1 H ow to B r ief a C ase P r epa r ed for t.docx

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H ow to B r ief a C ase
P r epa r ed for the L egal Studies P rogr am
A me r ican P ublic U nive rsity System
D ecembe r 2013
I ntrodu ction : A case brief is a concise summary of the
significance of a case. It is a bit
like but with very special rules! It is a time-honored practice
used throughout
the legal profession and law schools. As a teaching tool, the
case brief forces the student to
identify and provide a written description of the most important
aspects of a case. Legal
precedent, also known as Stare D ecisis, is a doctrine which
governs much of our legal process.
and the
rationale underlying it ---- that is, how the judges arrived at
their decision ---- is essential to
the study of law. The case brief serves as a very useful vehicle
by means of which to analyze
and understand judicial decisions.

A case brie
aspects of a case. A case brief is not an invitation to re-write
the opinion or to paste together
ed on your
understanding of the case. Of cour words can be useful, if used
sparingly. A case brief should be concise; it should be no more
than 1-2 pages. There are at least
several different methods or models for writing the case brief;
these are based on personal
preferences. In the Legal Studies Program, however, the
format described here will be used for
all of the case briefs which you are required to write in your
courses. By using this uniform
format, you will gain familiarity with the case analysis and
brief writing process.
opinion, rather than a mere summary. Therefore, the first step
in the brief writing process is
always to thoroughly read the entire case. This includes reading
any concurring and dissenting
opinions of members of the court. In this regard, be very sure
that you are reading the entire
opinion! In some internet based sources, the Syllabus
(headnotes/summary) of the opinion is
presented at one link, the majority opinion is presented at
another link, etc. You need to read all
portions of the opinion as all of them are relevant to your
analysis of the case. For example, if
there are strong dissenting opinions based on key legal points,
this could predict what the court
might decide in the future on similar issues.

1. C ase N ame and C itation: As a header on the first page of
your brief, you should state
citation to the case. (See Bluebook resources in the APUS
library for more information about
Bluebook format.) It is essential that the reader of your case
brief know who initiated the
litigation and who appealed. For example, in the sample case
brief of the D elahanty case (see
accompanying materials), Thomas and Jean Delahanty are
clearly identified as the plaintiffs
(parties who initiated the litigation) and as appellants (parties
who sought appellate review of the
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legal reporter in which the opinion is found, the volume and
page on which the case appears, and
the year in which the case was decided.
2. F acts: The Facts section is a short synopsis of the most
important facts of the case.
on of the court. Your
facts which were analyzed by the court. Although other factual
details might be interesting, only
include them if they give the reader t
include the nature of the lawsuit and the parties in the lawsuit.
The goal in the Facts section is to

would understand the facts of the case.
3. Proc edu ral H istory: The Procedural History section is a
summary of previous
proceedings between the parties from the time the case was
initially filed to the present. This is
important because most reported cases are appellate cases in
which a previous decision was
rendered in a trial court. It is essential that you understand how
the case arrived in the court, the
opinion of which you are briefing. Indeed, in many case brief
assignments, you will brief an
Opinion of the United States Supreme Court; in those instances,
the case will likely have been in
several different courts previously.
that you understand that the losing party appeals to the next
level of court.
The D elahanty case is an example of a somewhat unusual case,
but the unusual nature of
the case is a good illustration of why the Procedural History of
the case is so important. The
civil lawsuit was filed by the Delahantys in federal court
(United States District Court in the
District of Columbia). Their case was dismissed and they
appealed to the next level of federal
court (the United States Court of Appeals for the District of
Columbia Circuit). That federal
appellate court needed to obtain the view of the court in the
applicable local jurisdiction (the
District of Columbia) on a specific legal question. In order to
obtain that view, the federal
about the opinion which was rendered by the local court, the
District of Columbia Court of

Appeals.
4. Issue(s): The issue should be a yes/no question which
identifies the specific question
the court must decide in order to rule in the case.
distributors of Saturday Night Specials strictly liable for
injuries arising from their criminal use
There may be more than one main issue that the court must
decide.
If there are multiple issues, the issues should be set forth in a
number f
etc.
5. H olding(s):The Holding section succinctly states how the
court answered the issues
presented. Typically it includes a yes/no answer followed by
the issue presented written in an
answer format. It includes the legal principle relied on by the
court. If there are multiple issues,
there must be a corresponding number of holdings.
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6. R easoning: This is a very important part of the brief. The
Reasoning section
describes why and how the court reached its holding in the case.
This may include an

application or revision of pre-existing legal principles, policy
reasons and/or negative effects
resulting from a different court ruling. If there are both a
majority and dissenting opinion issued
analyses. Likewise, if there is a concurring opinion, a brief
description should be included in an
additional subsection. If there are multiple issues, there must
be a corresponding number of sub-
sections within the Reasoning section.
7. D ecision: This section gives the Judgment rendered by the
court. Describe the final
it for additional proceedings?
8. C omments: Is there anything else that should be mentioned
about this case? Is it a
in the sense that the court significantly changed the law
concerned a particular
For example, in the D elahanty sample brief, a useful comment
would be that the case is a
good example of how appellate courts certify issues to other
courts in order to obtain the legal
opinion of the other court on a particular issue.

Foreword
by Davis Guggenheim, Academy Award-winning director
of the documentary "An Inconvenient Truth"
As a director and producer of both commercial and non-
commercial projects,
I find myself on both sides of the war that rages around
copyright and the
public domain. In my last movie, “An Inconvenient Truth,” we
had a terrible
time clearing footage of all kinds. Simply finding the source
and status of
archival footage nearly brought my production to its knees. We
faced
stressful and urgent questions like: Who owns this? Will anyone
who thinks
they own this sue me? Even though it was considered public
domain ten years
ago, is there a possibility someone might claim this? Will the
lawyers for the
production company and studio accept the conclusion I have
carefully drawn
and allow me to use it in the film? I have lost many shots and
sequences
because I wasn't able to answer these questions.
The worst example of this happened when I was
making a film called “The First Year,” a documentary
which followed five teachers through their
treacherous first year of teaching public school. In
the climactic scene, one of the teachers, who is
taking his kids on a field trip for the first time,

