                                                                    FILED
                                                                OCTOBER 4, 2016
                                                           In the Office of the Clerk of Court
                                                         WA State Court of Appeals, Division Ill




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

DOMENIC R. ROCKEY,                           )         No. 33776-6-111
                                             )
                      Appellant,             )
                                             )
      v.                                     )         UNPUBLISHED OPINION
                                             )
WASHINGTON STATE UNIVERSITY,                 )
                                             )
                      Respondent.            )

      PENNELL, J. -    Domenic Rockey appeals a summary judgment order, dismissing

claims filed against Washington State University (WSU) relating to an on-campus assault.

We affirm.

                                    BACKGROUND

      Mr. Rockey was a walk-on quarterback for WSU's football team. After an early

morning practice, another player, Emmitwally Su'a-Kalio, punched Mr. Rockey in the

face. Mr. Su'a-Kalio was upset because he believed Mr. Rockey's deficient workout

performance caused the team to be assigned additional "up-downs" 1 and ultimately led to

early termination of the session. Clerk's Papers (CP) at 277.


       1 Up-downs  are an exercise described as: "Stand[] straight up, ... the whistle
[blows], down into a push-up position, stand back up." Clerk's Papers (CP) at 279. The
complaint also references them as "burpees." CP at 7.
No. 33776-6-III
Rockey v. WSU


       Mr. Rockey sued WSU under theories of negligence and respondeat superior. Mr.

Rockey specifically cited a directive to players from the WSU football coaches to "keep

each other accountable" as the basis for that liability. CP at 77. WSU denied liability and

moved for summary judgment. The trial court granted WSU's motion. Mr. Rockey

appeals.

                                       ANALYSIS

       As owner of the locker room where the assault took place, WSU owed Mr. Rockey

a duty to protect him from foreseeable harms. McKown v. Simon Prop. Grp., Inc., 182

Wn.2d 752, 344 P.3d 661 (2015). Mr. Rockey cannot establish breach of this duty

because no facts suggest Mr. Su'a-Kalio's assault was foreseeable. 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.


                                            2
No. 33776-6-III
Rockey v. WSU


       Mr. Rockey's attempt to hold WSU responsible under the doctrine of respondeat

superior also fails. Even ifwe 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.

       WSU requests attorney fees and costs on appeal pursuant to RAP 18.1 and 18.9.

We deny this request as it is not accompanied by sufficient support. Wilson Court Ltd.

P'ship v. Tony Maroni's, Inc., 134 Wn.2d 692, 710 n.4, 952 P.2d 590 (1998).

                                    CONCLUSION

       The superior court's order of dismissal is affirmed and WSU's request for attorney

fees and costs is denied.


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 l       No. 33776-6-III
         Rockey v. WSU
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               A majority of the panel has determined this opinion will not be printed in the

 I       Washington Appellate Reports, but it will be filed for public record pursuant to RCW
I
i        2.06.040.
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I                                                 Pennell, J.
 l       WE CONCUR:
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