her fall. Her injuries prevented her fromliving her normal day-to-day life. She washomeschooled for six months and was unableto participate in any extracurricular activities.

The Vacay family is suing Lake of Fun for $2million for all of Sarah’s medical expenses, thecost of their vacation, the expense ofhomeschooling and for pain and suffering.

issueIs Lake of Fun resort liable for Sarah Vacay’sinjuries due to their negligence, inadequatesupervision, and not having proper safety rulesand procedures?

WiTnessesFor the PLaiNtiFFLayla VacayLika Ryder

For the DeFeNSeZee Owna Sky Walker

WiTnesses sTaTeMenTsteStimoNy oF LayLa VaCayMy name is Layla Vacay. In July of 2015, myfamily arrived at Lake of Fun for a week-long


vacation filled with what we thought would befun and exciting outdoor adventures. Boy, werewe wrong!

One of the major reasons that we decided togo to Lake of Fun for the first time was becausethey have an online activity planner and sign-up page on their website. My family and I putour heads together and over the course of twoweeks we chose all of our recreation activitiesfor the week. Once we had the schedulecompleted, we hit enter and submitted ourschedule to Lake of Fun. We received aconfirmation email stating they had receivedour schedule so we thought we were all doneand our schedule was set.

On July 4th we went to the docks at 7 a.m.sharp for our scheduled activity, kayaking.Much to our surprise, no one was there toassist us and there were no signs postedmentioning opening times or rules. We knewwe were the first family of the day so weuntied the kayaks and headed out onto thelake. We assumed it was okay because thekayaks were there ready to go. If they didn’twant us to have access to the kayaks, theyshould have been locked up. The gates of thedocks were not even locked, poor managementif you ask me. Clearly someone overslept. Wedid nothing wrong, we were following ourapproved schedule.

The next day, after establishing with theactivities desk that our schedule wasconfirmed, for the second time, we went toplay mini golf. Michael, our wonderful, seven-year-old son, was having the time of his life.After lifting his golf club, he swung the ironthrough the air, sending the ball flying, causingit to accidently hit the windmill in the center ofthe hole. His golf ball hit the windmill and

ricocheted straight up into the air, accidentlyhitting the person zip lining above the course.

In my opinion, zip lining should not be abovethe mini golf course, or it should be placedmuch higher up in the air so there is no chancethat a stray ball can hit a rider. There were nosigns cautioning golfers to be aware of the zipline above. In addition, the windmill was ahuge obstacle in the middle of the hole, andbelieve me, it was nearly impossible not to hitit. Again, the management had poorly plannedthese activities and should have done a betterjob of ensuring the safety of their guests.

On the 6th of July 2015, when it finallystopped raining, we were excited our nighttimehorseback riding BBQ had not been cancelled.When we arrived at 5 p.m., the horse handswere just taking the horses out of the stables.Did you know that horses can see better thanhumans at night? Well, they can.

The hands gathered all the riders together,experienced and beginners alike, andexplained the basics of horse riding and therules. It was “suggested” that we take pictureson our horses before we left the stables. I neverheard anyone tell us definitely not to takepictures on the trail or at the BBQ. The rulesincluded following and listening to your guideand also to wear your helmet when on yourhorse.

Before heading out to the trail, we wereassigned our horses and our group. Our groupincluded the Ryder family, experienced riders,and my family. Mr. Ryder warned us thatSarah’s horse Maximus seemed to be restless. Iasked the horse handler if Sarah should get anew horse and he said, “No!” I was told he justneeded to stretch his legs after a long, rainy

11


day. I found too late that when horses arecooped up inside of their stables for two rainydays, like Maximus was, they can havebehavior problems. The handler should haveswitched horses when we told him Maximus’behavior was restless.

During the ride, Sarah’s horse continued to actout and misbehave by going too fast and notlistening to Sarah’s commands. Our guide, SkyWalker, told Sarah, “Hold on and show yourhorse who is in charge.” Sarah tried but shewas still struggling to keep control. The guidethen tried to calm the horse as she briefly rodealongside Sarah. I was worried even moresince the horse was not taking directions fromSky Walker either. My daughter looked veryintimidated so again I asked if it was safe forher to ride Maximus and Sky impatiently toldme, “Yes, please stop worrying. I have it undercontrol.” No, she did not!

When we reached the top of the mountain, at8:30, the BBQ and country band were set upand ready for us. We ate and danced whilemany guests took pictures of the moonlit lake.Sarah decided to take a selfie of herself onMaximus, with the view of the resort behindher, to post on Instagram. She put on herhelmet, climbed up on Maximus’ back andasked her brother to hand her the phoneattached to her selfie stick. Sarah used herstick to hold her iPhone 6 high in the air,pointed it at herself away from the horse’shead, and snapped several pictures rapidly.

Her auto flash did go on but she hadpurposefully pointed the camera high up andaway from the horse’s head so he would notsee the flash. Well, out of nowhere, Maximusreared up and bucked Sarah, throwing her tothe ground and sending her 50 feet down the

slope of the mountain. The flash went off byaccident, Sarah didn’t know the horse wouldsee it and get scared. No one told us thathorses have a panoramic field of view allowingthem to see behind their heads. But theyshould have.

I knew this ill-behaved horse was going to betrouble. He was misbehaving the entire ride. Ikept telling the horse hands and Sky Walker, Iwas worried but they just didn’t care or listen.My poor Sarah could have been saved from herinjuries if they had just done what anyreasonable person would have done andchanged her horse in the first place.

Sky Walker should have been with Sarah,holding the horse and reminding her to avoidusing flash. She was too busy talking to theother guests at the party. One guide was notenough supervision for two families. Duringour entire vacation, there was a lack ofsupervision. Lake of Fun should have had morestaff available to supervise all of the activitiesand ensure our family’s safety.

When Sarah plummeted down the mountain,she broke her leg in two places, fractured herwrist, suffered a concussion and had majorfacial scarring. Rescue and recovery had tocome up the trail to bring Sarah to thehospital. I would never recommend Lake ofFun, I mean horrors, to anyone. Themanagement clearly did not live up to itsresponsibility to ensure the safety of all itsguests.

teStimoNy oF Lika ryDerMy name is Lika Ryder. We were part of SarahVacay’s group on the BBQ night horse ride. TheVacay family and my family began the night bylistening carefully as the horse hands talked


about the safety rules and the basics of riding.Sarah and her family were paying attentionand also asked questions about the basics ofriding. They were a nice, friendly family andtheir children were well-behaved.

I noticed that the horses were only taken out ofthe stables right before we were ready to ridethem, due to the wet weather earlier in theday. Knowing that the horses had been in theirstalls for the past two rainy days, I was makingsure the horses my family were given were notrestless and disrespectful, just to be safe.

I warned the Vacay family that Sarah’s horseseemed restless and that this was probablybecause none of the horses were taken out atleast an hour before the ride to exercise.Horses need to run and gallop after beingcooped up over a long period of time or theirbehavior can be unpredictable. The handlersshould not have allowed Sarah to rideMaximus because he clearly appeared to berestless and would probably be disrespectful,meaning he would not take commands fromhis rider.

I saw Sarah struggle with Maximus riding upthe trail and I understood her mother’sconcern. I was taking pictures myself after theBBQ when I saw Sarah put on her helmet andjump up on Maximus to take selfies with herphone. I called Sky over to assist with ourhorses so we could take pictures too. SkyWalker was complaining to me that she neededmore help over the holiday weekend just asSarah snapped her pictures and the flash wentoff.

It was recommended that we take pictures atthe stables, but no one said absolutely nopictures with the horses at the BBQ. Sarah is a

child, the guide should have stayed by her sideto remind her to turn off her auto flash beforeheading over to help us. Sarah didn’t know theflash would spook the horse; kids these daystake selfies everywhere! There was no ruleabout selfies!

I saw the flash and then I saw Sarah’s horsebuck out of control, throwing her off. It wasawful, I couldn’t believe how far down the hillshe fell. Her parents were screaming her namebut we couldn’t hear her respond. Since wewere in a remote area, it took a while for therescue response team to arrive. As soon as wesaw her, we knew her injuries were bad. Shewas taken to the hospital. I told the family tocontact us if they needed anything since Iwitnessed the entire incident.

teStimoNy oF zee oWNaI am Zee Owna, the owner and operator ofLake of Fun resort. I take pride in in having thesafest, well-managed and well-maintained lakeresort in New Jersey. From the first day of theirvisit, the Vacays, an odd family, did not followthe resort rules and in fact made up their ownrules and schedule.

All guests are required to check in at theactivities desk to finalize their schedulesplanned online. We ask our guests to do this asactivities may need to be closed formaintenance or weather. The Vacay familyobviously did not take the time to read all ofthe information posted on our webpage or didnot bother to check in at the activity desk.

Our online activity schedule clearly states thatkayaking opens at 8 a.m. and not at 7, the timethe Vacays picked to be there. Our brochureand webpage state that our activity equipmentshould not be used without our proper

13


supervision. When there was no employee atthe dock, the Vacays should have checked withthe activity desk or resort manager prior totaking our kayaks out on the lake.

The following day the Vacays caused mayhemat the mini golf course. The attendant saw thethree children play recklessly. They wereactually trying to hit the attractions on thecourse with their balls. The Vacays ignored theattendant’s warnings. They were given clearinstructions not to hit the ball too hard and notto aim at the attractions at each hole.

The parents of the child that was struck byMichael Vacay’s stray ball reported that theysaw Michael aim for the windmill on hole 7,hitting the ball as hard as he could. No onewas surprised that the ball bounced off thewindmill hard enough to fly straight up andinjure the poor child on the zip line. The Vacaychildren were reckless and the parents shouldhave done a better job controlling theirchildren.

When I was informed that Sarah Vacay washurt on the night horseback ride, I wasconcerned but not surprised. The family are allrule-breakers. We specifically instruct all ridersto take pictures on the horses at the stablesduring daylight when flash is not needed.Camera flashes spook horses. It is just likewhen a human flashes a light in your eyes inthe dark, it would startle you. It is the samewith horses, and this should be common sense.

Horses have unique vision, allowing them tosee virtually 350 degrees. The flash of thecamera frightened the horse, which caused himto buck. If Sarah had followed the rules andhad taken the picture of herself with Maximusat the stables, she would never have fallen off

the horse. I was also told that Sarah did notfasten and secure her helmet while taking thepicture, causing it to fall off during the fall.Once again, the rules were being broken, allguests are required to securely fasten theirhelmets before mounting their horses.

We are not responsible for Sarah’s injuries.Had she and her family followed our rules,Sarah would not have been bucked and wouldhave enjoyed the rest of her vacation at oursafe, well-managed, five-star resort.

teStimoNy oF Sky WaLker My name is Sky Walker. I have been theactivity manager at Lake of Fun for the past 10years. Right away I knew the Vacays weregoing to be troublemakers. When I arrived atthe docks on July 4th, they were alreadykayaking without any supervision. When Iwaved them back to the shore, they hesitatedand then were annoyed when I told them theyhad to have their schedule approved by theactivities desk. There was no 7 a.m. time slot,they created that slot for themselves.

The next day at mini golf, the attendantscalled me over to help them with the Vacays.They were once again ignoring the rules andthe children were out of control. I saw themhitting balls at the windmill. I told them not toswing so hard as this is a mini golf course andsomeone could get hurt. I was about to askthem to leave the course when Michael’s ballhit the child on the zip line. In all the years theresort had been open, this has never happened.There have never been any injuries on the zipline. I believe Michael intended to hit a rider soI knew I had to keep a close eye on this family.

I make the decision to guide the Vacay familyon the night horse ride BBQ to prevent any


trouble they may cause. I listened as the horsehandler recommended to all the guests thatthey take pictures on the horses at the stablesduring daylight. It was made clear that flashphotography should be avoided at night so thehorses would not be startled.

The ride up the trail was easy, even with Mrs.Vacay’s constant questions about our kind andgentle horse Maximus. Nothing bad happenedon the trail. I am not sure why she thoughtMaximus was going to misbehave but she waswrong. I checked his behavior before we leftthe stables and he appeared to be a littlefidgety and excited to be going on the trail, butthat was normal for him.

After dinner, as I was helping the Ryder familymount their horses, I saw Sarah on Maximuswith her helmet unfastened. I could see thestraps hanging down her neck and I wasconcerned. I started to head over to help herwhen I saw her phone at the end of a selfiestick behind Maximus’ head. I started to run tostop her from taking the picture when in theblink of an eye, her camera flash went off.

The flash spooked the horse, causing him tobuck, which resulted in Sarah falling off thehorse. As she fell, her helmet fell off, leavingher head unprotected. Her parents knew betterand should have made sure her helmet wassecurely fastened before getting on the horse.They were two feet away, they had aresponsibility to make sure Sarah wasfollowing the rules and had on her safety gear.

I am truly sorry that Sarah was hurt, but it wasnot Maximus’ fault. He was scared and reactednaturally. The Vacays were riding at their ownrisk and would have had less risk if they hadjust followed the rules. I couldn’t watch Sarah

every minute since I was responsible for twofamilies and I was not a personal guide forSarah. The Vacays should have properlysupervised Sarah instead of conversing withthe other families.

iNStruCtioNSThe plaintiffs, the Vacay family, must prove bya preponderance of the evidence that thedefendant, Lake of Fun, was negligent and thatthe defendant’s negligence caused Sarah’sinjuries, and that the resort must pay for allmedical expenses related to her injuries andfor pain and suffering

SuB-iSSueS1. Did Sarah’s flash startle Maximus, causing

her fall and resulting injuries?2. Should Lake of Fun have provided more

guides on the horseback ride?3. Was Lake of Fun understaffed for all their

activities on this popular holiday week?4. Should the zip line have been built over

the mini golf course?5. Should the kayaks and the gates to the

dock have been better secured?6. Did Michael intentionally hit the child on

the zip line?7. Should Lake of Fun have exercised the

horses before taking them out for the nightride?

8. Should the horse hand or Sky Walker haveswitched Sarah’s horse prior to the ride?

9. Was Sarah’s helmet loose or not fastenedproperly, contributing to her injuries?

10. Did the Vacay family’s behavior contributeto Sarah’s injuries?

11. What were Sarah’s parent’s responsibilitiesbefore, after and during the incident?

15


concePTs

1. Negligence. 2. Comparative negligence.3. Breach of duty. 4. Preponderance of evidence5. Parental responsibility.6. Liability.7. Proximate cause. 8. Foreseeability.

laWsNegligence is the failure of an individual oragency charged with the duty of care toexercise the proper degree of care that areasonable person would exercise undersimilar circumstances.

Comparative negligence considers if theplaintiff has contributed to cause the damagesby his or her own negligence. If so, theplaintiff’s recovery will be reduced by thepercentage he or she contributed, so long ashis or her negligence is less than 50%.

Preponderance of the evidence: If thedefendant has to prove the negligence of aplaintiff or claimant; the burden of proof is ona plaintiff to disprove his or her ownnegligence. Even if the plaintiff was negligent,the wrongdoer may still be held liable, if he orshe had the last clear chance to prevent theinjury.

Proximate cause: The plaintiff must establishthat his injury is connected to the defendant’snegligent actions.

Foreseeability: The event which is the primarycause of the injury is established by proof thatthe person of ordinary intelligence andcircumstances should reasonably have foreseenthat his or her negligent act would imperilothers.

Liability is the state of being responsible forsomething, especially by law.


