Date: 12-17-2012

Case Style: Beverly Ann Concha v. City of Perskins

Case Number: CJ-2011-474

Judge: Phillip C. Corley

Court: District Court, Payne County, Oklahoma

Plaintiff's Attorney: Timothy Luke Abel

Defendant's Attorney: Robert Ray Jone, Jr. and David W. Kirk

Description: Beverly Ann Concha sued City of Perskins on a governmental tort claim auto negligence theory under 51 O.S. 151, et seq. claiming:

1. A claim pursuant to the Oklahoma Governmental Tort Claims Act, 51 OS. §151 Ct seq. has been presented to Defendant City of Perkins (“Defendant”), a political subdivision of the State of Oklahoma, and has been denied.

2. On May 25, 2010, Plaintiff Beverly Concha (“Plaintiff’), a minor, was riding a bicycle near the intersection of Eaton Drive and E. Knipe in Perkins, Oklahoma when she attempted to cross Eaton Drive in a westerly direction.

3. Steven Hensley, an agent, servant and employee of Defendant, and while acting within the scope and course of his employment and while driving a vehicle furnished to him by Defendant, was traveling south on Easton Drive near the aforesaid intersection when he collided with Plaintiff.

4. The collision resulted from Defendant’s negligence as follows:

a. Steven Flensley was traveling at a speed in excess of the posted speed limit and/or at a speed wherein he could not stop within the assured clear distance ahead.

b. Steven Hensley failed to keep a proper lookout.

c. Steven Hensley failed to use his brakes, horn or steering mechanism to avoid the collision.

d. Defendant furnished a vehicle fo Steven Hensley at a time when Defendant knew or should have known that Steven Hensley was not a carefUl, safe or competent driver and that as a result thereof, persons, including Plaintiff Beverly Concha, a minor, were likely to be injured.

5. As a result of Defendant’s negligence, Plaintiff suffered personal injuries. Said injuries are permanent, painful and progressive. When injured, Plaintiff was 6 years of age with a life expectancy of 75.0 years. As a fUrther result of such negligence, Plaintiff has and will incur medical expense, has and will suffer pain of mind and body, will be permanently disabled, and her earning capacity reduced in an amount in excess of $75,000.00.

COUNT II

6. Plaintiff for Count II repleads the allegations of Count I herein and states that Jamison Concha is the parent of Plaintiff. As a fUrther result of Defendant’s negligence, Jamison Concha has incuned medical expense for the care and treatment of his daughter during minority, has been deprived of her earnings during minority, has been deprived of her services and has been damaged in an amount in excess of $75,000.00, which damages he has assigned to Plaintiffpursuantto 100.5. §17.1.

WHEREFORE, Plaintiff prays judgment against Defendant in an amount in excess of $75,000.00, together with attorney fees, interest and costs of this action.


The City of Perkins appeared and answered as follows:

1. Admitted.

2. Defendant admits that on or about the alleged date the minor Plaintiff was attempting to ride a bicycle, which was much too large for her, near the referenced intersection within Perkins, Oklahoma, and that she managed to stay on it most of the way across Eaton Drive as alleged. To the extent the allegations of paragraph 2 of Plaintiffs Petition are inconsistent with this admission, they are denied.

3. Admitted.

4. Denied. Defendant denies the allegations contained in paragraph 4a through d, as well.

5. Defendant specifically denies that any of the damages described at paragraph 5 of Plaintiffs Petition were caused by any negligence on its part or on the part of its employee, Stephen Hensley. Defendants are without sufficient information to either admit or deny the remaining allegations of paragraph 5 and so these are denied.

6. Defendant is without sufficient information to either admit or deny the allegations contained in paragraph 6 of Plaintiffs Petition and so these are denied. Defendant Perkins notes that the statute referenced at paragraph 6 of Plaintiffs Petition was renumbered two and one half years ago, effective May21, 2009.

AFFIRMATIVE DEFENSES

Plaintiffs injuries were caused by the negligence of third-parties over whom this Defendant had no control, mainly those who were responsible for caring and supervising the minor Plaintiff and failed to do so, which resulted in her driving an unsuitable bicycle at a high rate of speed in front of oncoming traffic.

2. Some of Plaintiffs claims are barred by 51 OS. § 155, a provision of Oklahoma’s Governmental Tort Claims Act which contains numerous exemptions from tort liability. Generally, the assignment of vehicles to police officers is a discretionary decision of a municipality and its police department. Municipalities such as Perkins are exempt from liability for discretionary decisions.

3. The manner in which municipalities staff their departments, such as a police department’s patrol division, is a discretionary decision for which municipality enjoys an exemption from liability under Oklahoma’s Governmental Tort Claims Act.