hears the song “Stairway to Heaven” by Led Zeppelin.
It is both funny and tragic when he announces to his
kids, “This is the greatest song ever written,” as he
cranks the volume in his rental van. He is possessed with joy,
expressing
himself for the first time to his students. They are simply bored.
Everything
in the movie leads up to this moment and when audiences see
this scene,
they laugh and cry at the same time because it is touching and
tragic. But
most audiences don’t get to see this scene in the film. On the
DVD, which is
still for sale, that scene has been omitted because I have not
been able to
secure the rights to “Stairway to Heaven.” Through archaic
loopholes I could
use the song in festival screenings and on PBS, but when it
came to any
commercial use I was forbidden to use it. Not because I
couldn’t afford to
license the song, but because I could never find the rights
holders or their
representatives (of which there are many, which is another sad
story).
Ten years ago, I would have used the song, citing fair use. Now
lawyers for
distributors are scared about the chance, just the chance, of a
claim against
the movie. The problems are twofold. The first is the
diminishing world of
fair use as the mainstream legal world interprets it. In real terms
this

means that now when I lift my camera and look through the
lens, there is
less and less that is free to use: do I have to clear that soda can,
that
poster, that car or that highrise? What happens to our culture
when some of
us can pay and others can’t?
The other disturbing thing is the uncertainty of it all. Even most
legal
experts who work on the issue have to roll the dice
trying to interpret where the current line of fair use is
drawn. You can feel the handwringing when we propose
even the most rock solid interpretation to an errors and
omissions lawyer. The truth is that most of us just don't
know. And that not knowing means that the most
stringent interpretation wins. No responsible lawyer
wants to expose his client to the possibility of a lawsuit,
even if it's only an outside chance.
And so, wonderful moments of magic are cut from
movies—simple ones and profound ones. But this doesn't have
to happen.
Creative Commons helps artists who want to protect their work
and to
clearly define the way in which their work can be shared. And
this
wonderful, funny and clever comic makes a very complex issue
simple for
people like me to understand. I keep a copy in my desk, for
when I get
confused.
Introduction

by Cory Doctorow, award-winning science fiction author
and co-editor of the blog Boing Boing
Who owns photons? When your camera opens its aperture and
greedily
gobbles all the light reflecting off the surfaces of buildings,
faces, t-shirts,
paintings, sculptures, movies, and photos, are you breaking the
law? Does
your camera’s mic infringe when it captures the perturbations
made by
speech, song and soundtrack?
If these seem like silly questions, blame the law, not the
questions.
Copyright, a system that is meant to promote creativity, has
been hijacked
by a few industrial players and perverted. Today, copyright is as
likely to
suppress new creativity as it is to protect it.
Documentary filmmakers have it tough. The job of a good
documentary is to
*document*: to set down on video the world as it
exists, to tell the story of the world, to lay bare
its bones and its deeds.
With every passing year, documenting the world
gets more fraught.
Everyone, it seems, has his hand out, asking for a
license to merely recount the truth: this billboard
stands over that city, this logo appears on that
man’s t-shirt, this TV program was playing when
this event took place.

Some of them don’t just want you to take a license. Some of
them don’t want
you to report on them at all.
What’s a filmmaker to do?
Before copyright, there was patronage. You were allowed to
make art if the
Pope or some duke could be convinced that you had a good
idea. This
generated some lovely ceilings and frescos, but it wasn’t
exactly democratic.
Copyright industrialized the practice. Now art could be made if
an artist
could convince a wealthy industrialist that the exclusive right to
market the
work was worth funding its production. This radically
decentralized the
decision-making process for art: there are lots more
industrialists than
Popes, after all.
Today, the industrialists have reinvented themselves as Popes
and dukes and
kings. If you’re signed to a big label—if you have the patronage
of a
king—that label will clear your way to using samples from the
other labels’
catalogs in your songs. If you’re an indie, forget about it.
If you’re a filmmaker working for a big
studio, you’ve got rabid packs of attack-

lawyers at your disposal, employed to go
forth and negotiate your licenses when you
need them. Or even when you don’t need
them: if you’re a studio lawyer, it makes
sense to act as though even the most casual or attenuated
reproduction
requires a license—that way, people will pay you for licenses to
your
employer’s works, too.
If you’re an indie, this leaves you out in the cold. You’re not on
the inside,
you don’t have white-shoe attorneys standing by to
negotiate your “use” of the logo on the shirt of a guy
caught on video in a riot.
This isn’t how copyright is supposed to work.
This isn’t how copyright works. If you’ve got lawyers on
your side and you're willing to fight, you’re likely to find
that most of the uses that someone wants you to pay for
are in fact permitted without payment or permission, under the
doctrine of
“Fair Use.” But chances are, if you can’t afford a license, you
can’t afford
the lawyer to prove that you don’t need to pay for the license.
And yet, at this moment, the cost of raw
materials of documentary making are in free-fall.
Last year’s editing suites are being replaced by
this year’s laptops—the $1500 laptop I’m typing
this on has more RAM, processor and hard-drive

than the $100,000 Avid suite I used to babysit
at a documentary film-house. Democracy Player
and Dabble, YouTube and Google Video, the Internet Archive
and Dijjer are
the leading edge of a movement to make sharing video free and
easy. Our
pockets bulge with devices that let us watch low-resolution,
short videos
wherever we are—the perfect small screen for the indie
documentary.
Copyright law might work well when it's practiced by corporate
attorneys
from Fortune 100 companies, but once it impinges on the
normal activity of
creative people documenting their world, it creates more
problems than it
solves.
This is a sensible book about a ridiculous subject. It’s an
example of the
principle it illustrates: that taking from the culture around us to
make new
things is what culture is all about, it's what culture is for.
Culture is that
which we use to communicate.
The comic form makes this issue into something less abstract,
more
concrete, and the Duke Public Domain folks who produced this
have not just
written a treatise on copyright, they’ve produced a loving
tribute to the
form of comics.

It’s a book whose time has come. Read it, share it. Get angry.
Do something.
Document your world.
Copyright © 2006, 2008 Keith Aoki, James Boyle, Jennifer
Jenkins
This work is made available under the terms of a
Creative Commons Attribution, Non-commercial, Share-alike
license.
http://creativecommons.org/licenses/by-nc-sa/2.5/
This license gives you important freedoms, including the right
to copy and distribute this book
noncommercially without permission or fee, so long as you
adhere to the terms described below.
Attribution-NonCommercial-ShareAlike 2.5
You are free:
to copy, distribute, display, and perform the work
to make derivative works
Under the following conditions:
Attribution. You must attribute the work as: Bound By Law
© 2006, 2008 Keith Aoki,
James Boyle, Jennifer Jenkins
Noncommercial. You may not use this work for commercial
purposes.
Share Alike. If you alter, transform, or build upon this work,
you may distribute the
resulting work only under a license identical to this one.