FacTs

On the 5th day of June, 2015, at 5 Mill Roe Drive, Roemon,NJ, eight-year-old Skyler Holmes had a backyard birthdayparty. She invited 22 of her classmates, four cousins and 12of her friends from cheer and the neighborhood along withtheir parents and siblings. The invitation letter stated thatthe celebration would be a pool party. In addition to the pooland diving board, the birthday girl’s backyard has atrampoline and a swing set. On the day of the party, theHolmes also rented a bouncy house along with a blow-upwater slide with a climbing wall. The invitation indicatedthat a lifeguard would be on duty.

All 38 invited children showed up, along with 10 parents,one nanny and four siblings. They were all welcomed by thehosts into the house where Mrs. and Mr. Holmes reviewedthe rules for the pool, trampoline and inflatables beforeallowing the children into their fenced-in backyard. Alifeguard, Luke Saver, was hired to guard the guests in thepool and on the water slide.

The party started at 12:30 p.m., and after hearing the houserules, the children went out to the backyard to jump on thetrampoline, swim in the pool, dive off the diving board, playon the swing set, and go on the blow-up water slide andbouncy house. The children were also able to do crafts andplay sports.

Mrs. Holmes was tending to the snacks, condiments andbeverages along with Mr. Holmes who was grilling hot dogsfor lunch. Some of the parents were socializing while otherswere helping with the refreshments. The lifeguard sat on a

school

Mill LakeMonroe TownshipGrade 3, HonorableMention

Teacher

Bethanne Augsbach

sTudenTs

Jaeden AielloErin RizzoLiam SeversonRadhika SharmaClaire SongMisan Uduaghan

The case oF The backyard Pool ParTyThe herTz FaMily v. The holMes FaMily


stool by the center of the pool. Skylar’s 15-year-old brother Tyler was assigned by hisparents to supervise the bouncy house whilehis twin sister Piper was asked to oversee thetrampoline.

On the day of the incident, Mrs. Hertz and hereight-year-old son Ben arrived at the partyright on time as Ben was excited to play in thepool. He was amazed by all the fun things, inaddition to the pool, that he could play on.After hearing the rules, he went first to thepool’s blow-up water slide, climbed the rockwall to the slide, and then slid down into thepool’s deep end. The lifeguard, Luke, blew hiswhistle and told Ben, “Feet First Please!”

Ben played in the pool and on the diving boarduntil he began to shiver and then went to thebouncy house to dry off and get warm. Heentered the bouncy house, which already hadthree five-year-olds and two eight-year-oldsinside along with Tyler Holmes. Tyler told Benhe would have to wait outside until one childleft the bouncy house.

Ben then sprinted to the swings. He dashed upthe climbing rope onto the monkey bars anddown onto a swing. He was quickly bored anddecided to skip over to the trampoline.

The trampoline had two eight-year-olds on itwhen Ben hopped on causing one of thechildren to jump off. Ben began to jump andflip on the trampoline. After jumping andjumping, he suddenly flew out of the netting,into the air, arms outstretched, and thenlanded in the pool. He landed in the shallowend, hands and head first hitting the bottom ofthe pool. Mrs. Holmes called 911.

Luke lifted Ben from the pool and stayed with

him until the paramedics arrived. Ben wasrushed to the emergency room and treated. Hesuffered a severe right wrist fracture, a leftwrist sprain and a brain concussion. He wasadmitted to the hospital for two days to treatand monitor his concussion. He left thehospital with a cast on his fractured wrist anda splint on the sprain. After six weeks, his wristbone had not been corrected by the cast,requiring surgery and a one-day hospital stay.His parents are suing the Holmes family for$395,000 to cover all medical costs, and forpain and suffering.

issue Is the Holmes Family liable for Ben Hertz’sinjuries due to their negligence; for failing toexercise reasonable care to protect and keepsafe inquisitive, energetic, young childrenusing their trampoline and pool?

WiTnessesFor the PLaiNtiFFSally HertzMolly Sitter

For the DeFeNSeHolly HolmesLuke Saver

WiTness sTaTeMenTsteStimoNy oF SaLLy hertzMy name is Sally Hertz and I am the motherof Ben Hertz. My son Ben was invited to SkylarHolmes’ 8th birthday party on June 5, 2015. Atthe birthday party, my son Ben was injuredwhen he fell into the Holmes’ pool from thedangerous, unsupervised trampoline.


Ben and I arrived at the party right on time.Ben, along with Skylar and an excited group of42 other children, were asked to sit and listen toMrs. and Mr. Holmes explain the brief houserules. I didn’t hear the inadequate rules becausesome of the children were too noisy. Theyweren’t listening! My son and a few others weretrying to listen but it was very difficult. Some ofthe children, especially the young ones, weresquirming and squealing impatiently becausethey could see the pool, trampoline and all thefun and fabulous inflatables through the bigpicture windows. Mrs. and Mr. Holmes shouldhave pulled down the shades or moved to adifferent room. They absolutely should havemade the youngsters calm down and should nothave let them in the backyard until they listenedto them. My poor son listened as best he couldconsidering the chaos.

As we entered the backyard, Ben walked to thepool’s blow-up water slide. He climbed therock wall to the slippery slide, and then sliddown into the pool’s deep end. The lifeguard,Luke, blew his whistle and told Ben, “Feet firstplease!” I was shocked! I never saw my son godown head first and furthermore, even if hedid, he didn’t know it was against the rules.

I was keeping a close eye on my son when Mrs.Holmes needed help carrying out the food thatshe was rushing to put out for the children.She should have had the snacks and drinks outbefore the party if you ask me. I did my best todo both, watch my son and help her with thefood. Mrs. Holmes assured me that I could helpbecause they had a lifeguard and all of theactivities were being supervised. Well, that wasjust not true!

Ben played nicely in the pool until his teethstarted chattering like a windup toy. He got out

of the pool and decided to go to the bouncyhouse to dry off and get warm. When heentered the bouncy house, there were alreadythree kindergarteners and two third-gradersinside along with Tyler, the Holmes’ 15-year-oldson. What was the “supervisor” Tyler doingplaying inside the bouncy house? I have renteda bouncy castle before and I know the rules. Heshould have been outside watching thechildren. Only four children of mixed agesshould be bouncing at the same time, and theyhad five. Tyler and the bigger kids should neverhave been allowed to jump with the smallerchildren. The big kids were roughhousing andcould have easily injured the younger kids oreven my Ben. Just why would any reasonableadult allow a 15-year-old child to “supervise”small children in a giant blow-up? Tyler wasn’tdoing his job, he was playing around with thejumpers. My Ben did the smart thing and leftthe unsafe bouncy house.

Ben asked me if he could go on the swing set,until the trampoline was not so crowded withkids. I said yes so he headed over there untilhe saw that the mob had cleared out.

The trampoline had two of Ben’s friends on itwhen Ben hopped on. Tyler’s twin, Piper, wassitting on the trampoline Facetiming on heriPhone 6S, not “supervising” the kids. One ofthe boys jumped off to let Ben on. Ben wasjumping when suddenly the other boy on thetrampoline purposely jumped too close to him,causing poor Ben to lose his balance and thenjump to regain his footing. Before I couldscream out to Ben, I saw him fly out of thenetting and then land in the shallow end of thepool.

The trampoline was very wet from all of thesplashing from the pool and the wet kids not

19


drying off before they jumped. And, as hard asit is to believe, the netting was not Velcroedshut properly. If it had been secured correctly,Ben would have landed back on the trampolineand not in the pool. Ben landed in the shallowend of the pool, hands and then head first. Hewas in crazy bad pain as he fractured onewrist, requiring surgery, and sprained theother. He also suffered a serious concussion.He is still in physical therapy!

There is no doubt that there were too manyactivities and equipment and not enoughlifeguards and qualified “supervisors” to keepall 43 children safe! The Holmes should of hadat least two lifeguards—one watching theblow-up water slide, and the second watchingthe actual pool and diving board. Finally, anyreasonable person would not use children tosupervise a trampoline and bouncy house; thatresponsibility should have been given toadults.

teStimoNy oF moLLy SitterMy name is Molly Sitter and I am the nannyfor Ben’s classmate Lily. On the day inquestion, I brought Lily to the party and Icouldn’t believe my eyes when I saw all theattractions and activities set up in thebackyard. During the party, I becameconcerned because of the poor supervision ofthe inflatables and trampoline. Most of thechildren did not follow the rules and no oneseemed to care. I stayed by Lily all day to besure she was safe.

Luke Saver, the lifeguard on duty, could notpossibly, in my opinion, oversee all of thechildren in the pool and on all of theequipment. While sitting on his chair at thecenter of the pool, he could not possibly seewhat was happening at the far end of either

side of the pool. And that is important becauseon one end of the pool there was the inflatableslide and the diving board, and at the otherend was the trampoline.

As hard as it is to believe, I saw Luke was onhis phone, and he appeared to be taking“selfies” while he was watching the kids. I sawthe posted pictures from the party on Snapchatand Instagram and I saw that he even took thetime to include emojis on his Snapchatpictures. If he was taking a break fromwatching the children in the pool, to takepictures, he should have called all the childrenout of the pool and off the water slide andtrampoline.

Lily and I were on the swing set when I sawBen jumping on the trampoline. I noticed himwhen his friend jumped too close to him,causing him to slip and then jump to get hisbalance. I looked over and saw Piper sitting onthe trampoline with her phone next to her; Iam not sure she even realized what washappening. At times, during the day, I also sawher jumping with the kids on the trampoline.

I instantly knew Ben was in trouble as Iwatched him fly out of the netting into thepool. The party was an accident waiting tohappen!

teStimoNy oF hoLLy hoLmeSMy name is Holly Holmes and I am the motherof Skylar Holmes. We had a birthday poolparty for our daughter Skylar at our house onJune 5, 2015. In addition to the pool,trampoline and swing set in our yard, werented a bouncy house and blow-up waterslide. My daughter was so excited for her 8th birthday party!!


The kids started arriving for the party at 12:30p.m. The children and adults were all asked tostay in the house and were not allow out backuntil Mr. Holmes and I explained the rules forthe pool and all of the equipment. Mr. Homesand I spilt the children into two groups of 22children. The rules were explained out loud tothe children and were also written down onposters that were posted inside the house andoutside in front of each activity.

I am a third-grade teacher and my husband is amiddle-school principal so we know how tohandle large groups of children. I understand,through my years of teaching, how to gainchildren’s attention and ensure theyunderstand my directions and rules. Myhusband and I did not allow the children tomisbehave and fool around during rule time.The children were focused on us, not on thewindows. We take children’s safety seriouslyand that is why we not only explained therules out loud, we also put them outside onsigns for all to see. In addition, we hired alifeguard and paid our 15-year-old twins tosupervise the bouncy house and trampoline.

Once the rules were explained, most of thechildren walked outside, but a few ran out likeanimals. Ben was the craziest of all! He ranoutside like a cheetah running full speed afterits prey. As I hurried outside to remind all thechildren including Ben to walk, not run, I sawBen scurrying up the climbing wall and thencome down the slide head first, which wasabsolutely against the rules. I immediatelyheard our lifeguard, Luke Saver, blow hiswhistle and then discipline Ben, warning himthat if he did it again he would be bannedfrom the slide for the day. He wasn’t evenoutside three minutes and he was alreadygetting into trouble.

I politely walked over and asked Mrs. Hertz ifshe would keep an eye on her son as heseemed to be overly excited. She told me shestayed at the party so that she could keep aneye on him. Mrs. Hertz then asked if I neededany help. I wasn’t able to finish getting all ofthe snacks and beverages out before the guestsarrived due to the early arrival of somefamilies. Once the children were all at myhouse, explaining the rules to everyone was farmore important than getting the food outside. Igladly accepted the help of several parents, butavoided giving Mrs. Hertz a job because Iwanted her to focus on Ben. The lifeguard andall of the supervisors were focused and doingtheir jobs so I was able to get the food anddrinks out without any trouble.

The lifeguard, Luke Saver, spoke to Ben severaltimes as he was playing too roughly in thepool. When he started to shiver, Lukesuggested he take a break from the pool andwarm up. I then saw him push other childrenout of his way to get to the bouncy house,which was on the other side of the backyard.He was galloping around the yard like aracehorse trying to get to the bouncy house.Ben hopped into the bouncy house that alreadyhad five children of mixed ages in it. Tylerasked Ben to wait outside for his turn as ourrule was five children bouncing at a time. Benheatedly jumped up and down three times,knocking over the younger children and thenflew out before Tyler could stop him.

Tyler, my son, was sitting in the bouncy housebecause he could see and control the kidsbetter from inside. The rental companysuggested he do this. My son wasn’t jumpingwith the children on the bouncy house, he waswatching the kids. The rental company rulesstated eight children could be inside the

21


bouncy house at once so we were way underthe maximum limit. I was never told thatchildren should only be allowed on with kidsof their own age. Mrs. Hertz says she hasrented a bouncy castle before and knows therules. I am certain it was not the same size asmine so it probably had different rules. Not allbouncy attractions are the same. We followedthe rules that came with our bouncy house.

Tyler and Piper, our 15-year-old twins, are bothresponsible young people. They are both campcounselors’ helpers at our town’s recreationcenter. They have watched over small childrenat the camp, which includes a pool, jungle gymand water slides. They did an awesome jobwatching the bouncy house and trampoline.

The trampoline had two of Ben’s friends on itwhen Ben hopped on. Tyler’s twin Piper wassitting on the trampoline and kindly asked oneof the boys to jump off to make room for Ben. Isaw Piper make sure the safety net wasfastened after each child got on or off thetrampoline. Furthermore, the trampoline wasnot sopping wet from all of the splashing fromthe pool. The children dried off before theyjumped.

Piper had her phone so that she was able tocall me or Mr. Holmes if she had a problemwith any of the children. She told me that shehad to repeatedly ask Ben to stop jumping outof control. She called me to ask that I take Benoff the trampoline because he was not listeningto her directions. At that exact moment, Benjumped up high into the air to gain momentumand then dove right into the pool. There wasnothing Piper could do as Ben flew with hishands straight out in front of him from thetrampoline head first into the pool. Hescreamed “I’m Superman” as he dove straight

through the Velcroed, secured flap into thepool.

I called 911 as Luke Saver rescued Ben. Helifted Ben onto our backboard and tried tokeep him calm until the paramedics arrived.Mrs. Hertz finally figured out what washappening and ran screaming to Ben. Ben wascrying out in pain and I was sincerely sorry hehurt himself. But he did this to himself. Heknew better than to dive into a shallow end ofa pool off a trampoline.

There were not too many activities in our largefenced-in backyard. We had an experiencedlifeguard, two supervisors, my husband and I,and the other parents at the party overseeingthe yard activities. I have 27 children in myclass that I oversee all by myself every day andmy husband runs a school full of children!Keeping 44 children safe was notunreasonable! Ben did not follow the rules andmade poor choices. His mother did not haveher eyes on him as she allowed him to makepoor choices all day. She spent far too muchtime socializing with the other adults andeating. She should have focused on her childand provided some kind of discipline for hisoutrageous behavior.

TesTiMony oF luke saverMy name is Luke Saver and I am a certifiedlifeguard. I was hired by Mrs. Holmes to guardher pool and water slide at Skylar’s birthdayparty. I work at the town swim club so I couldeasily handle the job.

During the party, I sat on a high stool at thecenter of the pool from where I could see whatwas happening in the pool and at either side ofpool where the inflatable water slide and


trampoline were. Almost all of the childrenwere following the rules so my job was prettyeasy. All that is except Ben!

