This week I was interviewed about the implications of the much publicized FAMU hazing incident as it relates to Florida A & M University’s liability for the criminal acts of others. It’s important to note that initially the thought is that perhaps FAMU does have some liability because of a culture that tolerates hazing – i.e. violence committed on others as a ritualistic part of being in an organization – because the organization in question is sanctioned and sponsored by the University. Currently the thought is that the school might have some liability because not only is FAMU’s hazing well documented, but perhaps in someway endorsed by the institution. This can be implicitly or explicitly endorsed, perhaps by way of simply turning a blind eye.
Recently it was discovered that Mr. Robert Champion, the victim in the most current case occurring at the end of 2011, was openly homosexual. The school – or at least people who say they are representing the school – have now come forward and said that the school should not have liability because Mr. Champion was targeted because he was homosexual and therefore the incident qualifies as a hate crime. Why this is important is as follows: First you need to have a basic understanding of negligence liability. In this case, in a very generic sense, tort in general provides that the organization would have a duty to protect a person positioned like Mr. Champion, and a failure to provide the requisite protection to Mr. Champion would be a breached that duty. When the breach of that duty is what causes the actual injury to the victim, and the victim, or the plaintiff in this case, is ultimately damaged by that injury from the breach then an organization can be liable for those damages.
Here is how it would work in the FAMU case. The theory would be that Florida A & M University would have a duty to protect Mr. Champion from being injured while he is a member of the Florida A & M University Band, The Marching 100. They breached that duty by not providing supervision, perhaps on the bus, where Mr. Champion was apparently attacked. It was that attack that caused the damages to Mr. Champion, and as it’s well documented, Mr. Champion died from the injuries suffered while on the bus.
Here’s the defense to that. If you are FAMU’s counsel the defense you may argue would be that FAMU has no obligation to protect a person from the criminal acts of another because it has to be a situation that is foreseeable. For example a drastic but simple example is if I was the owner of the World Trade Center before 9/11 occurred, I certainly have an obligation to make sure the buildings are sound; they’re intact; they don’t fall down, but I would argue I have no obligation to protect against criminal acts, in this case terrorist acts, of perpetrators who stole airplanes and flew them into the towers. That is completely unforeseeable, and I should have no liability for this act. How that relates to FAMU is that the argument could be FAMU has no obligation to protect Mr. Champion from people who are attacking him because he’s homosexual. That argument has other weaknesses but as it relates to hazing, I’ll address that. Specifically it would be that Mr. Champion was targeted for the beating he took that night as a result of his homosexuality, and a hate crime is an unforeseeable incident for which FAMU cannot be liable.
That is somewhat a weak argument as it appears by way of the initial reports are that nine other people were attacked on the bus that night as well. Presumably they weren’t homosexual and presumably Mr. Champion wasn’t the first homosexual band member at FAMU either. So in order to defend by saying this was a unique criminal act that had nothing to do with any sort of ritualistic activity on the part of FAMU would be a difficult argument to make under those facts, if in fact they are true. So in summary I would suggest that FAMU will not be insulated from liability, (if they have any liability at all), just because Mr. Champion may or may not have been homosexual because of the ongoing, documented, arguably known to the University, process of hazing that occurs at FAMU.