For any reuse or distribution, you must make clear to others the
license terms of this work.
Any of these conditions can be waived if you get permission
from the copyright holder.
Your fair use and other rights are in no way affected by the
above.
Duke University Press Cataloging-in-Publication Data
Aoki, Keith, 1955–
Bound by law? : tales from the public domain / Keith Aoki,
James Boyle, and Jennifer Jenkins
— New expanded ed.
p. cm. —
ISBN 978-0-8223-4418-6 (pbk. : alk. paper)
1. Fair use (Copyright) — United States — Caricatures and
cartoons. 2. Public domain (Copyright
law) — United States — Caricatures and cartoons. 3. Copyright
— United States — Caricatures
and cartoons. I. Boyle, James, 1959–. II. Jenkins, Jennifer.
KF3050 .A54 2008 346.730482 — dc22

Intellectual Property Law
Permissions

Introduction
When creating content incorporating other peoples’ work, it is
crucial to ensure that you have
all the rights necessary to use the content for the purposes you
desire. Getting permission is
the obvious way to secure your position, but is it always
necessary? There are defenses that
can make permissions superfluous, but will distributors and
employers accept that risk? Will
you? This activity involves reading a comic book that
chronicles the adventures of a
documentary filmmaker trying to navigate the complicated
tangle of copyright laws in order to
make a movie about New York City. This assignment will open
your eyes to the possibilities.
Requirements/Deliverables Due
A. Listen to the Bound by Law author interview.
B. Read the comic book Bound by Law
https://web.law.duke.edu/cspd/comics/
digital (80+ pages) and answer questions about the content on
the 5-page worksheet in this
document. If the link doesn’t work, please search “bound by law
comic” and you will get to the
right page.
C. Upload your completed worksheet to FSO.
Grading - 2%
This activity will earn a 100-75-0 as per the
Rubric.

1
http://www.ibiblio.org/wunc_archives/sot/audioarchive//sot0426
06b.mp3
http://web.law.duke.edu/cspd/comics/digital
https://web.law.duke.edu/cspd/comics/digital
https://law.duke.edu/cspd/comics/digital/
RUBRIC
This activity achieves the following course objectives:
• Identify protectable interests and rights holders
• Discern lawful use of others’ intellectual property
• Understand how intellectual property laws and personality
interests can be
violated as well as the potential penalties
• Assess content utilization from a legal and community
perspective
• Exploit rights through use and licensing
2
Criteria 100 75 0
Worksheet
All questions answered, all
but 1-2 answered correctly or

mostly correctly
1-2 questions were skipped
No questions were skipped
but more than 2 were
incomplete or incorrect
More than 2 questions were
skipped
OBJECTIVES
http://web.law.duke.edu/cspd/comics/digital.php
Worksheet page 1
3
Question Response
Documentary films capture culture and society, including
fragments of copyrighted
images, music, art and the like. What are some examples of
things Akiko has
captured on film that might require a license or clearance?
Referring to the chart on pages 10-11, what works are in the
public domain?
If Akiko wanted to show someone singing a song published
between 1964 and
1977, what would she need to know to determine whether the
song is in the public

domain and free for use?
What is accidental capture?
Worksheet page 2
4
Question Response
How much did Matt Groening want to allow documentary
filmmaker Jon Else to
show 4.5 seconds of “The Simpsons” that was accidentally
captured in the
background of one of his scenes? Does this seem reasonable to
you? Do you think
Else should have used it without a license and risked a lawsuit,
given his strong
argument for fair use?
What are three options for using background music in a
documentary?
Why was the civil rights documentary “Eyes on the Prize” taken
out of circulation?
Worksheet page 3

5
Question Response
What are the four factors to be considered in a fair use analysis?
What are some examples of uses that would be considered “fair
use”?
Reviewing the cases discussed on pages 37-43, what are some
“lessons learned”
about how fair use works in the real world?
Worksheet page 4
6
Question Response
When might a trademark be used, lawfully, without permission?
When might a person’s picture be used, lawfully, without
permission?
How can a content creator manage the risk of rights clearance?
Read the question Akiko asks on page 57. What do you think is
the answer?
Why?
ResponseDocumentary films capture culture and society
including fragments of copyrighted images music art and the

like What are some examples of things Akiko has captured on
film that might require a license or clearance:
ResponseReferring to the chart on pages 1011 what works are in
the public domain: ResponseIf Akiko wanted to show someone
singing a song published between 1964 and 1977 what would
she need to know to determine whether the song is in the public
domain and free for use: ResponseWhat is accidental capture:
ResponseHow much did Matt Groening want to allow
documentary filmmaker Jon Else to show 45 seconds of The
Simpsons that was accidentally captured in the background of
one of his scenes Does this seem reasonable to you Do you
think Else should have used it without a license and risked a
lawsuit given his strong argument for fair use: ResponseWhat
are three options for using background music in a documentary:
ResponseWhy was the civil rights documentary Eyes on the
Prize taken out of circulation: ResponseWhat are the four
factors to be considered in a fair use analysis: ResponseWhat
are some examples of uses that would be considered fair use:
ResponseReviewing the cases discussed on pages 3743 what are
some lessons learned about how fair use works in the real
world: ResponseWhen might a trademark be used lawfully
without permission: ResponseWhen might a persons picture be
used lawfully without permission: ResponseHow can a content
creator manage the risk of rights clearance: ResponseRead the
question Akiko asks on page 57 What do you think is the answer
Why:
Case Citation: Delahanty v. Hinckley, 564 A.2d 758 (D.C.
1989).
Parties: Thomas and Jean Delahanty, Plaintiffs / Appellants
John Hinckley, Defendant / Appellee