From the moment Ben entered the yard, I sawhim breaking rules. I am sure he is always introuble at school. I had to ask him not to slidehead down on the slide two minutes into theparty. I wasn’t surprised he dove head first intothe pool because going head first seems to behis thing.

As for being on my phone and posting pictures,I would like to clear up the record. I was nottaking “selfies” while I was on duty watchingthe kids. I took my pictures after all the guestsleft and then posted the pictures on Snapchatfrom home. I never took a break fromwatching the children in the pool to takepictures.

I saw Ben jumping out of control on thetrampoline. I blew my whistle at him to try andsignal him to stop but he ignored me. I didn’tsee him lose his balance, but I saw him fly outof the netting into the pool. He was clearlytrying to be a superhero which was ridiculousif you ask me. He is lucky he didn’t break hisneck. The Holmes and I were not negligent.The Holmes should not be held liable for thepoor choices made by a mischievous boywhose mother does not provide him withproper discipline or attention.

insTrucTionsThe plaintiff, the Hertz family, must prove by apreponderance of the evidence that thedefendant, the Holmes family, was negligentand that the defendant’s negligence causedBen’s injuries.

sub-issues

1. Did the Holmes have a duty to ensure thesafety of all the children in light of all thefun and exciting attractions they had forthe party?

2. Were the pool and diving board,inflatables, trampoline, swing set andbouncy house too many attractions toproperly supervise?

3. Were the Holmes’ rules adequate and didthey exercise reasonable care to eliminateany danger to protect the children andkeep them safe?

4. Did the children pay attention to Mr. andMrs. Holmes’ rule presentation so that theyfully understood them?

5. Were the children made to follow therules?

6. Was Luke Saver taking pictures that mayhave left the pool area unsupervised?

7. Should there have been more than onelifeguard?

8. Should Piper have been supervising thetrampoline without an adult?

9. Was Piper preoccupied with her cellphone?

10. Should Tyler have been supervising thebouncy house, without an adult, whilesitting inside?

11. Were too many children on the attractions?12. What role did Ben’s choices make in his

resulting injuries?13. What were Mrs. Hertz’s parental

obligations in this situation?

concePTs1. Negligence.2. Comparative negligence.3. Burden of proof—preponderance of

evidence.4. Attractive nuisance.5. Parental responsibility.

23


6. Proximate cause.7. Foreseeability.

laWsNegligence—is the failure of an individual oragency charged with the duty of care toexercise the proper degree of care that areasonable person would exercise undersimilar circumstances. It may be the doing ofan act which the ordinary prudent personwould not have done, or the failure to do thatwhich the ordinary prudent person would havedone, under the circumstances. By “a prudentperson” it is not meant the most cautiousperson, but one of reasonable vigilance andcaution. There can be no liability in negligenceunless the plaintiff establishes both that theywere owed a duty of care, and that there hasbeen a breach of that duty.

Comparative Negligence—is considered if theplaintiff has contributed to cause the damagesby his or her own negligence. In such a case,plaintiff’s recovery will be reduced by thepercentage he or she contributed, so long ashis or her negligence is less than 50%.

Burden of Proof—the defendant has to provethe negligence of a plaintiff or claimant; theburden of proof is on a plaintiff to disprove hisor her own negligence. Even if the plaintiff wasnegligent, the wrongdoer may still be heldliable, if he or she had the last clear chance toprevent the injury.

Proximate Cause—plaintiff must establish bya preponderance of the evidence thatdefendant’s negligence was a proximate causeof the accident. In other words, plaintiff mustestablish that his injury is connected to thedefendant’s negligent actions.

Attractive Nuisance—a possessor of propertyis subject to liability for physical harm tochildren on their property caused by anartificial condition upon the property if: (a) theplace where the condition exists is one uponwhich the possessor knows or has reason toknow that children are likely to trespass; (b)the condition is one of which the possessorknows or has reason to know and which he orshe realizes or should realize will involve anunreasonable risk of serious bodily harm tosuch children; (c) the children because of theiryouth do not discover the condition or realizethe risk involved in coming within the areamade dangerous by it; (d) the utility to thepossessor of maintaining the condition and theburden of eliminating the danger are slight ascompared with the risk to children involved;and (e) the possessor fails to exercisereasonable care to eliminate the danger orotherwise to protect the children.

Foreseeability—in the law of negligence, theforeseeability aspect of proximate cause—theevent which is the primary cause of the injuryis established by proof that the person ofordinary intelligence and circumstances,should reasonably have foreseen that his or hernegligent act would imperil others.

Parental Obligation—Parents have anobligation to properly supervise the activitiesof their minor children.


FacTs

Every year in November, the rival high school football teamsfrom two neighboring towns play a very important game.The winning team receives a trophy and a scholarship isawarded to one football player and one cheerleader. In yearspast, a significant scholarship has been awarded to thecaptain of the football team and the head cheerleader basedon performance. This rival game is the highlight and focalpoint of every senior in the two rival high schools. Manyfans come to support their town’s high school team, andeven more importantly, college scouts come to scout outprospective athletes for their colleges. The state collegescouts come to award one football player and onecheerleader a full scholarship to their institution.

The football players and cheerleaders were very excited anddetermined to do their best to win the trophy. Both sets ofathletes were ready to do what was needed to help theirteams achieve this goal. The football players were ready togo. They had their coaches, all players, and their minds setto win. The cheerleaders had a bit of a pre-game challenge.Their head coach had a sudden bout of food poisoning andcould not make the game, and they were missing a fewcheerleaders. Their assistant coach Miss Ing was there andprepped the girls. She pumped up the girls, and theyexcitedly entered the field with the confidence to succeed!

However, that is not what happened. There was an incidenton the field involving a group of cheerleaders and footballplayers. Connie Ussion, the head cheerleader, had justperformed her cheer stunt, with a missing front spotter. Tomake matters worse, as she was released for the dismount

school

Lincoln NutleyGrade 4, First Place

Teacher

Kim Algieri

sTudenTs

Isabella BobadillaMadison EguesClaudia FolletTaylor FoxLindsey GuzmanIsabella KellyGianna MaurielloAva OliverDamian RodriquezHailey RomanoLiliana RubinoVictoria RudishAllison SlaneIsabella Torres

The case oF The soaring cheerleaderconnie ussion v. Miss ing


cradle, the football player came out of boundsand knocked over Connie’s base. So, ConnieUssion came crashing down onto a pile offootball players and cheerleaders. She had hither head on #24 Tim Burr’s helmet. She wasnot properly examined, and she ended uphaving a severe concussion.

issueThe head cheerleader was not visibly injured,but with the possibility of a concussion and theimportance of early detection, was theassistant coach negligent in allowing her tocontinue to cheer?

WiTnessesFor the PLaiNtiFFConnie UssionConnor Ussion

For the DeFeNDaNtCoach Miss IngTim Burr

WiTness sTaTeMenTs teStimoNy oF CoNNie uSSioNI am a dedicated, academically strong, andvery athletic 17-year-old. I’ve been acheerleader since I was in third grade. I am ahard worker and take cheering very seriously.During my younger years, I had gone to manysummer camps that focus on cheerleadingroutine, gymnastics, and, most importantly,safety. I have always shared my knowledge ofsafety procedures with my squad mates. As Ientered the high school level, my leadershipskills helped me earn the respect of my squadand the head coach. I eventually became thehead cheerleader, and whenever we did a

stunt, we always had a back spot, two bases,and a front spot.

In November, our big rival game was beingplayed. I was so excited because the collegescouts were watching and they were going togive a scholarship to a cheerleader and afootball player to the college of their choice. Iknew the scholarship usually went to the headcheerleader, and that was me. I knew my hardwork and drive would help my dreams cometrue. I ran with excitement to our cheer squad,and I noticed that we were missing some girls,which included my front spot!

I told my assistant cheerleading coach Miss Ingthe problem, and she just said to do the stuntwithout a front spot. So, I told my stunt group,and we practiced it a few times without thefront spot. We did our stunt, a flip in mid airwell and with success. The stunt went wellduring the game also. Feeling successful, wedid the dismount cradle and, as I was in theair, a football player hit our stunt group! Then,as I landed, I hit my head on the footballplayer’s helmet. The cheerleading coach askedif I was okay. I said yes because I felt fine, justa little bit dizzy, but I just did a flip so it wasnormal for me to feel that way after a flip.

I watched assistant coach Ing wave off theathletic trainer, who was running across thefield. Everyone gathered themselves up andrecouped. The game was a success! We won,and I won the scholarship! All I had to do wastake the entrance exam, and I was set with mydream. Since I was a straight A student, I knewI was on my way to future success.

That night, I went to bed feeling drained fromthe excitement. The next morning, my headhurt really badly. I told my dad and he rushed


me to the emergency room. I found out I had aconcussion. Dr. Brian Swellington said that mybrain was swelling. After a while, the swellingwent down a little but not completely. Now, mydad is suing the assistant cheerleading coachfor medical expenses and college expenses,since I lost the scholarship due to myincompetence on the entrance exam.

teStimoNy oF CoNNor uSSioNI am the father of Connie Ussion. I am here toshare how my daughter had her dreams endedby the neglect of the assistant coach, Miss Ing.

My daughter received a mild traumatic braininjury from a fall of an unsafe stunt at afootball game. I would like to sue for thehospital bills due to the suffering of my poordaughter, and college expenses. Her reputationas an honor student was destroyed that day,and was validated when she did not pass thecollege entrance exam. Therefore, she lost thescholarship.

It all happened in November at the rival footballgame. I was in the stands cheering for Connieand her team. My excitement for the game wasgrowing. I noticed the head coach was notgiving the cheerleaders their pre-game talk; itwas the assistant coach Miss Ing. I was surprisedbut not too concerned because the head and theassistant coach work together all the time. Plus,my daughter has been going to cheer camps andcheering since she was in third grade.

This game was a very special game because thecollege scouts were there looking forprospective well-rounded students. Thewinning team would receive a trophy, and onefootball player and one cheerleader willreceive a scholarship to the State College. Thisinstitution is the college Connie wants to

attend. I would love to pay for her to go there,but there is one problem. Connie’s mom passedaway when she was four, and since her passingI have been a single parent. I cannot pay forher to go to college, since my job doesn’t pay awhole lot of money. It has been a realchallenge keeping control of my emotions andstaying happy for Connie.

Going to watch her cheer makes me forgetabout my sadness. I especially love listening tothe pre-game pep talks. I heard the assistantcoach tell the cheerleaders, “We are a few girlsshort, and one happens to be a front spot, butyou guys are strong. You can do it anyway.Let’s show these college scouts who is thebest!! Connie, lead the girls with our openingstretches!” I felt so proud of my daughter. I wasbeaming.

I then heard the football coach giving his peptalk to his players. “Alright, this team is fierce,but so are we. Okay, here is our plan: Tim Burr,you are going to go right and I want you to hitthem like you mean it! Okay? Listen, boys, doanything it takes to win.’’ I was so excited forthe rival game.

Then the ref blew his whistle, the boys hustledonto the field, the cheerleaders took theirpositions, and the game began. It was a veryclose game; both teams really wanted thetrophy and a shot at their future dreams.

Then I heard, “Let’s impress them with ourstunts!’’ ordered the assistant coach. Stunts aremy favorite time of the cheerleading routine. Iwatched carefully as the cheerleaders tooktheir spots. I noticed my daughter Connie wasthe flyer of the stunt group that was missing afront spot. So, as per the assistant coach’sorders, Connie went up without a front spot.

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Deep down, I was a tiny bit worried, but Itrusted her coach even though she was theassistant. Miss Ing has been coaching mydaughter since freshman year. The crowderupted into a load roar; I then returned myfocus back to the game.

Then #24 Tim Burr tackled one of the otherplayers so hard he pushed him out of boundsand into the stunt group without the frontspot. The one my daughter was in! Her baseslost their balance and fell. Connie was in theair doing a flip into the dismount cradle, whichwasn’t there. Much to everyone’s surprise, shefell onto the pile of cheerleaders and footballplayers. She hit her head on Tim’s helmet.

I rushed to the fence trying to get herattention, asking, “Are you okay?” She did notrespond. I saw the assistant coach rush over toher. They spoke for a bit, and she helped mydaughter up. I noticed the athletic trainerheading over. However, when the assistantcoach stood up, I watched her wave off theathletic trainer. I felt relieved everything wasOk. I trusted my daughter’s coaches. Mydaughter continued to cheer. The football teamcontinued to play hard, and their team wonthe rival football game. Thankfully, Conniewon the scholarship. We celebrated by goingout to dinner.

Once the excitement died down from the day,my daughter felt very tired and went to bed.She woke up saying her head was hurting badly.I had to rush her to the hospital. When they didthe brain scan, they found her brain hadswelled. They could not tell us when theswelling would go down. It was a waiting game.

Dr. Brian Swellington delivered the fretful newsa week later. The swelling is reducing very, very

slowly and Connie may struggle with certaintasks, especially academics. You could imagineour disappointment when Connie did not passher college entrance exam and lost herscholarship. I told Connie not to worry,hopefully the swelling will continue to go downand you will pass the entrance exam then. I willhelp pay for college the best I can. But then thehospital bill came. I cannot afford to pay both,and since the hospital bill has to be paid, mydaughter’s dream cannot come true.

teStimoNy oF miSS iNgMy name is Melissa Ing; my cheerleaders callme Miss Ing. I have been the assistantcheerleading coach for many years. I amtrained in stunts, tumbling and first aid.

My squad impresses me this year because theyare all very talented, flexible and rarely makemistakes. We were all so excited and eager towin the Rival Trophy for our school. We hadbeen talking about it for weeks. College scoutswere coming to the game and one of ourcheerleaders was going to be considered for abig scholarship. Unfortunately, the night beforethe game at the pep rally, the head coach, AnnieKnottier, developed food poisoning. Thatmorning, I was told I would have to coach alone.

Coach Knottier had every confidence in mebecause I received the same training that shedid. I also never miss a game, and I have stoodby her side every game for three years now. Iknow how she coaches, and what she expectsfrom the squad. Just as the squad knows whatis expected of them. I shared with the girlsCoach Knottier’s unfortunate illness, andquickly jumped into the pre-game speech. Iwanted to keep the girls’ eyes on the prize.

We were missing a few cheerleaders also. This


concerned some girls more than the absentcoach. I reassured them that they are a greatgroup and could achieve anything they set theirmind to. With that, we ran over to our places.

The girls were cheering loudly and performingwell. The game was close. We needed to ampup our support, so we decided to do the stunts.I watched with awe as they performedbeautifully, when all of a sudden mycheerleaders were on the ground. The playfrom the field hit right into the base of myhead cheerleader’s stunt group. She had beenairborne when the players ran into the base, soshe came down hard. I couldn’t see what shehit, but when I got to the pile of players andcheerleaders, she was laying on top of #24Tim Burr.

I helped them up and asked if they were Ok.They all said yes, except for Connie. She saidshe felt dizzy. I wanted to get her checked,abiding by the signed contract we havebecause of the concussion testing law, but sheadamantly said she was Ok. I trusted her sinceshe also signed the contract as well, whichstates the athlete will honestly reportconcussion symptoms to their coach.

I waved off the athletic trainer, and Conniecontinued to cheer with the same energy shehad before.

teStimoNy oF tim BurrI am Tim Burr. I am a senior football playerand the captain of the team. I was one of theplayers that knocked into the cheerleader’sbase. The day was a very exciting day for allsenior athletes. We all wanted to win the RivalTrophy to honor our school, and hopefully winthe scholarship to help us.

