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December 7, 1973

Denise MAUK and Paul R. Finkler, Plaintiffs,
Stephen T. WRIGHT et al., Defendants

Herman, District Judge.

The opinion of the court was delivered by: HERMAN

HERMAN, District Judge.


 The instant case arises out of an automobile accident in which the plaintiff Denise Mauk was injured. *fn1" Miss Mauk was the sole occupant of a 1969 Volkswagen owned by the plaintiff Paul L. Finkler. The defendant Stephen T. Wright was the driver of the other vehicle, a 1968 Lincoln Continental, owned by defendant Roy L. Schmidt. Both Wright and Schmidt were employed as professional football players for the defendant Pro Football, Inc. (hereinafter the Washington Redskins). The Redskins and Schmidt have separately moved for summary judgment.

 The auto accident at issue occurred shortly after Midnight on July 31, 1971 under apparently rainy conditions (deposition of Wright, p. 35). The defendant Wright had just picked up a girl friend to give her a ride from her place of employment to her residence in Carlisle, Pennsylvania. Carlisle is the site of the Redskins' "Annual Training Camp," located on the campus of Dickinson College. The training camp was operated from approximately July 10 until about Labor Day of 1971 (deposition of Redskins' Coach George Allen, p. 4). The nature of the camp will be examined in some detail infra as it is crucial to the plaintiffs' case.

 The day before the accident had apparently been spent by the players in ordinary football training exercises. Following the dinner hour the team viewed training films until mid-evening when it was suggested they watch the annual College All-Star football game which began at 9:00 P.M. on the evening of July 30. Coach Allen described the televised game as a "clinic for us. We like to see it. It helps us to evaluate other players" (Allen deposition, p. 7). *fn2"

 The players all operate under a curfew which that evening was set at thirty minutes following the end of the televised game. The usual curfew, accompanied by a bed check, was 11:00 P.M., with lights out fifteen minutes later (Allen deposition, p. 7).

 Wright watched the game for a time at a local "beer joint" then proceeded to a local cocktail lounge where his girl friend was employed. There he encountered several other team members (Wright deposition, p. 33). Several minutes later, at about Midnight, Wright and his girl friend left the cocktail lounge and were shortly thereafter involved in the collision. Because of the curfew, Wright would have had to proceed directly from the lounge to drop off his girl friend and thereafter to the dormitory on campus.

 Miss Mauk seeks compensation for permanent injuries, medical expenses, loss of earnings and pain and suffering, naming all three defendants. Finkler is claiming compensation from all three defendants for the destruction of his automobile.


 The novel and complex problem now before the court arises from the motion for summary judgment by the defendant Washington Redskins. In a motion for summary judgment, pursuant to Rule 56, Federal Rules of Civil Procedure, the movant has the "burden of showing the absence of any genuine issue of fact." Adickes v. Kress & Co., 398 U.S. 144, 153, 90 S. Ct. 1598, 1606, 26 L. Ed. 2d 142 (1970). The Third Circuit has concluded that "matters presented must be construed most favorably to the party opposing the motion, and that it is well settled that such a motion will not lie where there is a genuine issue as to a material fact." Long v. Parker, 390 F.2d 816, 821 (3d Cir. 1968).

 The court must not only construe the facts favorably to the plaintiffs, but as noted in Kridler v. Ford Motor Co., 422 F.2d 1182, 1184 (3d Cir. 1970):

"[A] case must be submitted to the jury if 'the evidence presented [is] such that . . . a jury can reach the conclusion sought by plaintiff, and not that that conclusion must be the only one which logically can be reached. . . . [It] is enough that there be sufficient facts for the jury to say reasonably that the preponderance favors liability . . . . '" Quoting Smith v. Bell Telephone, 397 Pa. 134, 138, 153 A.2d 477 (1959) (Emphasis in original)

 We must therefore view our task as determining whether the movants have met their burden of establishing that as a matter of law no reasonable construction of the facts would support a jury finding that Pro Football, Inc. could be liable under the doctrine of respondeat superior based upon a master-servant relationship.

