Another top university has avoided liability for the alleged criminal conduct of football players as a judge ruled that the father of a murder victim cannot sue Arizona State University for failing to control the “known violent tendencies” of a former star running back.

“To impose a duty in this case would have the effect of making the State’s colleges and universities insurers against the risks associated with the conduct of their students whenever the students are away from the campus for private reasons,” Maricopa County Superior Judge Robert C. Houser warned in dismissing the father's $14 million wrongful-death action.

While a member of the Sun Devils football team, Loren Wade allegedly shot Brandon Falkner, a former ASU defensive back, outside a Phoenix nightclub in March 2005. After the shooting, school officials acknowledged receiving complaints from three women that Wade had threatened to kill them.

Falkner's father claimed ASU had a duty to protect the public from Wade's “known violent tendencies,” in part because it has a “special relationship” with student-athletes, particularly football players. The suit named Sun Devils head coach Dirk Koetter and athletic director Gene Smith as individual defendants.

According to the Restatement of Torts, “One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.”

But Houser refused to extend such liability to school officials. While courts have, for example, found doctors negligent for failing to control patients, he said in his ruling,

the custodial arrangement contemplated by [the Restatement] does not embrace the degree of control which can be reasonably expected by a university over its students, including its student-athletes.

In another case involving a big-time NCAA football program, a federal judge ruled last year that the University of Colorado was not liable for the behavior of players and recruits who allegedly raped two women at an off-campus party. Other similar cases (see table) have been settled.

Wade, 23, is scheduled to stand trial for murder in February. ASU is also facing a negligence suit filed by a woman who claims former Sun Devils safety Darnel Henderson raped her in a residence hall.

Koetter and Smith, the plaintiff alleges, "created and fostered an environment that encouraged inappropriate behavior by football players, including sexual harassment of female students and other women."

By Matthew Heller
11/16/06