I have known of Connie Ussion for four years,but only truly got to know her this year. Sincewe were both captains, we have to workclosely together. I know how dedicated she isto cheering. She is a very strong person, andusually achieves what she sets her mind to.

She and I discussed how important this gameis to us at the pep rally the night before. Thepep rally was very exciting and the coacheswere getting us all amped up.

On the day of the rival game, everyonecontinued to be excited. We all wanted thiswin for so many reasons. The crowd was loud,the cheerleaders were cheering, and we wereplaying hard. The game was close. Our coachcalled a time-out, and told us to fight hard anddo what it takes to win.

So I was all set in position when the Rival QBsaid, “HIKE.” I ran and he threw the ball to theplayer I was blocking. I had to catch him. Hewas out of reach, so I dove at him. I was sofocused. I didn’t realize how close to ourtown’s cheerleaders I was when I dove. BOOM!I tackled him right into the cheerleaders. Theforce of our tackle knocked over their base andthe head cheerleader who was in the air camecrashing down on my helmet. Her head hit myhelmet so hard.

The assistant coach ran over and helped us allup. She repeatedly asked us all if we were Ok.Connie got up and she said she felt dizzy. Thecoach wanted to have her checked, but Connietold her coach she was always dizzy after abasket toss and flip dismount. The coach thenturned around and waved off the athletictrainer, which was good because then mycoach called her over. When I got back to mybench, my coach had me checked. He was so

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glad that there was no concussion for me. Iwas able to continue to play, we won, and Iwon the scholarship. I am going to StateCollege in the fall!

insTrucTionsThe plaintiff, Connie Ussion, must prove by apreponderance of the evidence that Coach MissIng acted in a negligent manner by notremoving Connie Ussion from the routine aftershe suffered the fall.

sub-issues1. Should the assistant coach have removed

the stunt from the cheer routine whenthere were missing cheerleaders?

2. Does the head cheerleader, Connie Ussion,have any responsibility to requestremoving the stunt if she did not feel safe?

3. What liability is attributed to the assistantcoach in the failure to seek assistance inexamining Connie?

4. Should Connie Ussion have been removedfrom the routine? Why was Connie Ussionnot pulled from the rest of the stunts?

5. Is there any liability on the part of theathletic trainer for not insisting he be ableto check on Connie?

6. Should students under the age of 18 beallowed to make medical decisions aboutthemselves?

7. Why wasn’t the parent consulted onwhether or not Connie should stay in theroutine?

8. Did Tim Burr’s coach have any liability intelling his players to do anything theyneeded to win the game?

concePTs

1. Negligence.2. Contributory negligence.3. Personal damage.4. Comparative negligence.5. Concussion State Law.

laWNegligence: Negligence is the failure of anindividual or agency charged with the duty ofcare to exercise the proper degree of care thata reasonable person would exercise undersimilar circumstances. It may be the doing ofan act, which the ordinary prudent personwould not have done, or the failure to do thatwhich the ordinary prudent person would havedone, under the circumstances. By “a prudentperson” it is not meant the most cautiousperson, but one of reasonable vigilance andcaution. There can be no liability in negligenceunless the plaintiff establishes both that theywere owed a duty of care, and that there hasbeen a breach of that duty.

Proximate Cause: Plaintiff must establish by apreponderance of the evidence thatdefendant’s negligence was a proximate causeof the accident. In other words, plaintiff mustestablish that his injury is connected to thedefendant’s negligent actions.

Causation: “But For” test: But for the actionsof the defendant, the harm would not haveoccurred. If defendant is found to be a sub -stantial factor, defendant is comparativelyliable.

Personal and Property Damages: Damage isa loss or harm resulting from injury to a personor property. Damage refers to compensation,such as a money judgment, provided to aperson who has suffered a loss or harm due to


an unlawful act or negligence. The person atfault must compensate the injured party.

Comparative Negligence: If the plaintiff isalso negligent but his negligence is not greaterthan that of the defendant, the plaintiff mayrecover damages but the amount will bereduced by the percentage of the plaintiff’snegligence.

Contributory Negligence: If the plaintiff’snegligence contributed to his or her injury andhe or she failed to act responsibly for his/herage, then his/her carelessness may reduce theresponsibility of other parties.

Concussion Testing Law: The key provisionsof the New Jersey law:

Education and mandatory training: TheState Department of Education must workto develop and implement by the 2011–2012 school year an interscholastic athletichead injury training program which mustbe completed by school physicians, all thosewho coach a public or private schoolinterscholastic sport, and athletic trainersinvolved in a public or private inter -scholastic school program, and update theprogram as necessary to ensure that itreflects the most current informationavailable on the nature, risk and treatmentof sports-related concussion and other headinjuries.The program must include, atminimum, education on recognition ofsymptoms of head and neck injuries,concussions and injuries related to second-impact syndrome and the appropriateamount of time to delay the return to sportscompetition or practice after concussion.Informed consent to play: requires theDepartment of Education to develop an

educational fact sheet about sports-relatedconcussion and other head injuries todistribute to parents and/or guardians ofstudent-athletes and obtain a signedacknowledgment of the receipt of such factsheet by the student-athlete and his parentor guardian on a yearly basis;Immediate removal if concussionsuspected: Youth athletes suspected ofhaving sustained a concussion in a practiceor game must be immediately removedfrom competition; andReturn to play after medical clearance:Youth athletes who have been taken out ofa game or practice because of a suspectedconcussion are not allowed to return toplay until after the athlete has beenevaluated by a physician or other licensedhealth care provider trained in theevaluation and management ofconcussions; and the athlete has receivedwritten clearance to return to practice andcompetition from a physician trained inthe evaluation and management ofconcussions.Immunity from liability: School districtsand private schools will be immune fromliability for injury or death of a person dueto the action or inaction of personsemployed by or under contract with ayouth sports team organization thatoperates on school grounds if the youthsports team organization provides thedistrict or private school with (a) proof ofinsurance in an amount not less than$50,000 per person, per occurrence; and(b) a statement of compliance with theschool district or private school’s policiesfor management of concussions and otherhead injuries.

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FacTs

Penny Cole Lector, a 22-year-old college student accusesDiddy, a 21-year-old college student, of stealing a rare 1943copper penny from right under her nose. Both studentsworked at the Amazon Café as a part-time job to earn extramoney for life. On New Year’s Eve, December 31, 2015, thecafé was packed. That night Penny received a tip whichincluded the rare copper penny. Since Penny’s dad is a coincollector, she always made it a habit to look at the dates onall of her coins. When she saw the 1943 date, Penny wasvery excited. At that moment, the alert sound on the POS(Point of Sales) device went off because it was time for herto serve food to one of her tables. Since the uniforms did nothave any pockets, Penny told Diddy, who was a new friendand host, to hold the coin for her. At the end of the night,the penny was nowhere to be found. A series of events thatPenny claims to have occurred lead her to accuse Diddy oftheft.

issueIs Diddy Steal guilty of stealing the 1943 copper penny?

WiTnessesFor the ProSeCutioNPenny Cole LectorOwen Er

For the DeFeNDaNt Diddy StealEvi Dence

school

School Number ThreeFort LeeGrade 4, Second Place

Teacher

Elsa Osso

sTudenTs

Myles BeckermanRenee ChenRyan ChenYejun ChoiDaniel FuDaniel LeeAlex SeoAndy Zhao

Penny’s Penny?sTaTe v. diddy sTeal


WiTness sTaTeMenTs

teStimoNy oF PeNNy CoLe LeCtorMy name is Penny Cole Lector. I am a 22-year-old student in dental school. I came to choosethis profession because I think that dentalhealth is important and fascinating. I’ve alsobeen working at the Amazon Café on Fridayand Saturday nights to earn extra money topay for the very expensive medical books formy classes. I usually do not work on weekdaysbecause I am too busy studying, but since I wason a break from school, the owner asked me towork on Thursday, December 31, because heknew it would be a busy night.

The owner was right. The café was packed onNew Year’s Eve. When I was cleaning one ofmy tables for the next family, I saw a $20 billwith a penny on it that the people had left as atip. I was happy because the owner had toldme that some customers leave a penny on topof the tip when they receive excellent service.Since my dad is a coin collector, I make it ahabit to always look at the dates on coins. Iwas shocked when I saw that the date was1943. I knew right away that it was valuable.

While I was staring at the coin, the handheldPOS system alerted me that the order for table15 was ready. I knew I had to hop to it. Idropped the $20 bill in my tip jar, but I didn’twant to let go of the penny. Since therestaurant uses handheld computers to takeorders, our uniforms don’t have any pockets.This was a big problem. Diddy was hostingthat night, and I decided it would be better tolet him hold on to the penny. When I hadspoken to Diddy about my dad’s coincollection, he thought it was very interestingthat I knew so much. I quickly told him thatthe penny was valuable, and he agreed to keepit safe. I intended to go back and get the penny

right after I served the table, but I was so busythat I didn’t get a break until at least an hourlater.

Every time I looked for Diddy, I never saw him.He seemed to disappear into thin air! I thinkhe was avoiding me on purpose. When I finallydid get a chance to talk to him, he said that hehad to put the penny in my tip jar because hegot too busy and didn’t want to lose it. When Iemptied my tip jar, a penny was there, but itwas the wrong one. That penny had 1948 asthe date!

I was devastated to learn from my dad that arare 1943 coin can be worth as much as$60,000. He told me that he has been trying tofind one of those pennies for most of his life.My dad was disappointed that I didn’t have thepenny, but he didn’t blame me. But when Irealized that Diddy must have stolen thepenny, I felt that I would burst into a rage.

Diddy had been working at the café for onlythree months, but we had become friends and Itrusted him. Later, however, I learned that hehad stolen money from a register in a diner.The owner, Owen Er, was not happy when hefound out about this incident. He was thinkingabout firing him, but since Diddy hadestablished some reliability, he didn’t want tofire him during the holidays because he neededthe extra help. My dad and I are hoping thatDiddy will realize that he needs to tell thetruth and give back the penny.

teStimoNy oF oWeN erI am Owen Er, the owner of Amazon Café. Iinherited the restaurant when my fatherpassed away. I am proud to say that we havebeen in business for a total of 37 years andthat it has been very successful. In addition to

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our delicious food, I think that the specialatmosphere helps to attract customers. Thedining room is set up to look like a rainforest.It has trees and fake animals, and its mostfamous feature is our talking military AfricanGrey parrot. But running such a popularrestaurant isn’t always easy.

We are always very busy on all of the holidays.This New Year’s Eve, I watched the waiters andwaitresses buzzing back and forth from thekitchen to the dining room non-stop as theycarried hundreds of delicious meals to thetables. Diddy wasn’t supposed to work thatnight, but I needed him to be an extra host.During all of the commotion, from the cornerof my eye, I noticed Penny hand Diddy a smallround object, which I now believe to have beenthe missing 1943 copper penny.

I did think that Diddy was a good worker atfirst, which is why I hired him. Also, he hadprevious experience working in anotherrestaurant, so he quickly learned how to workat the café. I didn’t have time to call theprevious restaurant to see what his otheremployer would say about Diddy, but I wasn’tworried because he was doing a good job.When I called a couple of days before NewYear’s Eve, I was very surprised to hear that hewas caught on the security camera stealing a$50 bill. That’s when I decided to fire him, butI couldn’t do it until after December 31stbecause I needed him to work that night.

I hope that Diddy takes responsibility for thetheft of the penny and that he won’t get intoany more trouble in the future.

teStimoNy oF DiDDy SteaL My name is Diddy Steal. I am a 21-year-oldstudent. I attend MIA (Manhattan Institute of

Animals). I am studying to be a zoologistbecause of my great love for animals. Myparents convinced me to get a part-time job ina restaurant so I could make a little extramoney. Since I am such a fan of animals, Iagreed to work as a host at the Amazon Café.

Before that I worked at a diner, but I quit whenthe boss falsely accused me of stealing a $50bill from the cash register. He said that I wascaught by the video camera, so I asked to seethe video. The video shows me at the cashregister with a $50 bill in my hand, but if youwatch carefully you can see me bending down.That’s because I picked the $50 bill up fromthe floor. A man dropped it as he was paying.The security camera doesn’t show that Ifollowed the man to the front door to give themoney back to him. The boss wouldn’t listen tome. He says he fired me, but that’s not true. Iwas so upset that I quit. My mom was happythat I quit.

I really liked working at the Amazon Café. Mr.Owen Er was impressed that I knew how to bea good waiter and a host and that I even knewall about African Greys. December 31st was thebusiest night ever! While I was working, Pennyran over to me, handed me a penny and toldme to please hold it because she thought that itwas one of the valuable ones that she had toldme about. When customers came in, I neededboth hands to carry the menus. Since Pennydidn’t come back right away, I didn’t want tolose the penny, so I put it in Penny’s tip jar. Thetip jar was by the African Grey parrot. As Idropped the penny in the jar, I said, “Penny intip jar! Penny in tip jar!” The parrot heard me,and he repeated it!

The next day, I was called down to the policestation. I was surprised to see Penny there, and


I was shocked when she accused me of stealingthe penny. She said that when she looked inher tip jar at the end of the night she onlyfound a 1948 penny. I’m sure that she made amistake and read the wrong date. Penny is myfriend and I like her. I would never steal, noteven a penny, from her!

teStimoNy oF eVi DeNCeMy name is Evi Dence. I am Owen Er’s friend,and I eat at the Amazon Café at least once aweek. I know that Owen means well, but hedid not see everything that happened thatnight.

I love military African Grey parrots. I thinkthey are intelligent and interesting creatures. Itrained Fred to talk when he was only onemonth old. I trained him to have conversationswith people and to give information. Themilitary used him for a while and then I gothim back. When Owen asked me if he couldbuy Fred for the restaurant, I agreed because Iknew he would take good care of him and thatI would still be able to see him. I was very busywith my job. I didn’t want Fred to be alone.

I was at the Amazon Café on New Year’s Eve. Infact, I was sitting at the table right by Fred likeI always do when I heard Fred’s voice. Hespoke very clearly when he said, “Penny in tipjar! Penny in tip jar!” He was repeating what heheard Diddy say when he put the tip in the jar.

I believe that Diddy is being falsely accused forthe theft of the valuable penny. If you thinkabout it, there is plenty of reasonable doubt.Maybe the penny fell on the floor when Pennywas counting her coins. Maybe anotheremployee took it. Maybe Penny made amistake and read the wrong date. Mostly, Ibelieve that Diddy is innocent because I

trained my parrot and I trust him to tell thetruth!

insTrucTionsThe prosecution has the burden of proof. Thejury must analyze the evidence and decidewhether the defendant, Diddy Steal, is guiltybeyond a reasonable doubt.

sub-issues 1. Which witness is most credible?2. Could Penny have read the wrong date?3. How strong is the customer’s testimony?4. What evidence is direct eyewitness

evidence and what evidence iscircumstantial?