Facts: Thomas Delahanty was seriously injured when John
Hinckley attempted to assassinate
President Ronald Reagan. John Hinckley used a “Saturday
Night Special” in the assassination
attempt that was manufactured by R. G. Industries, a subsidiary
of Roehm.
Procedural History: Appellants filed suit in U.S. District Court
for the District of Columbia
against John Hinkley, R.G. Industries, the gun manufacturer,
Roehm, the manufacturer’s foreign
parent company, and individual officers of Roehm, for injuries
Appellant Thomas Delahanty
suffered when Hinkley attempted to assassinate President
Ronald Reagan. The District Court
dismissed appellants’ complaint against R.G. Industries, Roehm,
and individual officers of
Roehm for failure to state a claim. On appeal, the U.S. Court of
Appeals for the District of
Columbia Circuit certified the question of whether, in the
District of Columbia, “manufacturers
and distributors of Saturday Night Specials may be strictly
liable for injuries arising from these
guns’ criminal use” to the District of Columbia Court of
Appeals.
Issues:
Issue 1: Whether, in the District of Columbia, manufacturers
and distributors of Saturday Night
Specials may be held strictly liable for injuries arising from
their criminal use?
Issue 2: Whether established theories of tort law in the District

of Columbia provide a cause of
action against gun manufacturers and distributors for injuries
arising from the guns’ criminal
uses?
Holdings:
Issue 1: No. Manufacturers and distributors of Saturday Night
Specials are not strictly liable for
injuries arising from these guns’ criminal use.
Issue 2: No. Established theories of tort law in the District of
Columbia do not provide a cause
of action against gun manufacturers and distributors for injuries
arising from the guns’ criminal
uses.
Reasoning: Appellants advanced the following three theories in
support of their position:
Issue 1:
a. Strict liability for sale of defective product
The court rejected this theory of liability because appellants put
on no evidence that the weapon
Hinkley purchased and later used in the assassination attempt
was in any way defective. Rather,
appellants argued that the manufacturers had a duty to warn of
the dangers of criminal misuse of
the gun. The court found this argument unpersuasive, pointing
out that a manufacturer has no

duty to warn because the dangerous nature of guns self-evident.
b. Strict liability for abnormally dangerous activity
Appellants argued that the manufacturer should be held liable
because the Saturday Night
Special is “inherently and abnormally dangerous with no social
value. The “abnormally
dangerous activity” doctrine had never been applied to gun
manufacturers in the District of
Columbia. The Court rejected this application of the doctrine,
since selling weapons is not an
abnormally dangerous activity “in and of itself.” In response to
appellants’ reliance on Kelly v.
R.G. Industries, 304 Md. 124, 497 A.2d 1143 (1985), the court
stated that it is not just cheap
guns that may potentially by used to commit crimes, and that
the Maryland legislature had
specifically overridden the Kelly decision.
Issue 2:
While the general rule is that no tort liability exists for harm
resulting from the criminal acts of
third parties, an exception sometimes comes in to play when a
special relationship exists between
parties. Examples of such “special” relationships include
landlord / tenant, hospital / patient, and
school / student relationships. The court declined to extend this
special relationship status to gun
manufacturers and sellers / gun purchaser, as Appellants neither
argued that any special
relationship existed, nor suggested any way that gun
manufacturers could prevent their gun
purchasers from misusing the purchased gun for criminal acts.

Decision:
Affirmed. The court answered the certified question from the
U.S. Court of Appeals for the
District of Columbia. Traditional tort theories, such as
negligence and strict liability, provide no
basis for holding a gun manufacturer liable for injuries caused
by a buyer of the gun to a third
party.
Comment: This case gives a good example of how appellate
courts may certify issues to other
courts (either lower or in different jurisdictions) for opinions.
In this case, the U.S. Circuit Court
of Appeals for the District of Columbia (federal appellate court)
certified the issue to a
Washington D.C. court because it presented a question of local
law, not federal law.
Page
1 of 1 DOCUMENT
UNIVERSITY OF TEXAS AT ARLINGTON, PETITIONER, v.
SANDRA WILLIAMS AND STEVE WILLIAMS,
RESPONDENTS
NO. 13-0338
SUPREME COURT OF TEXAS

459 S.W.3d 48; 2015 Tex. LEXIS 268; 58 Tex. Sup. J. 514
October 9, 2014, Argued
March 20, 2015, Opinion Delivered
PRIOR HISTORY: [**1] ON PETITION FOR REVIEW FROM
THE COURT OF APPEALS FOR THE SECOND DISTRICT OF
TEXAS.
Univ. of Tex. at Arlington v. Williams, 455 S.W.3d 640, 2013
Tex. App. LEXIS 3985 (Tex. App. Fort Worth, Mar. 28, 2013)
CASE SUMMARY:
OVERVIEW: HOLDINGS: [1]-The recreational use statute,
Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, did not
bar the spectator's underlying premises liability action after she
fell at a college stadium because the activity of being a
spectator at a competitive-sports event was too dissimilar to the
others on the list under Tex. Civ. Prac. & Rem. Code Ann. §
75.001(3), to be included and thus, it was not "recreation" under
the statute; [2]-Although soccer might be played in an open-air
stadium, a soccer game, as ordinarily understood, was not
associated with nature in the sense indicated by the statutory
definition of "recreation." Because the outdoors and nature were
not integral to the enjoyment of this activity and because the
activity was unlike the others the statute uses to define
"recreation," § 75.001(3)(L), the so-called "catch-all", did not
catch that activity.
OUTCOME: Judgment affirmed.
CORE TERMS: recreational use, outdoor, sport, recreation,
stadium, enjoying, plurality, recreational activity, competitive,
soccer, spectator, immunity, daughter's, recreational,

playground, enjoyment, catchall, playing, team, spectating,
swimming, gate, Tex Gen Laws, camping, outdoor activities,
landowner, boating, driving, governmental unit, fishing
LexisNexis(R) Headnotes
Torts > Premises Liability & Property > General Premises
Liability > Premises > Recreational Facilities > Recreational
Use Statutes
[HN1] The recreational use statute, Tex. Civ. Prac. & Rem.
Code Ann. §§ 75.001-75.007, provides limited protection to
landowners and occupants who open their property for public
recreational purposes. When applicable, the statute effectively
immunizes the landowner or occupant from ordinary negligence
claims associated with the property's recreational use by
requiring the plaintiff to establish gross negligence, Tex. Civ.
Prac. & Rem. Code Ann. § 75.002(c)-(d), (f). The statute,
however, only applies to certain recreational uses that it defines
through a list of activities it considers to be recreation, Tex.
Civ. Prac. & Rem. Code Ann. § 75.001(3).
Use Statutes
[HN2] Tex. Civ. Prac. & Rem. Code Ann. §§ 75.003(g) and
101.058 provide that, to the extent the recreational use statute,
Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, applies, it
controls over the Tort Claims Act.
Use Statutes
[HN3] When applicable, the recreational use statute limits the
liability of landowners by requiring proof of their gross
negligence, malicious intent, or bad faith in the premises
liability case, Tex. Civ. Prac. & Rem. Code Ann. § 75.002(d).

