A Washington state appeals court has affirmed a grant of summary judgment to Washington State University (WSU) in a case in which a former walk-on quarterback sued the school for negligence after he was assaulted in the football team locker room.
Plaintiff Dominic Rockey alleged that he was assaulted on October 1, 2013 because he failed to adequately perform a drill called up-downs. Allegedly, Rockey was unable to do the exercise correctly because of an ankle injury. This led the coaches to assign additional drills for the entire team.
Upset, one of Rockey’s teammates, Cougar defensive lineman Emmit Su’a-Kalio, assaulted him, breaking his jaw in two places, shattering a wisdom tooth, and chipping a molar. Rockey ultimately needed surgery, which left his jaw wired shut and ended his football career, according to the complaint.
Rockey sued WSU under theories of negligence and respondeat superior, citing a directive from WSU coaches to players to “keep each other accountable” as the basis for that liability. Rockey cited McKown v. Simon Prop. Grp., Inc., 182 Wn.2d 752, 344 P.3d 661 (2015) as support. WSU moved to dismiss. The lower court granted that motion, leading to the appeal.
“Mr. Rockey cannot establish breach of this duty because no facts suggest Mr. Su’a-Kalio’s assault was foreseeable,” wrote the appeals court. “Nothing indicates WSU had ongoing problems with assaults between members of its football team. Nor were there any signs of tension between Mr. Rockey and Mr. Su’a-Kalio. Prior to the assault, Mr. Rockey and Mr. Su‘a-Kalio never exchanged harsh words. They had been friends. While an unidentified player had unsuccessfully attempted to confront Mr. Rockey prior to the incident with Mr. Su’a-Kalio, there were no facts linking Mr. Su’a-Kalio’s conduct to the prior incident or suggesting that aggressive conduct toward Mr. Rockey would continue. Even Mr. Rockey admitted that, at the time of the assault, most other players were not really mad at him because they knew he was hurt.
“Mr. Rockey’s attempt to hold WSU responsible under the doctrine of respondeat superior also fails. Even if we were to consider Mr. Su’a-Kalio an employee of WSU based on his scholarship status, WSU would still not be liable for Mr. Su’a-Kalio’s intentional assault. Robel v. Roundup Corp., 148 Wn.2d 35, 52-53, 59 P.3d 611 (2002); Niece v. Elmview Grp. Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997). Respondeat superior liability requires showing an employee acted in furtherance of the employer’s interests. Id. While WSU’s football team had an interest in promoting team accountability, nothing about this laudable goal could be fulfilled by Mr. Su’a-Kalio’s intentionally assaultive conduct. Furthermore, no one affiliated with WSU condoned Mr. Su’a-Kalio’s actions as consistent with the team philosophy. To the contrary, Mr. Su’a-Kalio was criminally charged, removed from the football team, and ultimately expelled. Mr. Rockey’s respondeat superior claim lacks factual support.”
Domenic R. Rockey v. Washington State University; Ct. App. Wisc.; No. 33776-6-III, 2016 Wash. App. LEXIS 2354; 10/4/16
Attorneys of Record: (for appellant) Michael John Kelly, Gehrke, Baker, Doull & Kelly, Des Moines, WA; Joseph Orry-leroy Baker, Law Offices of Gehrke, Baker & Doull, Des Moines, WA; Joshua Doull, Gehrke, Baker, Doull & Kelly, PLLC, Des Moines, WA. (for respondent) Paul J. Triesch, Attorney General’s Ofc, Seattle, WA.