5. Was there enough evidence to establishDiddy’s guilt beyond a reasonable doubt?

concePTs1. Reasonable doubt.2. Credibility of witnesses.3. Possession of stolen goods.4. Innocent possession.5. Direct evidence.6. Circumstantial evidence.

laWsTheft: the generic term for all crimes in whicha person intentionally and fraudulently takespersonal property of another withoutpermission or consent and with the intent toconvert it to the taker's use (includingpotential sale). In many states, if the value ofthe property taken is low (for example, lessthan $500) the crime is "petty theft,” but it is"grand theft” for larger amounts, designatedmisdemeanor or felony, respectively. Source:http://dictionary.law.com/Default.aspx?selected=2119

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Grand Theft/Grand Larceny: the crime oftheft of another's property (including money)over a certain value (for example, $500), asdistinguished from petty (or petit) larceny inwhich the value is below the grand larcenylimit. Some states only recognize the crime oflarceny, but draw the line between a felony(punishable by state prison time) and amisdemeanor (local jail and/or fine) based onthe value of the loot. Source: http://dictionary.law.com/Default.aspx?selected=829

Possession of stolen goods: the crime ofpossession of goods which one knows or whichany reasonable person would realize werestolen. It is generally a felony. Innocentpossession is not a crime, but the goods aregenerally returned to the legal owner. Source:http://dictionary.law.com/Default.aspx?selected=1556

Circumstantial evidence: evidence in a trialwhich is not directly from an eyewitness orparticipant and requires some reasoning toprove a fact. There is a public perception thatsuch evidence is weak (“all they have iscircumstantial evidence”), but the probableconclusion from the circumstances may be sostrong that there can be little doubt as to a vitalfact (“beyond a reasonable doubt” in a criminalcase, and “a preponderance of the evidence” ina civil case). Particularly in criminal cases,“eyewitness” (“I saw Frankie shoot Johnny”)type evidence is often lacking and may beunreliable, so circumstantial evidence becomesessential. Prior threats to the victim,fingerprints found at the scene of the crime,ownership of the murder weapon, and theaccused being seen in the neighborhood,certainly point to the suspect as being the killer,but each bit of evidence is circumstantial.Source: http://dictionary.law.com/Default.aspx?selected=191


FacTs

One warm spring day a teacher named Emily Sheppard wasgetting ready for another school day. She said goodbye toher German shepherd named Buster, and off she went toRiver Run Elementary, where she taught fourth grade.

Ms. Sheppard just moved into the neighborhood where sheteaches. The white picket fence in the backyard was perfectfor her dog to exercise and play. In addition, Ms. Sheppardlikes to be able to go home and let her dog out to exerciseand go to the bathroom during her lunchtime. The fencesurrounding her house has a faded sign indicating “Bewareof Dog,” but it is covered by some overgrown shrubs.

On occasion Buster has escaped from his backyard fence andhas run to the back door of River Run Elementary School,waiting for his owner to finish the school day and walkhome with Ms. Sheppard.

On Tuesday, May 23rd, the bell rang and the students linedup to go home. After the dismissal bell, Buster saw the kidswalking home from school and ran towards them. From adistance Charlie recognized Buster. Buster was excited to seethe children coming and was running in circles trying to gettheir attention. Charlie recognized that it was his teacher’spet because he knew where Ms. Sheppard lived. Charlietried to run with Buster back to his fenced-in yard and that’swhen Charlie put his leg out to shoo him through the gate,but instead Buster bit him.

The bite was so bad that Charlie had to get 22 stitches.Consequently, Charlie could not compete in his Little League

school

Bobby’s RunLumbertonGrade 4, HonorableMention

Teacher

Sandra Carver

sTudenTs

Annika BiggiEvan BoltniewAllison BonaventuraKayla BullockJimmy GalloDillon MacDonaldBrynn McGugan-RichesLillian SchickMarley Stutzman

The case oF The biTTen boy


baseball championship game later that week.Charlie’s parents are suing Emily Sheppard forhis medical expenses and counseling servicesdue to the traumatic experience and not beingable to play in the championship game laterthat week.

issue Is Ms. Shepard responsible for Charlie Bitten’smedical expenses and pain and suffering?

WiTnessesFor the PLaiNtiFFJoe Buddy Charlie Bitten

For the DeFeNDaNtEmily SheppardJay Walker

WiTness sTaTeMenTsteStimoNy oF CharLie BitteNI’m Charlie Bitten. I have no idea why Busterbit me! When I go to school I always pet him.Usually, I put a stick through the fence to getBuster’s attention, but I always take it away sohe can’t get it.

One day my friend Joe and I were walkinghome from school. We saw that Buster wasoutside his gate. Joe and I wondered how hehad gotten out. We didn’t know what weshould do so we kept on walking. As we werewalking, we heard noises in front of us. Joeand I looked ahead and saw Buster wascoming towards us. So I started to run withhim and tried to get him back home. I shooedhim with my leg so he would get into his gatebecause I didn’t want him to follow us home

and get into trouble by Ms. Sheppard. Butinstead of backing away, he bit my leg reallyhard. I screamed in pain. Buster had bit me. Itried to push Buster away with my other leg,but then he bit my same leg again. Finally,after what seemed like hours, Ms. Sheppardarrived and got her dog.

I had to get 22 stitches and I couldn’t play inthe Little League baseball championship game.I think Ms. Sheppard should pay for mymedical bills and counseling services.

teStimoNy oF Joe BuDDyI am Joe Buddy. I am best friends with CharlieBitten. We’ve been friends since kindergarten.Charlie Bitten and I are fourth-grade boys. Ourschool is River Run Elementary. I always walkto and from school with Charlie. Whilewalking, Charlie will normally pet Buster.Sometimes Charlie Bitten would run a stickdown the fence, or stick a stick through thefence and play tug of war with Buster.

However, one day we were going home fromschool and we saw Buster outside his gate. Ithink Buster recognized Charlie the same timewe recognized him because Buster startedrunning towards us. Charlie tried to get Busterback into his gate so he wouldn’t get intotrouble by Ms. Sheppard. Charlie used his legto shoo Buster back into his gate. I heardBuster growl and Charlie scream. That’s whenCharlie Bitten got bitten.

teStimoNy oF emiLy ShePParDI am the owner of Buster. I adopted him fouryears ago at the local animal shelter, and Iknow Buster would never hurt a fly. I’m afourth-grade teacher at River Run ElementarySchool. My student Charlie Bitten wasn’t a verygood student. He doesn’t follow directions in


class and talks too much to his classmates. Oneday, when I was walking to my house, I sawCharlie Bitten tantalizing my dog. He waspoking a stick through the fence at Buster andpretending that he had a treat in his hand buthe actually didn’t. And that made Busteragitated. I told him if he didn’t stop teasing mydog that I was going to call his parents. I guesshe didn’t listen to my warning.

The next day I had an early staff meeting but Inever heard my alarm go off. Buster licked myface to get his breakfast and I realized I wasgoing to be late if I didn’t hurry. I quickly gotready, got Buster food, let him outside, andthen left for school. I think I locked the gate.

Buster always played well with other dogs atthe dog park and almost never escaped out ofthe backyard. Sometimes he has met me afterschool to walk him home. Buster played withmy nephews well and never bit anyone.

The day that I heard from the police thatCharlie was bitten by Buster I was notsurprised at all. Charlie never listened to myearlier warnings and he never listens in class toinstructions. I knew that it was just a matter oftime that Charlie was going to get hurt byBuster. I don’t think that I should beresponsible for Charlie’s medical bills since hedoesn’t listen to me about my dog. Charlie wasalmost asking for Buster to bite him.

teStimoNy oF Jay WaLkerI live in the same neighborhood as EmilySheppard. I always used to walk my dog withher and her dog or go to the dog park together.Buster always played well with my dog.Whenever I went by her house walking mydog, I saw the “Beware of Dog” sign hiddenbehind the bushes. Sometimes while walking

my dog I saw two boys who regularly tease Ms.Sheppard’s dog either in the morning going toschool or sometimes after school calling forBuster with a stick in their hand.

On the day in question, I saw that Emily’s gatewas partially left open. It looked ajar. I wentover to shut the gate. It looked locked to me.Then I looked in and saw Buster, EmilySheppard’s dog playing happily with his bigred ball. I left and walked back home. Laterthat day, when the kids at River RunElementary were getting out of school, Ihappened to be walking my dog again. I sawtwo boys near Buster who was outside of hisfence. I have never seen Buster outside of hisfence. I heard screaming near the gate andturned to look back. That’s when I saw one ofthe boys on the ground bleeding and hittingBuster with a stick.

insTrucTionsThe plaintiff must prove by a preponderance ofthe evidence that Emily Sheppard, the dogowner of Buster, is responsible for CharlieBitten’s medical bills.

sub-issues1. Does Ms. Sheppard’s fence need repair

since Buster has escaped several timesbefore?

2. Should the “Beware of Dog” sign be moreclearly visible or even removed from thefence?

3. Should Charlie not have been playing withBuster, the dog, to and from school?

4. Are Charlie’s pain and suffering as seriousas he and his parents state?

39


concePTs

1. Burden of proof.2. Credibility of witnesses.3. Negligence.

laWNegligence is established when:

a. The defendant had a duty to protect theplaintiff from harm,

b. The defendant fails to fulfill that duty, evenif unintentionally, and

c. The defendant’s failure causes injury to theplaintiff’s person.

If the plaintiff’s acts contribute to the injury,such acts may reduce, but not necessarilyeliminate, the responsibility of the defendant.


FacTs

Saturday, November 1, 2015 was a cold, foggy day. VictoriaVictim, a 17-year-old girl, was walking across the street inthe crosswalk to the mall. She had headphones on listeningto music while texting her father about a family issue. At thesame time, the police were driving to a crime scene. Thepolice car lights and sirens were on, but Victoria couldn’thear or see them. She thought it was safe to cross the streetbecause the streetlight was red. While Victoria was crossingthe street, the streetlight changed to green. As the police carapproached Victoria in the crosswalk, the officer slammedon the brakes, but it was too late and the car hit her.

Victoria was rushed to the hospital and was informed that shehad a broken arm and leg. The doctor told Victoria the castswould last five weeks for the arm and seven weeks for the legto heal. Victoria was the star of her basketball team and thisinjury put her out for the season of her senior year of highschool. College scouts were scheduled to watch her games andshe was looking to receive a scholarship at the college level.

Later on, Officer Dylan Driver learned that the brakes werein need of repair. He was new to the job and didn’t know thebrakes were defective until he tried to use them. Theplaintiff claims that someone at the police departmentshould’ve told the officer the brakes were in need of repairbefore he left. The police officer claims he couldn’t see herdue to the fog. He claims he had to get to the scene quicklybecause of a robbery.

Victoria’s family is suing the Police Department for pain andsuffering, medical bills, and partial college funds.

school

Valley Road ClarkGrade 5, First Place

Teacher

Cindy Tarello

sTudenTs

Timothy FordGina GaliszewskiMackenzie Nielsen

The case oF The injured baskeTball sTarvicTiM v. Police deParTMenT


issue

Is the police department responsible forVictoria’s injury since she was texting whilecrossing the street with headphones on whilelistening to music? Can the police departmentbe held responsible to pay for potentialscholarship money?

WiTnessesFor the PLaiNtiFFVictoria VictimCorey Coach

For the DeFeNDaNtOfficer Dylan DriverMichael Man

WiTness sTaTeMenTsteStimoNy oF ViCtoria ViCtimI was heading for the mall, listening to music,and texting my dad while crossing the streetafter making sure the streetlight was red and Ihad the Ok signal to walk in the crosswalk. Allof a sudden, while I was crossing the street, apolice car flew in out of nowhere andwhammed right into me! I broke my arm andleg, which put me out of the spotlight for mysenior year of basketball.

My fans are really counting on me to bringhome the team title for the season and win thestate championship. College scouts have beenreaching out and scouting me all season to seeif I would play at one of the schools for a freescholarship. The schools that have beenscouting me are UCONN, Notre Dame,University of Maryland and more!

Ever since the accident, the calls and scoutingcompletely stopped! This accident has

completely ruined my season and my future! Iam completely devastated. I also have to missmy band practices and spring concert of mysenior year because of my injuries. The drivershould have been more cautious and aware ofhis surroundings, regardless of how fast he hadto be at a crime scene. He ended up causingmore harm by acting so carelessly!

teStimoNy oF Corey CoaChVictoria Victim is a superb all-state basketballplayer of mine. A scout from the UCONN girlsbasketball team was going to attend nextweek’s game against the Linden High SchoolTigers. A full scholarship was on the line andshe was very excited for the game. Then shewalked in with two casts and the team wasastonished.

The team was worried about Victoria, but theywere mostly worried about the upcominggames. They believe they have a small chanceof winning the games in the championship.Since Victoria is the star, I was a bit worriedmyself. Her absence could result in a loss ofthe finals. During her absence, she will have tomiss over 10 games and practices. Not only hasthis injury caused her trauma; it has alsomassively affected the team.

teStimoNy oF oFFiCer DyLaN DriVerIt was a foggy day at 2:00 in the afternoon. Iwas rushing to a crime scene when I sawsomething in the fog walking across the street.My sirens and lights were on and I was goingabout 40 miles an hour. Then I saw Victoriaout of nowhere! I hit the brakes, but theydidn’t respond fast enough. The brakes finallyresponded and the car stopped, but it was toolate. I had hit the figure. I got out of the carand saw it was a girl. I asked if she was okayand drove her to the hospital while she called


her father to tell him she was in the emergencyroom. Days later, I got a call telling me that thepolice department was being sued by thefamily of Victoria Victim.

teStimoNy oF miChaeL maNI heard sirens while walking down the street. Isaw a girl walking in the fog while texting. Shewasn’t paying attention to the car, so I tried towarn her. She didn’t listen and she just keptlooking at her phone. The sirens on the policecar were turned on, but the girl didn’t seem tocare. I saw the policeman attempt to stop, butnot in time. As soon as he stopped, it was toolate. He had hit her, but he got out of the carand did what he could to help her. I feel thatthe girl should’ve paid more attention to hersurroundings. Therefore, it was not Mr. Driver’sfault and he should not be held responsible forthis accident.

insTrucTionsThe jury must decide by a preponderance ofthe evidence whether Officer Dylan Drivershould be held responsible for Victoria’sinjuries. If so, do Victoria’s injuries affect hercollege scholarship possibilities?

sub-issues

1. Did the fog impair Officer Driver’s visionenough not to see Victoria?

2. Is Victoria responsible for her injuriesbecause she was wearing headphones andtexting while crossing the street?

3. Is the police department responsible fornot providing Dylan Driver with a safevehicle?

4. How much was the college scholarshipworth?

5. Was the street signal working properly?

concePTs1. Preponderance of the evidence.2. Credibility of witnesses.3. Negligence.

laWNegligence: Negligence is established whenthe defendant has a responsibility to protectthe plaintiff. The defendant fails to protect theplaintiff, even unintentionally. This failurecauses physical and/ or mental trauma to theplaintiff.


FacTs

Electro Prep, a New Jersey public school, began a newprogram in the 2015–16 school year. They distributed iPadsto all fourth- and fifth-grade students. Ownership of the iPadsremained with the school, but they were given to thestudents to keep for the school year. The school installedspecial software on the iPads so they could monitor what thestudents did. Upon receipt of the iPads, students wererequired to sign a document acknowledging that everythingthey would do on the device could be reviewed by the school.

On February 5, Audrey N. Appropriate, a fourth-gradestudent, sent an email to her friend and classmate, AveryInnocent. She sent the email from her home on the schoolissued iPad. In the email, she made some insultingcomments about their teacher, Emma Nosey, and called hersome rude names. She also suggested some schemes fordisrupting Ms. Nosey’s class.