Civil Procedure > Appeals > Appellate Jurisdiction >
Interlocutory Orders
[HN4] Interlocutory appeals are generally final in the court of
appeals unless there is a dissent in that court or a conflict with
another decision, Tex. Gov't Code Ann. §§ 22.001(a)(2),
22.225(b)(3), (c).
Governments > Courts > Judicial Precedents
[HN5] Decisions conflict when there is an inconsistency in the
respective decisions that should be clarified to remove
unnecessary uncertainty in the law and unfairness to litigants,
Tex. Gov't Code Ann. § 22.225(e).
Use Statutes
[HN6] The recreational use statute, Tex. Civ. Prac. & Rem.
Code Ann. §§ 75.001-75.007, protects landowners who open
property for recreational purposes, limiting their liability to the
recreational user. The statute accomplishes this by elevating the
burden of proof in premises liability cases in which it applies.
The statute effectively requires either gross negligence or an
intent to injure. The statute, however, only applies to
recreational uses, which the statute defines through a non-
exclusive list of included activities.
Use Statutes
[HN7] See Tex. Civ. Prac. & Rem. Code Ann. § 75.001(3).
Governments > Legislation > Interpretation
[HN8] General terms and phrases should be limited to matters
similar in type to those specifically enumerated. When words of
a general nature are used in connection with the designation of

particular objects or classes of persons or things, the meaning
of the general words will be restricted to the particular
designation. In a similar vein, context is fundamental to
understanding the use of language and that meaning cannot
ordinarily be drawn from isolated words or phrases but must
typically be determined from statutory context. Courts are also
typically inclined to apply a term's common meaning unless a
contrary intention is apparent from the statute's context.
Use Statutes
[HN9] The Legislature did not provide that the recreational use
statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007,
was to cover recreation generally but rather defined the term
through the list of included activities under Tex. Civ. Prac. &
Rem. Code Ann. § 75.001(3). Although the Legislature has
broadened the statute's reach over the years, it has not made it
generally applicable to all refreshing, relaxing, or enjoyable
activities. "Recreation" under the statute has remained more
specific than the word's ordinary meaning.
Use Statutes
[HN10] Under the recreational use statute, Tex. Civ. Prac. &
Rem. Code Ann. §§ 75.001-75.007, there was nothing illogical
about the Legislature's decision to include bird-watching as a
covered recreational activity, but not spectating at outdoor
sports stadiums. A landowner who allows a person to bird-watch
opens his property for use in its natural state. The landowner
does not build a stadium or otherwise make improvements for
that purpose as in the case of organized-sporting activity.

Use Statutes
[HN11] If the Legislature intended for the recreational use
statute, Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, to
apply generally to competitive sports and their spectators, the
catchall provision is a curious choice as it apparently applies to
some competitions but not others, that is, those played in open-
air stadiums instead of enclosed facilities. It is apparent from
the statute's development that Tex. Civ. Prac. & Rem. Code
Ann. § 75.001(3)(L) "catchall" was not intended simply to
incorporate all other outdoor activities into the statute. Had that
been the Legislature's intent, it would not have continued to add
specific outdoor activities after adding the "catchall" in 1997.
But § 75.001(3)(L) must catch some unlisted activities;
otherwise, it would have no purpose.
Use Statutes
[HN12] The meaning of individual words may be ascertained by
reference to words associated with them in the statute. Where
two or more words of analogous meaning, such as "nature" and
"the outdoors", are employed together in a statute, they are
understood to be used in their cognate sense, to express the
same relations and give color and expression to each other.
Because of its association with nature, "enjoying the outdoors"
cannot include every enjoyable outside activity. It must also be
associated with nature, or "that part of the physical world that is
removed from human habitation." In this sense, the "outdoors"
is not integral to the enjoyment of competitive sports because
the focus of that activity is the competition itself, not where the
competition takes place.

Use Statutes
[HN13] Although soccer may be played in an open-air stadium,
a soccer game, as ordinarily understood, is not associated with
nature in the sense indicated by the statutory definition of
"recreation." Because the outdoors and nature are not integral to
the enjoyment of this activity and because the activity is unlike
the others the statute uses to define "recreation," Tex. Civ. Prac.
& Rem. Code Ann. § 75.001(3)(L), the so-called "catch-all",
does not catch this activity.
Use Statutes
[HN14] The Texas statute mentions only "water sports" among
its list of recreational activities, Tex. Civ. Prac. & Rem. Code
Ann. § 75.001(3)(K). The only other part of the statute that
arguably associates recreational activity with any type of
competitive sport is Tex. Civ. Prac. & Rem. Code Ann. §
75.002(e), which adds adds certain hockey and skating
activities, as well as soap box derby and paintball uses as
recreational activities if the activities take place on premises
owned, operated, or maintained by a governmental unit.
Use Statutes
[HN15] See Tex. Civ. Prac. & Rem. Code Ann. § 75.002(e).
Use Statutes
[HN16] None of the amendments in the recreational use statute,
Tex. Civ. Prac. & Rem. Code Ann. §§ 75.001-75.007, suggest
that the Legislature intended to include competitive sports and
spectating as recreational activities under the statute.

