Rutledge v. Arizona Bd. of Regents, No. 1

CourtCourt of Appeals of Arizona
Writing for the CourtOGG
Citation711 P.2d 1207,147 Ariz. 534
Parties, 29 Ed. Law Rep. 1161 Kevin RUTLEDGE, Plaintiff-Appellant, v. ARIZONA BOARD OF REGENTS, Arizona State University, Frank Kush, William Maskill and Gary Horton, Defendants-Appellees. 6282.
Decision Date23 May 1985
Docket NumberCA-CIV,No. 1

Page 1207

711 P.2d 1207
147 Ariz. 534, 29 Ed. Law Rep. 1161
Kevin RUTLEDGE, Plaintiff-Appellant,
v.
ARIZONA BOARD OF REGENTS, Arizona State University, Frank Kush, William Maskill and Gary Horton, Defendants-Appellees.
No. 1 CA-CIV 6282.
Court of Appeals of Arizona,
Division 1, Department A.
May 23, 1985.
Review Denied Sept. 24, 1985.

[147 Ariz. 537]

Page 1210

Wentworth & Lundin by Robert Ong Hing, Michael W. Herzog, Phoenix, for plaintiff-appellant.

Gallagher & Kennedy by Michael L. Gallagher, Kevin E. O'Malley, Phoenix, for defendant-appellee Arizona Bd. of Regents.

Snell & Wilmer by Warren E. Platt, Robert J. Gibson, Shirley J. Wahl, Phoenix, for defendant-appellee Kush.

Robert K. Corbin, Atty. Gen. by Richmond K. Turner, Asst. Atty. Gen., Phoenix, for defendants-appellees Maskill and Horton.

OPINION

OGG, Judge.

This appeal arises from the alleged assault of former Arizona State University (A.S.U.) football player Kevin Rutledge (Rutledge) by former head football coach Frank Kush (Kush). Rutledge filed suit against Kush, A.S.U., the Arizona Board of Regents (Board), and various other A.S.U. officials.

147 Ariz. 538

Page 1211

FACTS

We begin by setting forth a brief summary of the facts giving rise to the lawsuit. Rutledge was a member of the 1978 A.S.U. football team. He was a sophomore, having been on the varsity team the previous year as a freshman. Prior to the start of the 1978 season, Rutledge was considered the team's starting punter and was also a back-up defensive back. Apparently Kush was not satisfied with Rutledge's performance during pre-season camp, resulting in Kush ordering that Rutledge was not to suit-up for the first game of the 1978 season. Kush asserted at trial that the reason he did not have Rutledge suit-up for the first game was that he hoped that Rutledge would become irritated and thus motivate himself to concentrate and perform better. Rutledge asserted that the reason he did not suit-up was that he was to be "red-shirted" 1 during the 1978 season, due to the physical effects of a January, 1978 automobile accident. Kush denied that he knew of Rutledge's alleged injuries or that Rutledge was to be red-shirted because of his alleged injuries.

Rutledge did suit-up and punt in the next six games, including the October 28th game at the University of Washington. A.S.U. played an exceptionally poor game against Washington and Rutledge was no exception. Rutledge testified that, after a third consecutive poor punt late in the game, Kush approached Rutledge while he was standing on the sidelines, grabbed the face mask of Rutledge's helmet, pulled it sideways so that Rutledge was facing Kush, began shaking the face mask and calling Rutledge various obscenities, and finally delivered an uppercut punch to Rutledge's face. Rutledge testified that he suffered a split lip as a result of the punch. Kush denied having punched Rutledge and testified that he could not recall if he had grabbed Rutledge's face mask.

Rutledge asserted that after the Washington game, Kush and assistant coach William Maskill did everything they could to force Rutledge to leave A.S.U. and forfeit his scholarship. Rutledge did in fact leave A.S.U., transferring to the University of Nevada at Las Vegas prior to the 1979 football season. Rutledge maintained at trial that he was forced to leave A.S.U. as a result of "constant physical and mental abuse" from both Kush and Maskill. Kush denied pressuring Rutledge into leaving the team.

Rutledge filed a complaint in Maricopa County Superior Court on October 22, 1979. Named as defendants in the lawsuit were: (1) the Board of Regents; (2) A.S.U.; (3) Frank Kush; (4) William Maskill; (5) Gary Horton; and (6) Fred Miller. On January 11, 1980, the complaint was amended to join as defendants in the action Frances Kush, Mary Helen Maskill, Jean Miller, John Schwada, Jane Doe Schwada, George Hamm and Jane Doe Hamm.

Rutledge's first amended complaint contained an allegation (Count V) that various defendants had violated 42 U.S.C. §§ 1983 and 1985(2). On May 30, 1980, the trial court granted defendants' motion to dismiss Count V. Rutledge subsequently filed his second amended complaint, setting forth nine claims for relief.