In monitoring Audrey’s iPad, Ms. Nosey read the email. Shereported it to Principal Hacker and Audrey was suspendedfrom school for three days. Audrey is suing the school andPrincipal Hacker for wrongful suspension, claiming that theyviolated her right to privacy in reading her emails.

issueIs Electro Prep guilty of invading students’ privacy byreading students’ personal emails on school-issued iPads?

school

Yavneh AcademyParamusGrade 5, Second Place

Teacher

Cheryl Frankel

sTudenTs

Sienna DubeSophia EssesNeima HermanRebecca KiefferAdelle NovosellerPaige SchwartzNatalie Wisotsky

elecTro exPosedaudrey n. aPProPriaTe v. elecTro PreP and a. hacker


WiTnesses

For the PLaiNtiFFAudrey N. Appropriate Avery Innocent

For the DeFeNDaNt Emma NoseyPrincipal A. Hacker

WiTness sTaTeMenTsteStimoNy oF auDrey N. aPProPriateMy name is Audrey N. Appropriate. I am afourth-grade student at the Electro PrepSchool. This year, for the first time, students inthe fourth and fifth grades in Electro Prep wereissued iPads to use during the school year. Myfriends and I were very excited by thisinnovation in our school and looked forward tousing the iPads both in school and at home.

When we received the iPads, we were alsogiven several documents to fill out. Ourteacher told us we would not receive the iPadsunless we completed the forms. We weren’tgiven a choice, but were told the forms neededto be signed. I understand that Electro Prepand Principal Hacker say that I gave them theright to read my emails, but I certainly did notunderstand that that was what I was doing. Inever intended to allow them to invade myprivacy like that!

On February 5 I was working on a writingassignment at home and wanted to checksomething with my friend Avery. I emailed her“hello” and we were exchanging emails for awhile. In one of the emails, I said somenegative things about our teacher, EmmaNosey. Ms. Nosey doesn’t like me very much,and I was sharing all my complaints about herwith my friend. I suggested some schemes for

disrupting Ms. Nosey’s class. I was using theemail as an outlet for my frustrations. I neverbelieved we would actually carry out any of myschemes.

When I arrived in school the next day, I wascalled to Principal Hacker’s office. He told mehe had read my emails and that I wassuspended from school for three days. Icouldn’t believe it! I am a good student and Ihave never gotten in trouble before. PrincipalHacker had no right to read my emails. I mayhave written something rude and disrespectful,but it was meant to be private! Kids sometimeswrite things for others’ entertainment. I neverintended to harm anyone and did not deserveto be suspended. I am so embarrassed. Peoplethink I did something terrible because I wassuspended and they don’t know the facts. Myreputation is ruined!

teStimoNy oF aVery iNNoCeNtMy name is Avery Innocent and I am a fourth-grade student at the Electro Prep School. Ihave been best friends with Audrey N.Appropriate since we met in kindergarten. Sheis a good student and well-liked by her peersand by most of her teachers.

We were very excited to receive iPads fromschool. We are able to use them for schoolworkand projects, but of course we use them foremailing our friends as well. Audrey and Iemailed each other all the time from our homecomputers. Now, we are able to use our iPads.We aren’t doing anything we weren’t doingbefore, but now Ms. Nosey and Electro Prepare spying on our conversations. What aninvasion of privacy!

On the night of February 5, Audrey emailed melike many nights in the past. She soon started

45


to complain about our teacher, Ms. EmmaNosey, who has really been picking on Audreyat school. While it’s true that Audrey usedsome nasty words about Ms. Nosey, she wasjust venting. If she can’t complain to me, whocan she talk to? Isn’t that what friends are for?While Audrey also made some suggestionsabout acting up in Ms. Nosey’s class, I didn’ttake her seriously. We’ve made jokingsuggestions like that before when we’ve beenannoyed with teachers, but we never acted onthem. The email was intended for my eyes onlyand I knew that she didn’t intend for us tocarry out any of those schemes.

Reading our emails that we sent from homewas an invasion of our privacy. While theschool might have an interest in making surewe use the internet safely, that does not excusetheir reading our personal mail. Audrey shouldnot have been suspended.

teStimoNy oF PriNCiPaL a. haCkerMy name is A. Hacker and I am the principal ofElectro Prep School. I was excited when ourschool was asked to participate in a programwhere iPads would be issued to all fourth- andfifth-grade students at the school. Students usethe iPads for work both at home and in school.We were able to implement the use of theiPads into our curriculum to the extent thatwithout the iPads, students are unable to dosome of the homework and in-class activitiesnecessary to succeed academically. The schoolinstalled special software on the iPads so thatwe could monitor that the students were usingthe iPads safely. Responsible use of technologyis a top priority for our school.

When the iPads were issued, students signedan agreement which made them aware thateverything they did on the device could be

reviewed by the school. By signing theagreement, each student, including Audrey N.Appropriate, consented to allowing the schoolto monitor their use of the iPads. It was madeclear to the students that the iPads belonged tothe school and were only given to the studentsto use during the academic year.

As part of the iPad distribution program,teachers are required to randomly check ontheir students’ iPad use. On February 6 in themorning, Ms. Nosey told me that she hadrandomly checked student emails the nightbefore and that Audrey N. Appropriate hadbeen sending unacceptable emails. She showedme the emails, which included rude andoffensive language about Ms. Nosey, whichlanguage is expressly prohibited in our school.It also contained some specific plans fordisrupting Ms. Nosey’s class. I was shocked bythese emails. As principal, I need to enforce therules. When a student breaks the rules, shemust face the consequences.

teStimoNy oF emma NoSeyMy name is Emma Nosey and I am a fourth-grade teacher at Electro Prep. I, too, was veryexcited when our school was selected toparticipate in an iPad distribution program.The iPad has so many useful academic tools forstudents. I had concerns about studentsaccessing harmful content online, but PrincipalHacker assured me that the devices wouldinclude special software so the school couldmonitor what the students did and prevent anyabuse.

In fact, Principal Hacker told me that it wouldbe my responsibility to monitor my students. Iwas directed to randomly check what studentsdid on their iPads, including checking theiremail. The students were told that their usage


would be monitored and that the school couldread anything they did on their devices. Theyeven signed agreements allowing the school todo this.

On February 5, I was reviewing student workonline. I noticed that Audrey N. Appropriatehad not completed as much of the assignmentas she should have. I was looking through herother work to see if there was a pattern ofincomplete work, when I saw an email she hadwritten to her friend, Avery Innocent. In theemail she said many disparaging things aboutme, and while I was offended, that was notwhat concerned me. I was disturbed by someplans she had suggested for disrupting class,and even suggested that the disruption couldspread school wide. I was worried about thedamage that could occur in our school, and feltit was my responsibility to bring the emails tothe attention of Principal Hacker.

I know Audrey thinks I don’t like her, butnothing could be further from the truth. I am,however, disappointed in her behavior and donot think it should be condoned by the school.

insTrucTionsThe plaintiff must prove, by a preponderanceof the evidence, that the defendants violated

the students’ right to privacy in reading theirpersonal emails.

sub-issues1. Did the students waive their right to

privacy when they signed the agreementprovided by the school at the time theiPads were distributed?

concePTs1. Right to privacy.2. Waiver of rights.3. Internet safety.4. Burden of proof: preponderance of

evidence.5. Credibility of witnesses.

laWChild Internet Protection Act: Schools musthave measures in place to protect studentsfrom harmful online content.

The Fourth Amendment of the U.S.Constitution protects all Americans, includingminor students attending public schools, fromunreasonable searches.

The right to privacy can be waived, but awaiver is only valid if it was voluntarily made.


FacTsWeDrive, Inc. is a service which uses a mobile app allowingconsumers with smartphones to submit a trip request whichis then routed to WeDrive, Inc. drivers who use their ownvehicles. These vehicles are not licensed as taxicabs.WeDrive, Inc.’s pricing is similar to that of a metered taxialthough all hiring and payment are handled exclusivelythrough WeDrive, Inc. and not with the driver personally.Ms. I Nedaride picked up her six-year-old son Tommy fromschool around 3 p.m. In an effort to avoid walking duringthe impending snowstorm, Ms. Nedaride, using hersmartphone, ordered the WeDrive, Inc. service. When theWeDrive, Inc. vehicle arrived, the driver, Mr. Gottago,questioned Ms. Nedaride if she had a booster seat, given thenewly enacted law. The New Jersey car seat law mandatesthat babies and toddlers must remain in rear-facing car seatsuntil two years old and 30 pounds. Older children mustremain in the rear seat with booster seats until they areeight years old or 57 inches.

Ms. Nedaride was aware of the recently enacted law andsuggested this was an emergency given the weather forecast.She begged the driver to accept the fare despite the fact shelacked a booster seat. Ms. Nedaride entered the vehicle andrefused to leave when requested by driver I Gottago. In thespirit of cooperation, I Gottago reluctantly accepted the fareunder one condition - that Ms. I. Nedaride hold Tommy inher lap with a firm grip. Driver I. Gottago noticed that herson appeared to be having a temper tantrum in the rearpassenger seat.

While en route to her residence, Officer Nonsense wassitting in her patrol car when she observed a 2006 HondaPilot with an adult and young child sitting in a privatevehicle in the rear passenger seat without a booster seat.Officer Nonsense signaled the vehicle to pull over, and after

school

Johnnie L. Cochran Jr.AcademyEast OrangeGrade 5, HonorableMention

Teacher

Patricia Hurt

sTudenTs

Samuel AnetaneKaitlin BlountAmir BrownBrittany CasimirCourtney CrowderNicholas DePassJoleen EugeneNadine GaitaValson GardnerKing HaileyImari HamiltonSanai HawkinsJayden JenkinsTrinity JohnsonXavier LaPorteMyracle LockettToneyah LopezAnton RudolphJaiden StokesJibril SwintEmani TownesAuco Williams Jr.Tareak WilliamsTianna Whitten

i need a ride!


a brief conversation with the driver, issued asummons to both the driver and passenger forviolating the booster law, in violation of NJSA39:3-76A.

issue Is WeDrive, Inc. responsible for providing itspassengers with booster seats?

WiTnessesFor the PLaiNtiFFI NedarideTommy Tantrum Nedaride

For the DeFeNDaNtI GottagoMr. WeDrive

WiTness sTaTeMenTsteStimoNy oF i NeDariDeI am the mother of Tommy Tantrum Nedaride.On January 5, 2016, I picked up my son fromschool, and to avoid walking in the inclementweather, I ordered the WeDrive, Inc. service. Iam aware that the law recently changedrequiring all children under the age of eightyears old to be in a booster seat. I understandthat. It is the responsibility of the WeDrive, Inc.to provide the booster seat. Do they reallyexpect prospective passengers to walk aroundwith a booster seat in hand? The officer had noright to issue a summons to me. I was notdriving the vehicle.

When I ordered the service, the app didn’t askme if a young child would be traveling withme. I have always been reluctant about somebooster seats because children can be strangledby a strap or unable to get enough air due to

the way their bodies are positioned. This newlaw is unfair. At the very least, I believe Ishould be given some consideration due to thefact of the impending snowstorm.

teStimoNy oF tommy taNtrumNeDariDeI am six years old. I am a well-behaved kid. Idid not exhibit bad conduct in the WeDrive,Inc. vehicle. I had a toothache and I couldn’tstop crying. At school, the nurse said shecouldn’t give me anything for the pain. Mymother told me that once we were home, shewould give me a baby Tylenol. I was suffering.I was not having a temper tantrum.

teStimoNy oF i gottagoMy name is I Gottago. I am a driver withWeDrive, Inc. I received an electronicnotification from corporate to pick up apassenger from a nearby school. I had no ideathat the passenger had a child who required abooster seat. When I questioned Ms. I Nedarideabout the booster seat, she gave me a hardtime. Because of the inclement weather, shedidn’t think she could get another car service.

My corporate company, from what Iunderstand, has no written policy regardingbooster seats. I understand the New Jersey lawseat belt requirements. I think parents shouldprovide their own booster seats. There are somany booster seats on the market and manyhave been recalled because some are defective.Booster seats may slide, be a narrow fit or lacka lock system for extra security. Ms. Nedarideshould pay for the ticket when we appear incourt. It’s her responsibility, not mine.

teStimoNy oF mr. WeDriVe My name is Mr. WeDrive and I am thepresident of WeDrive, Inc. I want to address

49


the issue of booster seats. My company hastaken the position that passengers must supplytheir own booster seats. There is no one-size-fits-all booster seat. Because our drivers usetheir personal cars, the following problems canoccur: children may not sit all the way in theseat because the seat may be too narrow orchildren may fail to stay in position for theentire trip.

Several car booster seats do a poor job inpositioning children to fit properly. The seatbelt is meant to be routed across a child’slower hip and mid shoulders instead of thestomach because the liver and spleen are morevulnerable to injuries in the case of anaccident. If a WeDrive, Inc. driver provides thebooster seat and an accident occurs, WeDrive,Inc. would be liable for the child’s injuries.Parents know their children and shouldprovide the booster seat that they deemappropriate.

insTrucTions

The State must prove beyond a reasonabledoubt that the driver, I Gottago, and/orpassenger I Nedaride are liable to have abooster seat in the vehicle for any child up tothe age of eight years old or 57 inches.

sub-issuesIs WeDrive, Inc. held to the same standard as ataxicab given the fact that WeDrive, Inc. usesprivate vehicles?

concePTsTraffic tickets are quasi-criminal in nature.

laWAll summons issued by police officers arequasi-criminal matters and are heard in themunicipality where the offense occurred. Allmunicipal courts have limited jurisdiction. Theburden of proof is beyond a reasonable doubt.Upon a finding of guilt, the cost of such asummon ranges from $50–$75.


FacTs

On Friday, December 11, 2015, at Evergreen ElementarySchool, six-year-old Claire brought in dreidels and gelt (achocolate coin) for show and tell and shared aboutHanukkah. Claire taught her classmates the song, “I Have aLittle Dreidel.”

Over the weekend, Mary Dijuno, a classmate of Claire, andher family made chocolate crosses and printed out nativityscene coloring pages for Mary to share with her class thefollowing week. On Monday, Mary brought in her show-and-tell materials. When it was Mary’s turn to share, Ms. HollyDay, her teacher, stopped her. Mary continued to talk andher teacher became stern and demanded that Mary sit down.Mary started to cry and yell at Ms. Day. Ms. Day tried tocalm Mary down but she began screaming and crying thatshe wanted to share her chocolate crosses and tell the storyof baby Jesus. Ms. Day tried to send Mary to the principal’soffice for being rude and disruptive. Mary refused to leavethe room. Ms. Day called for assistance. The principal, Mr.Starr, had to physically carry Mary out of the classroom.Upon arrival at the principal’s office, Mary continued to cry,scream, and shout. As a result of being disrespectful to thetwo adults, Mary was suspended for two days.

Even after Mary’s suspension time was over, she refused toreturn to Evergreen Elementary School. Mary is currentlyseeing a therapist and is attending a private Christian school.The Dijuno family is suing the school board of EvergreenElementary, Mr. Starr and Ms. Day for violation of Mary’sFirst Amendment right of freedom of religion. The Dijunofamily is also asking the school district to pay for the cost of

school

Round ValleyLebanonGrade 6, First Place

Teacher

Renee Sielaff

sTudenTs

Alexis BoydIsabella CappuccioAlisa KozhukhovOlivia LaBrunoOlivia MalokAmelia McGrealSamantha PawlowkiCassidy ShannonImani Walker

shoW and Tell Fairness?dijuno v. evergreen eleMenTary school


Mary’s emotional therapy sessions and tuitionfor her new private school, St. Lucia’s ChristianAcademy.

issue1. Do religious holiday celebrations belong in

public schools? 2. Is it fair that Hanukkah is allowed to be

discussed in public schools but notChristianity?