4. Defendant Perkins’ Police Officer Stephen 1-lensley was confronted with a sudden emergency not of his own making, barring Plaintiffs ability to recover herein.

5. The tort liability of the City of Perkins is limited by statute, specifically 51 OS. § 1 54(A)(2).

6. The Defendant City of Perkins’ employee, Stephen Hensley, was a certified law enforcement officer at the time of the accident at issue. Because he was certified by and through the Oklahoma Counsel on Law Enforcement Education and Training (C.L.E.E.T.) and because this certification and training is the controlling standard within the state of Oklahoma, there is no higher standard to which the Defendant might be held. Accordingly, Plaintiffs theory stated at paragraph 4 (d) fails as a matter of law.

WHEREFORE, having fully answered, Defendant City of Perkins prays that Plaintiff take nothing by way of her Petition and that the Court enterjudgment in favor of the Defendant City of Perkins and against the Plaintiff, together with such further relief as the Court may deem just and proper.

Outcome: This cause comes on for hearing upon the joint application of Plaintiffs and Defendant, on the 1st day of November, 2012, before the undersigned Judge of the District Court for Payne County, State of Oklahoma, the Plaintiffs being present by her attorney of record, I. Luke Abel, Abel Law Firm, 900 N.E. 63, Oklahoma City, OK 73105, and the Defendant being present by its attorney of record, David W. Kirk, Lytle, Soulé & Curlee, P.C., 119 N. Robinson, Suite 1200, Oklahoma City, OK, 73102.

The Court having heard the evidence of the parties, and otherwise being fully advised in the premises, finds that the proposed settlement in behalf of all Plaintiffs and especially the minor Plaintiff Beverly Concha should he and hereby is approved. That pursuant to the terms of Plaintiffs’ settlement, counsel for Plaintiffs shall pay and satisfy the liens of the Oklahoma Health Care Authority (Medicaid) and the City of Stillwater in the combined total of One Thousand Two Hundred Fifty Five and 08/100 Dollars ($1,255.08), there being no other liens of any medical providers.

The Court also finds reasonable and approves Plaintiffs’ request for attorney’s fecs in the amount of Two Thousand Five Hundred and no/l00 Dollars ($2,500.00) and litigation expenses in the amount of Seven Hundred Forty Seven Dollars and no/100 Dollars ($747.00) for the claims of Billie Tohee, the assignee of Jamison Concha individually and as natural father and next friend of Beverly Concha. a minor, Billie Tohee, natural grandmother and next friend of Beverly Coneha, a minor, and Beverly Concha, a minor.

The balance of Plaintiffs’ recovery, in the amount of Two Thousand Nine Hundred Ninety Sevcn and 92/100 Dollars ($2,997.92) shall be deposited into an interest bearing account at Stillwater National Bank for the benefit of Beverly Concha, a minor. This money, and any accrued interest, shall be payable only by Order of the Court upon application, or upon said minor reaching 18 years of age. Until the minor reaches 18 years of age, funds may only be withdrawn by Order of this Court along with the proper presentation of a certified copy of this Order, a certified copy of said minor’s birth certificate and proper identification to the above named depository.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED by the Court that the proposed settlement in favor of Plaintiffs Billie Tohee, as assignee of Jamison Concha as next friend of Beverly Concha, a minor, Billie Tohee, natural grandmother and next friend of Beverly Concha, a minor, and Beverly Concha, a minor, be approved in the amount of Seven Thousand Five Hundred and no/100 Dollars ($7,500.00), with a net recovery to Beverly Concha, a minor, by and through Plaintiff, after payment of all liens and attorney’s fees, in the amount of Two Thousand Nine Hundred Ninety Seven and 92/100 Dollars ($2,997.92) and that said money shall be deposited by the Plaintiffs in the statutorily compliant bank account maintained for the benefit of Beverly Concha, a minor.

Plaintiffs shall execute a Dismissal With Prejudice and Release of All Claims in favor of Defendant and its insurer as consideration for this settlement, said Dismissal and Release forever foreclosing any claims by Plaintiffs individually and Beverly Concha, a minor, and any other person in any capacity whatsoever against the parties released.

FURTHER, that within ten (10) business days of the entry of this Order, Plaintiffs shall cause to be filed with the Court Clerk of the District Court for Payne County, Oklahoma, a signed and notarized receipt from the depository institution where the account is maintained, indicating that the referenced settlement proceeds have been deposited for the benefit of the minor Beverly Concha, a minor.

Plaintiff's Experts:

Defendant's Experts:

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