Count I of the second amended complaint alleged that Kush had assaulted and battered Rutledge during the October 28, 1978 football game against Washington. Count II alleged that Kush and Maskill intentionally interfered with Rutledge's contractual and advantageous business and educational relationship with A.S.U. Count III accused both Kush and Maskill of conspiracy to interfere with Rutledge's contractual and advantageous business and educational relationship with A.S.U. Count IV alleged that Kush misrepresented the availability of football scholarships during the 1977-1978 school year. Count V set forth a [147 Ariz. 539]

Page 1212

claim for defamation against Kush. Count VI alleged that Kush and Maskill were liable for intentional infliction of emotional distress. Count VII was based upon respondeat superior and was asserted against A.S.U., the Board of Regents, Miller, Hamm and Schwada for the actions of Kush and Maskill. Count VIII alleged that the Board of Regents breached its contract with Rutledge by allowing Kush and Maskill to coerce Rutledge into leaving A.S.U., thereby forfeiting his scholarship. Count IX was asserted against the Board of Regents, Miller, Schwada and Hamm for negligent supervision of Kush. Rutledge sought compensatory and punitive damages under all counts except Counts VII (respondeat superior ), VIII (breach of contract), and IX (negligent supervision), in which he sought only compensatory damages.

Prior to trial, Counts III (conspiracy to breach contract) and VI (intentional infliction of emotional distress) against Kush and Maskill were dismissed following motions for summary judgment. Additionally, the Board of Regents was granted summary judgment on Count IX (negligent supervision). 2 Defendants Miller were dismissed from the lawsuit on December 9, 1980.

Thus, following pretrial rulings, the following issues remained for trial:

1. As to Kush:

(a) Assault and battery;

(b) Intentional interference with contractual relations;

(c) Defamation;

(d) Misrepresentation.

2. As to Maskill:

Intentional interference with contractual relations.

3. As to the Board of Regents:

(a) Breach of contract;

(b) Liability under respondeat superior for the actions of Kush and Maskill.

4. As to Hamm 3 and Schwada:

Negligent supervision of Kush.

Trial commenced on January 26, 1981. On February 12, 1981, the trial court ordered that the trial be bifurcated. The court ordered that the claims of assault and battery, defamation and misrepresentation against Kush and the Board of Regents be tried first. The remaining issues of intentional interference with contract, breach of contract and negligent supervision were ordered tried after the jury returned a verdict on the first three claims. The trial court ordered that the jury would be permitted to consider all evidence presented in the first phase of the trial during their deliberations in the second phase of the trial.

On March 17, 1981, the trial court granted Kush's motion for a directed verdict on the defamation claim (Count V). On March 20, 1981, the jury returned verdicts in favor of Kush and the Board of Regents on the remaining claims of assault and battery and misrepresentation. Phase two of the trial resulted in jury verdicts in favor of all defendants on all remaining claims. Rutledge's subsequent motion for a new trial was denied. Pursuant to A.R.S. § 12-341.01(A), the trial court awarded the Board of Regents $20,000.00 in attorneys' fees.

Rutledge raises several issues for our review. We discuss each issue as set forth below.

BIFURCATION

As previously noted, the trial court ordered that the claims of assault and battery, defamation and misrepresentation be tried prior to the claims of intentional interference with contract, breach of contract and negligent supervision. See Rule 42(b), Arizona Rules of Civil Procedure. The trial court's rationale for bifurcating trial of Rutledge's claims was set forth in a minute entry as follows:

IT IS ORDERED that evidence of alleged mistreatment of other football [147 Ariz. 540]

Page 1213

players is admissible against the Defendant Kush on the Plaintiff's cause of action for interference with contractual relationship to prove that the Defendant Kush's coaching methods may have resulted in breaches of contract and that the Defendant Kush knew or should have known that such behavior would result in Plaintiff abandoning his scholarship and on the issue of punitive damages for interference with contractual relationship. It is not admissible under any other theory in connection with any claims for assault, defamation or misrepresentation or punitive damages relating to such theories. LaFrentz v. Gallagher, 105 Ariz. 255, 462 P.2d 804 (1969).

A limiting instruction to the effect that the jury could consider the evidence on the contract issue but not on the assault issue would be ineffective. The trial will, therefore, be bifurcated. (emphasis added)

Rutledge presents three arguments which he asserts constitute grounds for reversible error as a result of the trial court's bifurcation order. First, Rutledge maintains that the trial court erred in holding that Kush's alleged abuse of other A.S.U. football players was not admissible against Kush on the claims of assault and battery, defamation or misrepresentation. Specifically, Rutledge asserts that, while the trial court properly concluded that prior assaultive acts of Kush were not admissible to prove that Kush assaulted Rutledge, see LaFrentz v. Gallagher, 105 Ariz. 255, 462 P.2d 804 (1969), the court erred in holding that the prior acts were not admissible on the issue of punitive damages flowing from the alleged assault and battery. Rutledge takes the position that the prior assaultive...

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