3. Was Mary’s First Amendment right violatedby Holly Day?

WiTnessesFor the PLaiNtiFFMary DijunoAngelica Dijuno

For the DeFeNDaNtHolly DayDan Starr

WiTness sTaTeMenTsteStimoNy oF mary DiJuNoMy name is Mary Dijuno. I go to St. Lucia’sChristian Academy. My old school wasEvergreen Elementary School. I never want togo back to that school. It was Christmas timein first grade, and my best friend, Claire,shared a dreidel, and sang a song along with it.I was so excited to do that too, so my mom andI started making chocolate crosses, and aChristmas scene with baby Jesus. On Monday,when it was my turn to share about mychocolate crosses and the Christmas scene Ibrought in, Ms. Day kept interrupting me. So Istarted talking louder and so did Ms. Day.Then, Ms. Day yelled at me to sit down. Iyelled too, to make her understand that I justwanted to share like Claire, but she didn’t let

me. I screamed and Ms. Day yelled at me andtold me to go to the principal’s office. I was soupset and began crying. I just wanted to sharelike Claire did. I was so confused and angrythat I could not calm down. Mr. Starr camerunning into the classroom. I tried to kick himaway so I could share my chocolate crosses andscene.

He dragged me out of my classroom. When Igot to the office, Mr. Starr gave me a stuffedanimal and snacks. That helped but I still wasso angry that Ms. Day would not let me takemy turn for show and tell. Mr. Starr called mymom. She didn’t look happy when she came tothe school. She looked at me, then at Mr. Starr.My mom asked what happened. I told her thatI was just trying to share my chocolate andChristmas scene and that Ms. Day stopped me.Mr. Starr took my mom into his office. Whenshe came out, she looked madder than I haveever seen her before. She said we were goinghome.

Later I was told I wouldn’t go back to schoolfor a couple of days. When my mom said I hadto go to school again, I said no! I don’t wanteveryone to laugh and tease me. I never wantto see Ms. Day again. She was so mean to me.All I wanted to do was share my show and tell.Now I go to a new school, St. Lucia’s ChristianAcademy. I also have to see a doctor two timesa week. We talk about my feelings and howschool is going. At my new school, I can talk allI want about baby Jesus and nobody yells atme.

teStimoNy oF aNgeLiCa DiJuNo My name is Angelica Dijuno. My daughter,Mary Dijuno, used to go to EvergreenElementary School. On December 11, 2015,Mary came home from school very excited.


When I asked Mary why she was so happy, shesaid that her best friend, Claire, shared adreidel in class for show and tell and sharedabout Hanukkah. Mary wanted to sharesomething about her religion, so we both spenthours making chocolate crosses and printedout nativity scenes for Mary to share with herclass.

On Monday, Mary went to school with hershow and tell. She was so excited she couldnot sleep the night before. I was doing somehousework when I received a call from theprincipal of the school. Mr. Starr explained thatMary was being very disrespectful to him aswell as her teacher, Ms. Holly Day. I wasshocked to hear this because Mary is very niceto everyone.

I quickly drove to the school and walked intothe principal’s office. I was surprised to seeMary sitting with a stuffed panda and ablanket eating fruit snacks. I asked Mary whathappened and she burst into tears. She told methat Ms. Day told her to stop sharing and to sitdown. She told me she got upset and couldn’tcalm herself down. I was angry because ifClaire was able to share about Hanukkah,Mary should be allowed to share about themiracle birth of Jesus Christ.

Mr. Starr called me into his office. I tried tostay calm while Mr. Starr explained that Marywas being very disrespectful to him and to Ms.Day. As I was listening, I was beginning to getmore and more irritated in how the staffhandled the situation. My gosh, we are talkingabout show and tell! I told him it was not fairthat Claire was able to share and Mary couldnot. Then Ms. Day came in and Mr. Starrexcused himself and told Mary and me to waitin the lobby. Finally, after a while, Mr. Starr

told me that he was suspending Mary for twodays. I was outraged and left the school withMary in a huff.

After the suspension was over, Mary refused togo back to Evergreen. She would get hystericalevery morning to the point where she couldalmost not breathe. I contacted a therapist totake Mary to counseling. It was suggested thatMary attend another school. Thank goodness Iwas able to get Mary into St. Lucia’s ChristianAcademy with such short notice.

I am suing the school board, Mr. Starr and Ms.Day for their irresponsible actions. Mary’s FirstAmendment right was violated. She has toattend a private school and get weeklycounseling sessions. This is costing us a smallfortune all over an innocent show and tell.

teStimoNy oF hoLLy DayMy name is Holly Day. I am 28 years old andhave been working as a teacher at EvergreenElementary School for seven years. I teach firstgrade, love all of my students, and especiallyenjoy when students share about their personallife during show and tell.

On Friday, December 11, 2015, one very sweetstudent of mine, Claire, brought in dreidelsand gelt for her share. She taught everyoneabout Hanukkah and her religion. We allenjoyed the activity.

On Monday, another student of mine, MaryDijuno, also brought in materials to shareabout her religion and Christmas. She wasready to share her homemade chocolatecrosses and coloring pages when I realized thatthis might make some students feeluncomfortable. I have students of manydifferent faiths, and it is uncomfortable when

53


the children present their religion as the onlyone. My students have shared about differentreligions before but never Christianity. Thestudents are allowed to share about thesethings as long as they’re about the educationalparts of the religion, and not the religiousaspects. Mary was trying to teach us aboutbaby Jesus and salvation, which is not at alleducational.

Not wanting anyone to feel uncomfortable, Istopped Mary from sharing, and told her thatmaybe she should come back tomorrow andshare something else. She responded in a veryunruly way, screaming and crying, “I want toshare my candy!” I didn’t want her to disruptthe class any further, so I attempted to calmher and make her sit down. She refused torelax, though, and continued to throw atantrum. Realizing that I wasn’t making anyprogress with her, I called the principal, Mr.Starr, for assistance.

Mr. Starr had to come down to my classroomand escort Mary to the office himself. All of mystudents and I heard her screaming and cryingas Mary continued to throw a fit through thehallway. Once they had left our earshot,though, the class continued on as normal andthere were no more disruptions.

During my lunch break, I went down to checkon Mary and stopped in Mr. Starr’s office todiscuss what we should do about Mary’soutburst. Mr. Starr said that Mary should besent home with her mother and be suspendedfor two days because of her behavior.

The Dijuno family is suing my school board,Mr. Starr and me for violating Mary’s freedomof religion right. They are also suing for thecost of Mary’s therapy counseling and the fee

of her new private school, St. Lucia’s ChristianAcademy.

I am actually rather angry at the Dijuno familyfor suing Mr. Starr and me, as we both had nointention of violating anyone’s rights. I believethe whole incident was just one bigmisunderstanding.

teStimoNy oF DaN StarrMy name is Dan Starr. I have worked atEvergreen Elementary for 20 years. I’ve been aprincipal for 12 of them and eight as a teacher.I enjoy my job and dread the day I will have toretire. I was in my office eating a late breakfastwhen I received a phone call from a first-gradeteacher, Ms. Day, telling me I had to comedown to her room right away to assist with achild.

As I got closer to the room, I started hearingloud screaming and crying. I sprinted to theroom. When I got there, I found a young girlthrowing a tantrum on the floor. My eyeswidened with shock to see such a little girlthrow such a big fit. I went right into action.She kicked me and wouldn’t let me take herout of the room, so I tried to relax her bytalking to her calmly. Thank goodness Irecently took a course on crisis interventiontraining. I used the nonviolent proper transportposition to carry Mary out of the classroom. Itook her immediately to my office. Then Ioffered her a stuffed animal, a drink and fruitsnacks to calm her down.

When Mary was appeased, I called her mother.I said that Mary was being disrespectful to Ms.Day and me. She sounded very worried andbefuddled. I asked her to come to the school toget Mary and talk more about what happened.When she arrived at school, I saw her talking


to her daughter. I politely asked Mrs. Dijuno tostep into my office. I could tell she was nothappy. I tried to explain to her that Mary wasmaking other students and her teacheruncomfortable by teaching about Christianity.Mrs. Dijuno told me that we were violating herdaughter’s First Amendment rights. I kepttrying to explain the school’s position aboutreligion but she would not listen. Thankgoodness Ms. Day stopped by during her lunchbreak to check on Mary. I asked Mrs. Dijuno togo wait with Mary.

Ms. Day and I had a conversation about whattranspired in the classroom to cause Mary’stantrum. I decided to send Mary home andsuspend her for two days because of herdisrespectful actions. I knew there was goingto be trouble when Mary did not return andeventually withdrew from our school. If Mrs.Dijuno would have been reasonable, we couldhave worked this out. But instead, the Dijunofamily decided to sue us for violation of Mary’sFirst Amendment right of freedom of religion.They also expect us to pay for the cost ofMary’s emotional therapy sessions and her newprivate school. Seems to me if the parents hadbetter control over their daughter, none of thiswould have happened.

insTrucTionsThe plaintiff must prove by a preponderance ofevidence that the defendant was personallyresponsible for violating the plaintiff’s freedomof religion rights and must pay all fees relatingto therapy and school tuition reimbursement.

sub-issues1. Is the school responsible for the costs of

Mary’s emotional therapy and the costs of

her new school? 2. Was a school suspension the appropriate

way to handle the situation?3. Did Mr. Starr use unnecessary force? Could

he have removed Mary from the classroomin a different way instead of carrying herout of the classroom and embarrassing herin front of the whole class?

4. Should Mary have kept talking after theteacher stopped her or should she havestopped to properly handle the situation?

5. Did Mary overreact about not wanting tocome back to school?

6. Are the dreidel song and dreidels religiousor cultural in nature?

7. Are the chocolate crosses and nativityscene religious or cultural in nature?

8. Did Mary’s mother set the situation up topromote a religious agenda?

9. What was the true reason why Ms. Daystopped Mary from sharing during showand tell?

10. Why was Claire allowed to share herreligion but not Mary?

concePTs1. First Amendment.2. Burden of proof.3. Emotional suffering.4. Liability.

laW1. The Supreme Court has ruled that public

schools may not sponsor religious practices(Engel v. Vitale, 1962; Abington v. Schempp,1963) but may teach about religion.

2. It is the responsibility of the school toprovide a nurturing and safe environmentfor all students.

3. The First Amendment of the U.S.Constitution guarantees the right tofreedom of religion and speech.

55


FacTs

Ken Federate is an eighth-grade Caucasian male from theState of Mississippi. He loved the south – his friends, hisschool and his southern heritage. He had ancestors whofought in the Civil War. Everyone at his school considered hisfamily southern heroes. Once every year, on the date theCivil War started, the Federate family celebrated with amassive party to honor their heritage. They proudlydisplayed the Confederate flag which waved over theirhouse year-round.

On Saturday, August 1, 2015, Ken’s mother told him theywere moving north because his father received a promotionrequiring him and the family to relocate to southern NewJersey. Before the family moved, Ken’s grandfather gave himhis favorite belt buckle, which bore the image of theConfederate flag on it. His grandfather said it had been inthe Federate family for many generations and symbolizedsouthern pride.

The family moved, and on September 8, 2015, Ken Federatebegan school in Casino City, NJ. He proudly wore hisgrandfather’s favorite belt buckle as a symbol of his southernheritage. As he approached his locker, Barry O. Fended, anAfrican American student, was at a neighboring locker andsaw Ken’s belt. Barry told Ken it offended him andrespectfully requested that Ken Federate remove his belt.Ken refused to remove the belt, saying it was a symbol of hissouthern pride.

As the verbal altercation quickly intensified, a teacher whowas on hall duty walked by and asked the students about

school

Brigantine NorthMiddleBrigantineGrade 6, Second Place

Teacher

Rita Coyne

sTudenTs

Megan BaldwinGabriela BeareJason ChandlerTrevor CohenAidan DriscollMikayla GarratyArianna HaiderOlivia HengBelinda KinneyDillon KnoffKelsey LipshutzFrankie McArthurMalea RicciardiBrooke SharpIsabela SimpsonCharles StorrNicholas Visco

FederaTe v. casino ciTyboard oF educaTion


the cause of the problem. After they explainedit to her, she agreed with Barry O. Fended andpolitely asked Ken Federate to remove his beltand he, once again, refused. She then escortedhim to the principal, who again requested thatKen Federate remove his belt. After Kenrefused to do so, the principal issued a three-day suspension for violation of dress code andfor inciting potential violence. When Ken camehome, his parents were incensed and decidedto sue the school for violation of their son’sFirst Amendment rights.

issueDid Casino City Middle School violate KenFederate’s First Amendment rights of freedomof speech and expression by suspending himfor wearing a belt with the image of aConfederate flag on it?

WiTnesses For the PLaiNtiFFKen FederateConnor Federate

For the DeFeNDaNtNoah HarmBarry O. Fended

WiTness sTaTeMenTsteStimoNy oF keN FeDerateMy name is Ken Federate, and I am in theeighth grade at Casino City Middle School. Iam from Mississippi and was born and raisedthere. At my old school, I was in many clubsand activities, such as band and computer club,and maintained “B” honor roll. I go to churchevery Sunday and have done a significantamount of community service.

I love and miss my home back in Mississippi.My family believes in the Confederate flag andsees it as a symbol of hope and pride. I wasalways told that my ancestors, who fought inthe Civil War, were heroes and we hung theflag over our house all year long to rememberthe sacrifices they made.

My grandfather realized I was upset about themove and gave me a family heirloom, whichwas a belt with a Confederate flag on thebuckle. I love my grandpa and promised him Iwould treasure the belt and treat it with thehonor it deserved.

I was nervous on the first day at my newschool in New Jersey, but wearing my beltmade me feel like a part of home was still withme. When I arrived at my locker, an AfricanAmerican student approached me andcommented on my belt. He said it wasoffensive and made him very uncomfortable.He politely asked me to remove it.

Puzzled by his concerns and wanting to honormy grandfather’s wishes, I declined. Soon thediscussion escalated into an argument. Ateacher on hall duty passed by and asked ifthere was a problem. We explained thesituation and she decided it needed theprincipal’s involvement. The next thing I knew,I was sitting in the principal’s office.

The principal gave me a boring lecture on thedifferences between northern and southernculture. He said he understood my point ofview, but said his students should feel like theyare in a safe environment. I did not understandwhy the school wouldn’t be safe if I just woremy belt. How could a little belt harm a school’senvironment?

57


Finally, the principal asked me again to removemy belt, and when I refused, he issued me athree-day suspension. My parents wereenraged and decided to sue the school forviolating my First Amendment rights.

teStimoNy oF CoNNor FeDerateMy name is Connor Federate and I am apolitical science professor. I earned mydoctorate at Ole Miss, where I have beenteaching for 15 years. I was born and raised inthe State of Mississippi, as were my parentsand grandparents. Recently, I received an offerto become head of the political sciencedepartment at a New Jersey college. Since thisprestigious offer included a significant salaryincrease, I moved my family up north.