COUNSEL: Amicus Curiae for Texas City Attorneys
Association, Texas Municipal League: Laura F. Mueller, Texas
Municipal League, Austin, TX.
For University of Texas at Arlington, Petitioner: Arthur
Cleveland D'Andrea, Assistant Solicitor General, Austin, TX;
Daniel T. Hodge, First Assistant Attorney General, Austin, TX;
Dustin Mark Howell, Office of the Attorney General of Texas,
Austin, TX; Greg W. Abbott, Attorney General of Texas,
Austin, TX; Jonathan F. Mitchell, Solicitor General, Office of
the Attorney General, Austin, TX; Kevin Desiderio Molina,
Attorney General's Office, Tort Litigation Division, Austin, TX.
For Sandra Williams, Steve Williams, Respondent: Christopher
J. Harris, David Lee Cook, Kimberly Fitzpatrick, Harris Cook
LLP, Arlington, TX.
JUDGES: JUSTICE DEVINE announced the judgment of the
Court and delivered an opinion, in which CHIEF JUSTICE
HECHT, JUSTICE GREEN, and JUSTICE LEHRMANN joined.
JUSTICE GUZMAN filed a concurring opinion, in which
JUSTICE WILLETT joined. JUSTICE BOYD filed a concurring
opinion. JUSTICE JOHNSON filed an opinion, concurring in
part and dissenting in part, in which JUSTICE BROWN joined.
OPINION BY: John P. Devine
OPINION
[*49] [HN1] The recreational use statute provides limited
protection to landowners and occupants who open their property
for public recreational purposes. See Tex. Civ. Prac. & Rem.
Code §§ 75.001-.007 (the recreational use statute). When
applicable, the statute effectively immunizes the landowner or
occupant from ordinary negligence claims associated with the

property's recreational use by requiring the plaintiff to establish
gross negligence. See id. § 75.002(c)-(d), (f). The statute,
however, only applies to certain recreational uses that it defines
through a list of activities it considers to be "recreation." Id. §
75.001(3).
The question here is whether the statute's recreational-activity
list reasonably includes a spectator at a competitive-sports
event. The court of appeals [**2] concluded that this activity
was too dissimilar to the others on the list to be included and
accordingly held it was not "recreation" under the statute.455
S.W.3d 640, 648, 2013 Tex. App. LEXIS 3985 (Tex. App.--Fort
Worth 2013) (mem. op.). We agree. Although members of this
Court have different views on the nature of the injury-producing
activity in this case, we agree that the recreational use statute
does not bar the underlying action. The court of appeals'
judgment is accordingly affirmed.
I
Sandra Williams and her husband sued the University of Texas
at Arlington (UTA) for injuries Williams sustained when she
fell at Maverick Stadium. The stadium is a 12,500 seat,
multipurpose facility located on the western edge of the UTA
campus. It served as UTA's football stadium through the 1985
season, after which the university gave up its football program.
The stadium is now used by the university's track-and-field
teams and is also leased to the Arlington Independent School
District for football games and other events. The Williamses
were at the stadium to watch their daughter's high school soccer
game.
[*50] After the game, Williams walked down the stadium stairs
to wait for her daughter, stopping at a guard rail that separates
the stands from the playing field. The [**3] stands are elevated
above the field, but a gate in the railing provides access to the
field when portable stairs are in place. On this occasion, the
stairs were not there, and the gate was closed.
The gate's latch had previously broken off, but the gate was

secured with a chain and padlock. While waiting for her
daughter, Williams leaned against this gate, which unexpectedly
opened. Williams fell five feet to the artificial-turf field below,
injuring a rib and her left arm.
In her premises liability suit against the university, Williams
alleged that UTA was negligent and grossly negligent in
securing the gate with a chain and lock it knew to be
inadequate, and in failing to maintain the gate and repair its
broken latch. UTA responded with a general denial, a plea to
the jurisdiction, and a motion to dismiss, asserting sovereign
immunity and the recreational use statute. See Tex. Civ. Prac. &
Rem. Code §§ 75.003(g), 101.058 ( [HN2] providing that to the
extent the recreational use statute applies, it controls over the
Tort Claims Act).
Williams argued that the recreational use statute did not apply
because she was not engaged in a recreational activity at the
time of the accident. In the alternative, she argued [**4] that, if
the statute applied, UTA's plea and motion to dismiss should
still be denied because she had raised a fact question regarding
UTA's gross negligence. [HN3] When applicable, the
recreational use statute limits the liability of landowners by
requiring proof of their gross negligence, malicious intent, or
bad faith in the premises liability case. Tex. Civ. Prac. & Rem.
Code § 75.002(d).
The trial court denied UTA's plea and motion, apparently
agreeing with Williams' arguments. The court of appeals
affirmed.455 S.W.3d 642, 2013 Tex. App. LEXIS 3985. UTA
appealed. We granted UTA's petition to consider whether
attending a soccer game as a spectator is a recreational activity
under the recreational use statute.
II
We begin, however, with our own jurisdiction, which is limited
when the appeal is from an interlocutory order, such as the trial
court's order here denying UTA's plea to the jurisdiction. UTA,
a state university, argues that we have jurisdiction under section

51.014(a)(8) of the Civil Practice and Remedies Code, which
authorizes an interlocutory appeal from the grant or denial of "a
plea to the jurisdiction by a governmental unit" such as UTA.
[HN4] Interlocutory appeals, however, are generally final in the
court of appeals unless there is a dissent in that court or a
conflict with another decision. [**5]See Stephen F. Austin State
Univ. v. Flynn, 228 S.W.3d 653, 656 (Tex. 2007); see also Tex.
Gov'T Code §§ 22.001(a)(2), 22.225(b)(3), (c).
UTA argues that the court of appeals' decision here conflicts
with one of our prior decisions. See City of Bellmead v. Torres,
89 S.W.3d 611 (Tex. 2002). In City of Bellmead, we concluded
that the recreational use statute applied to the user of
playground equipment in a city park because the activity was of
a type that the Legislature intended to include as recreation. Id.
at 615. UTA argues that the users of stadiums and sports fields
are similarly engaged in recreation under the statute and that the
court of appeals' determination to the contrary is in conflict
with City of Bellmead. UTA further points out that the court of
appeals' decision here conflicts with another court of appeals'
decision, which applied the recreational use statute to a
spectator at a baseball game. See Sam Houston State [*51]
Univ. v. Anderson, No. 10-07-00403-CV, 2008 Tex. App.
LEXIS 8614, 2008 WL 4901233, at *3 (Tex. App.--Waco Nov.
12, 2008, no pet.) (mem. op.) (concluding that statute applied to
a spectator whose arm was broken when the bleachers collapsed
during a baseball game).
[HN5] Decisions conflict when there is an "inconsistency in
[the] respective decisions that should be clarified to remove
unnecessary uncertainty in the law and unfairness to litigants."
Tex. Gov'T Code § 22.225(e). The conflict here satisfies that
definition and thus supports our [**6] jurisdiction. We turn
then to the recreational use statute and the question presented:
whether a spectator at a competitive-sports event is engaged in
"recreation" under the recreational use statute.
III