 The essence of the plaintiffs' argument is that professional football players, in the context of training camp, are effectively under twenty-four hour per day control, seven days per week. As a result, the plaintiffs contend even leisure time is spent within the scope of the employment relationship.

 The Redskins' professional training camp lasts approximately seven weeks during the summer, immediately preceding the onset of exhibition games and the regular competitive season. The training season serves two basic purposes: to physically prepare the players for the grueling schedule of games and to allow the coaching staff to observe players to determine which men will be "cut" from the roster. The National Football League limits a team to 40 members.

 During the training period the team members remain on the college campus, living and eating there seven days a week, in order to "prepare and discipline" (deposition of Coach Allen, p. 6). Briefly, the control over the players consists of requiring all players to live in the college dorms away from their families. They must take all meals in the college cafeteria and in fact are fined if they fail to attend a meal. They, of course, have daytime training sessions which are mandatory, as are evening sessions viewing training films with particular coaches, etc. (A $200 fine was levied on a player who was late to an evening meeting. Allen deposition, p. 25).

 The team also requires that players be in their rooms with lights out by a certain hour. Coaches conduct bed checks to assure compliance. The players were required to meet certain weight requirements or be fined. (One player was fined $2,000 for being overweight. Allen deposition, p. 25).

 The players are not permitted to date students at the college. They are not permitted to ride motorcycles. The player contract carried further provisos that prohibit drinking intoxicants; prohibit association with gamblers; require reporting any injury to the coach and club physician; require the wearing of coats and neckties in all public places; and prohibit television appearances and interviews without the Club's consent.

 The entire National Football League provides a unique backdrop to the employment situation. The standard player contract *fn3" has clauses which if violated effectively bar the player from joining any other team. *fn4" As a general provision of employment, the Redskins' rules for training camp provide: "The Club reserves the right to impose and require observance of reasonable standards of personal conduct, regardless of whether these situations are directly connected with the team. *fn5"

 This brief outline of the professional training camp reveals, according to the plaintiffs, an employment situation so unique that recreation time is an integral part of employment. *fn6"

 This court is bound by the law of the courts of Pennsylvania. Wilson v. United States, 315 F. Supp. 1197 (E.D. Pa. 1970) *fn7" The Pennsylvania courts have concluded that the jury must be the fact finder as to the issue of employment. Testard v. Penn-Jersey Auto Stores, Inc., 154 F. Supp. 160, 162 (E.D. Pa. 1956). See also, Baker v. Texas & P.R. Co., 359 U.S. 227, 229, 79 S. Ct. 664, 3 L. Ed. 2d 756 (1959); McGuire v. United States, 349 F.2d 644, 646 (9th Cir. 1965). The scope of employment is also in the province of the jury. Norton v. Rwy. Express Agency, Inc., 412 F.2d 112, 114 (3d Cir. 1969). In Norton the court concluded:

"There is no question that under the law of Pennsylvania, the scope of the authority or employment of an agent or servant is a factual issue for jury determination. . . ." *fn8"

 There existing no fixed rule for determining the existence of a master-servant relationship, Bonney Motor Express, Inc. v. United States, 206 F. Supp. 22, 26 (E.D. Va. 1962), the court must therefore act on a case by case basis. R & H Corp. v. United States, 255 F. Supp. 870 (W.D. Pa. 1966).

 An understanding of the controlling law is necessary. First, there must exist a master-servant relationship between Wright and the Redskins. Second, Wright's activities surrounding the accident must have been within the scope and course of that employment relationship in order to make the Redskins liable. Dickerson v. American Sugar Ref. Co., Inc., 211 F.2d 200 (3d Cir. 1954); United States v. Lushbough, 200 F.2d 717, 720 (8th Cir. 1952); Kemerer v. United States, 330 F. Supp. 731 (W.D. Pa. 1971); Lunn v. Yellow Cab Co., 403 Pa. 231, 235, 169 ...

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