The Confederate flag, colloquially known asthe Stars and Bars, has proudly flown over thesouth for over a century and a half. Itsymbolizes the pride and heritage of all whofought and died in the Civil War. It is a part ofliving history, and is a huge part of my own lifeas it represents all the efforts my ancestorscontributed to the war effort. Furthermore, itwas incorporated into the left-hand corner ofthe Mississippi State Flag in 1894 and hasflown over the State Capitol since that time.The Confederate flag doesn’t represent hate; itis a remembrance of all those who lost theirlives fighting for the south.

Moving from the Deep South to a northern statehas been a difficult adjustment for my son. Myown father noticed his grandson’s reluctanceover the move and gave him the Confederateflag belt as a remembrance. Not only did itrepresent his heritage, it represented our home.The wearing of the belt on his first day of schoolreminded him of his hometown and everyoneand everything that used to be in his life.

When I found out my son had been suspendedfor wearing his belt, I felt discouraged anddisappointed that a school would “welcome” anew student this way. As an educator, I realizethat some apparel can be inappropriate;however, the Confederate flag, as well as astate flag, are constitutionally protected underthe Bill of Rights.

School administrators can’t just randomlyperceive symbols as trouble that can bebanned.

teStimoNy oF Noah harmMy name is Noah Harm and I have beenprincipal of Casino City Middle School for thelast 13 years. Prior to that, I was a teacher for14 years at the local high school. I earned mydoctorate in education from Butgers University.The school under my domain is very large, as ithas just over 800 students.

Casino City Middle School has a large schoolpopulation, so school safety is my number oneconcern. Conflicts do arise and fightsoccasionally occur. As school administrators,we always want to intercept a situation beforeit escalates.

Since 42% of our school’s student population isAfrican American, we don’t want to riskoffending them or any other students. We wantschool to be a safe and comfortableenvironment for all of our students, and avoidany racial tension.

Displaying the Confederate flag is a delicateissue that is currently causing a lot ofcontroversy. Only a few months ago, aCaucasian man, bearing the Confederate flag,assaulted an African American church andkilled seven churchgoers along with himself. It


appeared he was influenced by theConfederate flag and its negative connotations.As a result, many large companies are takingConfederate flags and apparel off their shelves.State capitols, Nascar races and majorsouthern colleges are either lowering or takingdown their Confederate flags. Due to thiscurrent issue in the news, I felt compelled totake immediate action with this potentiallyvolatile situation.

In addition, the historical significance of theflag should be considered. It has been in usesince 1861, when the flag’s designer, WilliamTappen Thompson, called it “The White Man’sFlag.” He said the flag’s white field symbolizedthe supremacy of the white man.

In this specific case with Ken Federate, his FirstAmendment rights are restricted in a schoolsetting, especially if the educational process ishindered. Furthermore, our dress codeprohibits our pupils from wearing items orapparel that disrupt the learning environment.

teStimoNy oF Barry o. FeNDeDHello, my name is Barry O. Fended. I am 14years old and I attend Casino City MiddleSchool where I am in the eighth grade. I getgood grades and am president of our school’sHistory Club. I take school very seriously as Iplan to take honors courses next year in highschool.

Ken Federate’s belt reminded me of my AfricanAmerican heritage and the pain my ancestorswent through during the Civil War era andbeyond. When I was a young child, my motherwould sing lullabies to me that her mothersang to her. They were passed down throughmany generations and spoke of the strugglesthe slaves had to endure.

History is my favorite subject so I am veryfamiliar with the background of theConfederate flag. I am president of our school’sHistory Club and take personal offense todisplaying the Confederate flag as it representsracial oppression and is a symbol of hate.

I was at my locker on the first day of schoolwhen Ken Federate walked over to the onenext to mine. As he was opening his locker, Inoticed a red, white and blue insignia on hisbelt. When I looked closer, I realized it was theConfederate flag. I explained to Ken that I tookoffense to the meaning of the belt, and askedhim to take it off. He said “no” because it waspart of his heritage and his grandfather gave itto him. I then talked about how it was myancestors that were oppressed for hundreds ofyears under that symbol.

It was then that Mrs. Newsbag walked up andinterrupted our argument. After listening to us,she escorted Ken Federate to the principal.Luckily, I didn’t see him or that dreaded beltfor the rest of the day. However, I remainedhighly emotional until after school when Iattended my History Club meeting. That’swhen I shared my experience with the othermembers. Four of the African Americanmembers were offended as well by the belt. SoI knew it wasn’t just me being overly sensitive;it really was a serious issue.

I understand Mississippi is the only state toincorporate the Confederate flag into the upperleft-hand corner of its state flag. Even thoughKen Federate sees one state accepted it intotheir flag, I see 49 other states rejected it,proving this symbol is not appropriate to use inour country.

59


insTrucTions

The plaintiff must prove, by a preponderanceof evidence, that his First Amendment rights asguaranteed in the United States Constitutionwere violated when the school districtsuspended him for expressing himself bywearing a belt which bore the symbol of theConfederate flag on it.

sub-issues1. Was the dress code policy violated? 2. Was the educational process disrupted for

Barry O. Fended and other AfricanAmerican students by the symbol of theConfederate flag?

3. Was Ken Federate just trying to expresshimself or was he making a statement?

4. Was the learning environment affected bythe image on Ken’s belt?

5. Is the Confederate flag a hate symbol orone of pride and heritage?

concePTs1. Freedom of speech/expression.2. School safety.3. Standard of reasonableness of the dress

code policy.4. Zero tolerance racial harassment policy.5. Definition of “appropriate.”6. Credibility of witnesses.7. Parental responsibility.8. Past case law—Tinker v. Des Moines School

District.

laWUnited States Constitution: First Amendment:“Congress shall make no law…abridging thefreedom of speech.”

Fraser Standard: The Fraser Standard (BethelSchool District. No. 403 v. Fraser, 1986) In the

case of Bethel v. Fraser, the Supreme Courtruled that school officials could punish astudent for offensive expression.

Tinker v. Des Moines School District, U. S.Supreme Court Ruling…upheld that freedomof expression of students is protected underthe First Amendment.

Hazelwood School District v. Kuhlmeier,Supreme Court Ruling…“Speech…can beregulated by the school if the school has alegitimate…concern in regulating the speech.”

Casino City Middle School Policy Handbook,Section 5, Disturbances and Demonstrations;Sub Heading: Responding to a SchoolEmergency. “School officials are empowered toorder unruly or disruptive students to leaveschool property. Any student who fails tocomply with such instructions is subject tosuspension or arrest.”

Casino City Middle School Policy Handbook,Section 8, Dress Code Policy: “Any form ofapparel that is offensive or disrupts theeducational process will not be tolerated.Chains, links and personalized belts will not bepermitted. Students should present a suitableappearance indicating pride both personallyand academically.”

Casino City Middle School Policy Handbook,Section 12, Racial Discrimination Policy:“The Casino City Middle School has a ZeroTolerance Policy for racial harassment.Students are encouraged to notify a schoolofficial if they feel offended or threatened.”

Title VI of the Civil Rights Act of 1964prohibits discrimination based on race, color ornational origin in programs or activities


receiving federal financial assistance.

Credibility of witnesses: A witness whosetestimony appears to be truthful and accurate.A witness is deemed credible if they arerecognized as a source of reliable informationabout someone or an event. The quality of thetestimony must be trustworthy and believable.

Parental responsibility: Parents andguardians are legally responsible to house,educate, appropriately clothe and care for theirchildren until the child reaches the age of 18.

61


FacTsOn December 7, Willy Lowd, a sixth-grade student at BelleMiddle School, who is a moderately autistic child, wasoutside school during his recess period with his aide. As hewas playing, the fire alarm sounded, which is a very loud,pulsating, high-pitched sound. This triggered a physicalepisode in which Willy started flailing his arms andscreeching loudly. His aide had difficulty restraining him.

As a result, a classmate named Missy Hurt who was standingnearby with her friends at recess, inadvertently got hurt. Thegirl was knocked to the ground and sustained a concussion.In addition, she required three stitches to close a cut in herforehead. The school nurse was immediately called to thescene, and the girl’s parents were called. They took her tothe emergency room at the local hospital for treatment.

Her parents decided to sue the school for not maintaining asafe environment for their daughter. They demanded thatthe autistic child be segregated from the general schoolpopulation and from recess.

issueDid Belle Middle School fail to maintain a safe environmentfor Missy Hurt? As a result, should Willy Loud, an autisticchild, be excluded from the general school population?

WiTnessesFor the PLaiNtiFFPhil Hurt Dr. Khan Cussion

school

Brigantine NorthMiddleBrigantineGrade 6, HonorableMention

Teacher

Rita Coyne

sTudenTs

Riana AlbersLiam AllingMary BennettGrace DischertAaliyah Carozzoni-Van Dyke

Maria Dela PenaGiavanna DellapaceDane EstlerBrandon HinesChase KaplanBrian (BJ) KuhnleyMichael RubinoAlexa PinoSamantha SmithJohn (Jack) VespertinoCharley VicarioDanielle Weidner

Fire drill draMahurT v. belle board oF educaTion


For the DeFeNDaNtIsabelle RinginAl Lowd

WiTness sTaTeMenTsteStimoNy oF PhiL hurtMy name is Phil Hurt and I am the parent ofMissy Hurt. I have a college degree inaccounting, and am a financial supervisor atour local hospital, where I’ve worked for 10years.

On the afternoon of December 7, I received acall from the nurse at my daughter’s schoolinforming me that she sustained injuries atrecess. After I rushed out to the school, I foundout it was the result of an outburst from anautistic child. I was upset to realize thatnobody controlled Willy Lowd. As I understandit, this autistic child knocked my poor daughterto the ground, causing her to hit her head onthe curb. This resulted in her sustaining aconcussion and requiring her to have threestitches to close the wound.

We don’t know the long-term effects of theconcussion. She is already suffering fromheadaches, but my concern is that thesesymptoms may worsen. In addition, mybeautiful daughter now has a permanent scaracross her forehead.

I am suing the school for failure to maintain asafe environment for my daughter and to havestudents like Willy Lowd segregated from therest of the school population so something likethis doesn’t happen to another student.

teStimoNy oF Dr. khaN CuSSioNMy name is Dr. Khan Cussion. I earned mymedical degree from the NJ College of

Medicine. I have been a pediatrician for thelast 15 years and have been Missy Hurt’sdoctor since she was born.

On the afternoon of December 7, Mr. Hurtbrought his daughter into the ER, and as thefamily physician, I was immediately called. As Iwas making rounds in the hospital, I was ableto assist in treating Missy for her injuries.

It is difficult to predict the long-term effects ofa concussion in a child. It may be decadesbefore the brain completely heals from thetrauma. Concussion may causeconfusion, headache, nausea, disturbed sleep,moodiness, amnesia and more. The scar on herface, although quite traumatic now, will, in allprobability, fade and diminish in time.

This is an unfortunate situation that hasoccurred. But now Missy Hurt is considered ahigh-risk patient and will need to be medicallyevaluated on a continual basis.

teStimoNy oF iSaBeLLe riNgiNMy name is Isabelle Ringin and I am theprincipal of Belle Middle School. I earned mydegree from Trenton State and taught for 14years before being promoted to principal.

On the afternoon of December 7, we had a firedrill. As required by the fire department, thealarm is a very loud, pulsating sound to enablehearing-impaired persons to hear it.Unfortunately, this sound triggered a reactionin Willy Lowd, a moderately autistic student inour school. He was at recess when the alarmsounded, and the sound sent him into physicalspasms. For an autistic child, loud unexpectednoises can be extremely frightening andoverwhelming. In fact, this response can becommon to any sensory stimuli, such as bright

63


lights or stormy weather. The child doesn’teven realize what has provoked him, he simplygets overwhelmed by the cause of thesituation. His reaction can become physical inresponse.

In this case, Willy Lowd was flailing his armsand screaming as a reaction to the fire alarm.As the aide was attempting to restrain him, heaccidently hit Missy Hurt, knocking her over.With regard to the safe environment issue,children are going to get hurt on a playground.It’s just a fact of life. As a school, we doeverything we can to keep them safe. It isimpossible to foresee every situation.

I understand Mr. and Mrs. Hurt want tosegregate Willy Lowd from the generalpopulation. However, this is against the law,specifically the Individuals with DisabilitiesAct. Willy Lowd needs to be with the generalpopulation in order to enhance his social skills.If he doesn’t learn to interact with others as ayoung child in school, how will he ever learnto interact with others as an adult?

teStimoNy oF aL LoWD My name is Al Lowd and I am the father ofWilly Lowd, an autistic child. I was notified onDecember 7 by my child’s school that therewas an incident involving my son. Apparently,there was a fire drill, and the noise frightenedmy son to the point where he had an episode.He accidently knocked another student over intrying to escape the sound.

Autistic children have limited control overtheir behavior, especially when frightened or inreaction to unexpected noises. Their reaction isalmost knee-jerk and most certainlyinvoluntary. He couldn’t understand the causeof the sound, and couldn’t comprehend that it

was only temporary and would end soon. Tohim, this sound may go on forever. Out of painand frustration, he became physical. His aidetried to use behavior modification techniques,and then eventually tried to restrain him.Unfortunately, the other student was alreadyknocked over by this point. Since he has nocontrol over these seizures, he shouldn’t beheld liable.

To remove him from the general schoolpopulation would be cruel. The only way forhim to learn proper social skills is to be withthe other children.

insTrucTionsDid the plaintiff prove, by a preponderance ofevidence, that the defendant was negligent fornot maintaining a safe environment for MissyHurt? Should Willy Lowd be removed from thegeneral school population?

sub-issues1. Was the aide negligent in not restraining

the autistic child quicker?2. Does the school need to provide more in-

depth training for their aides?3. Does the school need to provide multiple

aides for the autistic child?4. If the autistic child exhibits violent

behavior, should he or she be moved to amore restricted special needs environment,either within or outside of the school?

5. Should the school have prepared better inadvance for a planned event, such as thefire drill, that could have prevented anegative impact on the autistic child andothers?


concePTs

1. School safety.2. Negligence.3. Foreseeability.4. Pain and suffering.5. Fire drills.6. Accommodations for disabled students in a

public school setting.

laWIndividuals with Disabilities Act (IDEA): is afederal law that requires schools to servethe educational needs of eligible studentswith disabilities. It ensures that students with adisability are provided with appropriate publiceducation that is tailored to their needs.

“Free and Appropriate Public Education”(FAPE): provides for a “free and appropriateeducation” for all school-age children withdisabilities. The child should be placed in theenvironment in which he or she has thegreatest possible opportunity to interact withchildren who do not have a disability and toparticipate in the general educationcurriculum.

Individualized Education Program (IEP): a legal outline that details a child’s educationalgoals, disabilities, and the services and supportthe school will provide. It is an evaluation for

the student with parent and teacherinvolvement, custom tailored to the child’sneeds.

Special Education Services: instructionspecifically designed to meet the educationaland developmental needs of children withdisabilities.

National Fire Protection Association: createsand maintains fire code and standards that areadopted by local government.

New Jersey Department of Education, Officeof School Preparedness and EmergencyPlanning: School Safety and Security Plans.Public Schools are required to hold fire drillstwice a month while school is in session.

The Americans with Disabilities Act (ADA):is a federal civil rights law that providesprotections to individuals with disabilities. Itguarantees individuals with disabilities equalaccess to public accommodations. Title II of theADA governs public entities which includes anystate and local government and anydepartment or agency of a State or State andlocal government. This includes public schools.Under Title II, a public school must ensure thatits services, programs, and activities areaccessible to students with disabilities.

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mock trial exercises · 2017. 9. 9. · exercises for grades 3 –6 featuring winning cases from...

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