[HN6] The recreational use statute protects landowners who
open property for recreational purposes, limiting their liability
to the recreational user. State v. Shumake, 199 S.W.3d 279, 284
(Tex. 2006). The statute accomplishes this by elevating the
burden of proof in premises liability cases in which it applies.
See Stephen F. Austin State Univ., 228 S.W.3d at 659 (noting
that the statute "effectively requires . . . either gross negligence
or an intent to injure"). The statute, however, only applies to
recreational uses, which the statute defines through a non-
exclusive list of included activities. Under the statute,
[HN7] "Recreation" means an activity such as:
(A) hunting;
(B) fishing;
(C) swimming;
(D) boating;
(E) camping;
(F) picnicking;
(G) hiking;
(H) pleasure driving, including off-road motorcycling and off-
road automobile driving and the use of all-terrain vehicles;
(I) nature study, including bird-watching;
(J) cave exploration;
(K) waterskiing and other water sports;
(L) any other activity associated with enjoying nature or the
outdoors;
(M) bicycling and mountain biking;
(N) disc golf;
(O) on-leash [**7] and off-leash walking of dogs; or
(P) radio control flying and related activities.
Tex. Civ. Prac. & Rem. Code § 75.001(3) (emphasis added).
The issue in this case is whether the statutory term "recreation"
reasonably includes competitive sports and their spectators. We
did not answer that question in City of Bellmead v. Torres. See
89 S.W.3d at 614 (declining to decide whether "softball is . . .

recreation within the meaning of the Statute"). We did,
however, apply subpart (L) in that case to enlarge the statutory
list to include an omitted activity. Id. at 615. Because
competitive team sports--like soccer--and spectating are also
omitted from the recreational-activities list, the focus again is
on subpart (L)'s "any other activity associated with enjoying
nature or the outdoors."
As mentioned, we did not decide whether playing or watching
softball was "recreation" in City of Bellmead. The court of
appeals there, however, considered the issue and decided it was
not under the statute. Torres v. City of Bellmead, 40 S.W.3d
662, 664-65 (Tex. App.--Waco 2001), rev'd on other grounds,
89 S.W.3d 611 (Tex. 2002). Although Torres had gone to the
city's softball complex to play softball, we declined to consider
her purpose for [*52] entering the park, reasoning that her
purpose for entry did not control the statute's application. City
of Bellmead, 89 S.W.3d at 614 [**8] . Instead of softball, we
focused on Torres' use of a swing set in the park because that
was the activity that led to her injury. Id. In reversing the court
of appeals, we reasoned that the use of playground equipment,
although not specifically included in the statutory list as a
recreational activity, was nevertheless covered as "the type of
activity 'associated with enjoying . . . the outdoors'" under
subpart (L). Id. at 615 (quoting Tex. Civ. Prac. & Rem. Code §
75.001(3)(L)).
UTA argues that Williams was also engaged in recreation at the
time of her accident because her attendance at the soccer game
was similarly an "activity associated with enjoying nature or the
outdoors." Tex. Civ. Prac. & Rem. Code § 75.001(3)(L). UTA
describes subpart (L) as a "broad catchall provision" sufficient
to include spectators in stadiums who watch competitive-sports
events.
Williams responds that subpart (L) is not so broad. She argues
that the meaning of "any other activity associated with enjoying
nature or the outdoors" is informed by the other listed activities
and that none of these are similar to watching competitive

sports at a large, multipurpose stadium. Underpinning Williams'
argument is the principle of ejusdem generis.
That principle is a familiar canon of statutory construction,
which provides that [HN8] general terms and phrases should be
limited to matters similar in type to those specifically
enumerated. City of Houston v. Bates, 406 S.W.3d 539, 545
(Tex. 2013); see also Hilco Elec. Coop. v. Midlothian Butane
Gas Co., 111 S.W.3d 75, 81 (Tex. 2003) (noting that "when
words of a general nature are used in connection with the
designation of particular objects [**9] or classes of persons or
things, the meaning of the general words will be restricted to
the particular designation"). In a similar vein, we have noted
that context is fundamental to understanding the use of language
and that meaning cannot ordinarily be drawn from isolated
words or phrases but must typically be determined from
statutory context. TGS-NOPEC Geophysical Co. v. Combs, 340
S.W.3d 432, 439 (Tex. 2011).
We are also "typically inclined to apply a term's common
meaning [unless] a contrary intention is apparent from the
statute's context." Bates, 406 S.W.3d at 544. Were we to apply
recreation's ordinary meaning here, we would unquestionably
include competitive team sports and spectators within its scope.
See, e.g., Webster'S Ninth New Collegiate Dictionary 985
(1984) (defining "recreation" generally as refreshment from
work or a diversion; in other words, something done to relax or
have fun). But [HN9] the Legislature did not provide that the
statute was to cover recreation generally but rather defined the
term through section 75.001(3)'s list of included activities. And
although the Legislature has broadened the statute's reach over
the years, it has not made it generally applicable to all
refreshing, relaxing, or enjoyable activities. "Recreation" under
the statute has remained more specific [**10] than the word's
ordinary meaning.
When first enacted in 1965, the Legislature limited the statute
to hunting, fishing, or camping on private property.1 Over the
last fifty years, the Legislature has added to the recreational-

activities list, but as a class these activities have generally
remained consistent. For example, the list [*53] was enlarged
in 1981 to include "activities such as hunting, fishing,
swimming, boating, camping, picnicking, hiking, pleasure
driving, nature study, water skiing and water sports."2 An
accompanying bill analysis explained that the statute's "original
purpose" had been "to keep private land open for hunting,
fishing, and camping" but that "many other recreational
activities [had] gained popularity" since the law's original
enactment, "such as water skiing and cross-country hiking,
which require wide open spaces or lakes and streams that may
not be available in public parks or preserves near urban
centers."3 The analysis concluded that expanding the list of
activities "would encourage owners to open more land for such
uses."4
1 See Act of May 29, 1965, 59th Leg., R.S., ch. 677, § 1, 1965
Tex. Gen. Laws 1551 (protecting "any owner, lessee or
occupant of real property giv[ing] permission [**11] to another
to enter the premises for purposes of hunting, fishing and/or
camping").
2 See Act of May 30, 1981, 67th Leg., R.S., ch. 349, § 2, sec.
6(b), 1981 Tex. Gen. Laws 934.
3 House Study Group, Bill Analysis, Tex. H.B. 749, 67th Leg.,
R.S. (1981).
4 Id.
For the next fifteen years, the recreational-activities list
remained relatively unchanged. During this period, the statute
was recodified as chapter 75 of the Civil Practice and Remedies
Code,5 and in 1995 it was amended to extend its protection to
publicly held land.6

5 Act of May 17, 1985, 69th Leg., R.S., ch. 959, § 1, sec.
75.001-.003, 1985 Tex. Gen. Laws 3242, 3299.
6 Act of May 26, 1995, 74th Leg., R.S., ch. 520, § 2, 1995 Tex.
Gen. Laws 3276; see also Tex. Civ. Prac. & Rem. Code §
75.003(e) (noting chapter 75's general application to the
government); Shumake, 199 S.W.3d at 284 (noting statute's
application to both public and private land).
What UTA refers to as the "catchall" provision was added in
1997.7 The recreational-activities list was amended that year to
include "bird watching and any other activity associated with
enjoying nature or the outdoors."8 Bird-watching was added to
subpart (I)'s nature-study provision, while the "catchall" was
added at the list's end as subpart (L). See Tex. Civ. Prac. &
Rem. Code [**12] § 75.001(3)(I), (L). In 2005, more activities
were added.9 Bicycling and mountain biking, disc golf, and dog
walking joined the list, following the "catchall" provision as
subparts (M), (N), and (O). See id. § 75.001(3)(M)-(O). Off-
road motorcycling, off-road automobile driving, and the use of
all-terrain vehicles were also added that year, grouped together
with an existing subpart that identified pleasure driving as a
recreational activity. See id. § 75.001(3)(H). Two years later,
radio controlled flying and related activities were added.10 See
id. § 75.001(3)(P).
7 Act of April 24, 1997, 75th Leg., R.S., ch. 56, § 1, 1997 Tex.
Gen. Laws 123, 124.
8 See House Comm. on Civil Practices, Bill Analysis, Tex. H.B.
2664, 75th Leg., R.S. (1997).
9 Act of May 27, 2005, 79th Leg., R.S., ch. 932, § 1, 2005 Tex.

Gen. Laws 3178.
10 Act of May 23, 2007, 80th Leg., R.S., ch. 659, § 1, 2007
Tex. Gen. Laws 1235.
Justice Johnson argues that the 1997 amendments, which added
both bird-watching and the catchall provision to the statute's
recreational-activities list, enlarged the statute's reach to
outdoor sports and spectating because each is an "activity
associated with enjoying nature or the outdoors." S.W.3d at
(Johnson, J., concurring and dissenting) (quoting Tex. Civ.
Prac. & Rem. Code § 75.001(3)(L)). This amendment, [**13]
according to JUSTICE JOHNSON's writing, expanded statutory
"recreation" to include enjoyable outdoor activities, irrespective
of their connection to the more specific activities listed in the
statute. Principles of ejusdem generis, however, counsel that a
general or [*54] broad provision included within a more
specific list should be read in context and limited to matters
similar in type to those specifically enumerated. Bates, 406
S.W.3d at 545. Although Justice Johnson's writing correctly
observes that the statute's list of recreational activities is non-
exclusive, he nevertheless reads the statute's "catchall"
provision as far too inclusive. Subpart (L) does not "catch" an
activity simply because it occurs outside.
Justice Johnson further finds it illogical that …
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of the rules of grammar
usage, punctuation and
spelling, with a few minor
errors. Headings are used
and correspond to the
required elements of the
case brief.
Developing
Paper contains several
grammatical, punctuation,
and/or spelling errors.
Language lacks clarity or
includes some use of
jargon and /or
conversational tone. Some
headings are missing or fail
to correspond to the
required elements of the
case brief.
Beginning
Paper contains numerous
grammatical, punctuation,
and spelling errors.
Language uses jargon or
conversational tone; OR
brief fails to use Headings.

Did not attempt
Citation of Sources
10 % Proper usage of the
BlueBook citation style.
Exemplary
Student accurately quotes,
paraphrases, and cites
information in ways that
are true to the original
context with no errors.
Accomplished
Student quotes,
paraphrases and cites
information correctly and
consistently, using
information in ways that
are true to the original
context, with minimal
errors.
Developing
Student quotes,
information mostly
correctly and consistently,

in ways that are largely
true to the original context.
Beginning
Student quotes,
information but may have
many errors of use the
information out of context.
Did not attempt
Assignment Instructions
Brief the case University of Texas at Arlington v. Williams, 459
S.W. 3d 48 (Tex. 2015) found in the Resources section of the
class and attached to this Assignment and labeled as
"Williamscase.docx"
Please remember to you the approved case brief format that
includes the following parts: (1) Facts, (2) Procedural History,
(3) Issues Statements, (4) Holdings, (5) Reasoning, and (6)
Decision.
Case briefs are used to highlight the key information contained
within a case for use within the legal community as court cases
can be quite lengthy.
When writing case briefs, all information must be properly
cited. Make sure you are not copying and pasting from your
source. Most of the material should be paraphrased; quotations
should make up no more than 10% of the brief. Note: since the

purpose to is highlight and summarize key information, merely
copying and pasting from the case does not accomplish this
goal. You must summarize the facts in your own words, using
quotations sparingly.
Please take a look at the three handouts that I have attached
here.
The one handout outlines how to brief a case with a detailed
explanation of each part of the case brief. Another handout
outlines how I will be grading these case briefs. The third
handout provides an example of a properly done case brief. If
you would like to read the case briefed in the model case, please
find the case on Lexis at Delanhanty v. Hickley, 564 A.2d 758
(D.C. 1989).
Legal case names should be done in standard “Blue Book”
format. Example:
York v. Smith, 65 U.S. 294 (1995). For further information see
http://www.law.cornell.edu/citation and look under the “How to
Cite” section. Bluebook citation information is also found in the
course materials and announcement sections of the class.
Your brief should be 2 pages in length and in the approved
format.

1 H ow to B r ief a C ase P r epa r ed for t.docx

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