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Date: 02-02-2016

Case Style: Johnny Six v. Jaems LeRoy Sawyer

Case Number: CJ-2013-5728

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: James Wirth, Chuck Parrish and Randy Gause

Defendant's Attorney: Kevin Adams

Description: Tulsa, OK - Texas Draw in Tulsa, Oklahoma Neighbor Shooting Neighbor Case

Johnny Six sued James LeRoy Sawyer on a civil assault and battery theory seeking to recover of the injuries and damages sustained by him as a result of being shot in the legal by Sawyer with a .410 shotgun claiming:

1. Plaintiff, JOHNNY SIX, (hereinafter Six) is an individual person who was a resident of Tulsa County, State of Oklahoma at the time of the subject incident.

2. Defendant, JAMES LEROY SAWYER, is an individual person who was a resident of Tulsa County, State of Oklahoma at the time of the subject incident.

3. The subject incident, and Plaintiff s resulting injuries which are the subject of this action,. occurred in Tulsa County, State of Oklahoma.

4. This Court has proper jurisdiction and venue is proper in Tulsa County pursuant to Okla Stat. tit. 12, § 141 (2) (1965).

STATEMENT OF FACTS


5. On or about December 17, 2012, around 1:30 a.m., Six walked out into his yard to retrieve his garbage cans, which he noticed were sitting slighty onto his neighbor's property, at which time he stepped slightly over the property line between Six's and Defendant's adjoining property.

6. Suddenly and without warning, Six was then shot by Defendant with a shotgun, . despite posing no imminent threat to the Defendant. Defendant then proceeded to beat Plaintiff over the head with the shotgun until the butt broke off.

7. When officers arrived on the scene, Defendant claimed that he was staking out his yard because he had been robbed before, and readily admitted to shooting and beating Plaintiff.

8. Plaintiff was taken directly to Saint Francis Hospital via ambulance and treated for serious injuries.

9. Defendant was subsequently charged criminally with two (2) counts of Assault and Battery With a Deadly Weapon, to which he pleaded GUILTY, specifically admitting guilt in Court documents.

COUNT ONE -NEGLIGENCE OF JAMES LEROY SAWYER-ASSAULT & BATTERY

10. Paragraphs 1-9 are hereby incorporated herein by reference.

11. Defendant, JAMES LEROY SAWYER, without the consent of Plaintiff, acted with the intent of making a harmful or offensive contact with Plaintiff and with the intent of making Plaintiff apprehensive of such contact.

12. Defendant's actions were willful, wanton, reckless, careless, and exhibited an utter and complete disregard for the safety and well-being of Six and others similarly situated.

13. Such intent and actions included shooting, hitting, and beating Six, who posed no imminent threat to Defendant and who was unarmed.

14. Defendant's acts resulted in harmful and offensive contact with Plaintiff, causing him serious physical injuries, medical expenses and other damages resulting therefrom.

15. As a result of Defendants' Assault and Battery upon Plaintiff, Plaintiff sustained personal injuries, including medical expenses, temporary disability and impairment, mental and physical pain and suffering, loss of wages, a loss of earning capacity, and other actual damages.

COUNT TWO -NEGLIGENCE OF JAMES LEROY SAWYER-NEGLIGENCE

16. Paragraphs 1-15 are hereby incorporated herein by reference.

17. Defendant's actions in shooting his shotgun at Six were negligent in that the Defendant should have attempted to determine who was at the property line, whether they posed a threat, whether they were armed and what their intent was before firing, since it was dark and Defendant was using deadly force. Defendant failed to ascertain those facts, so his actions were negligent.

18. Defendant's actions were also negligent in that Six's injuries were not the type that ordinarily occur absent negligence and/or reckless intent by the Defendant. Additionally, Defendant know or should have known that the mere pointing of a loaded weapon at the Defendent was unlawful, reckless and/or negligent in and of itself. Thus, the Defendant is guilty of negligence under res ipsa loquitor, negligence per se and other general negligence theories.

COUNT THREE -NEGLIGENCE OF JAMES LEROY SAWYER-PUNITIVE DAMAGES

19. Paragraphs 1-18 are hereby incorporated herein by reference.

20. Defendant knew or should have known that he should not and could not defend his personal property through the use of deadly force. Likewise, his actions were egregious, grossly negligent and exhibited a gross disregard for the safety of Six and others. Defendant's actions were so reckless wanton that he should be subject to punitive damages to punish him and deter others from similar conduct.

WHEREFORE, Plaintiff demands judgment against the Defendant, providing Plaintiff with relief, including, but not limited to, actual damages in excess of Ten Thousand Dollars ($10,000.00), plus punitive damages in excess of Ten Thousand Dollars ($10,000.00), with interest accruing from the date of filing this suit, reasonable attorney fees, and all other relief deemed appropriate by this Court.

DEFENDANT JAMES SAWYER'S ANSWER, AFFIRMATIVE DEFENSES AND COUNTER CLAIM TO PLAINTIFF'S PETITION

Comes Now the Defendant, James Leroy Sawyer, (hereinafter "Defendant") by and through undersigned counsel, and herby submits his Answer, Affirmative Defenses and Counter Claim and to the Petition filed herein by Plaintiff:
1. Paragraph 1 is admitted.

2. Paragraph 2 is admitted.

3. Paragraph 3 is admitted.

4. Paragraph 4 is admitted.

5. Paragraph 5 is denied. The incident occurred approximately 6:00 pm December
17th, 2012 and Plaintiff admitted to Tulsa County Sheriff's deputy
as he was trespassing attempting to steal scrap metal to pay for his insurance at the time he was
shot. Plaintiff was not attempting to retrieve his trash cans at the time he shot he was in the commission of a felony.

6. Paragraph 6 is Admitted.

7. Paragraph 7 is Admitted.

8. Admitted taken to hospital. Defendant is without sufficient information to admit which hospital or the extent on his injuries therefore that portion Denied.

9. Paragraph 9 is Admitted.

10. No Response Required.

11. Paragraph 11 is Admitted in the sense that Defendant shot Plaintiff. It is denied in the sense regarding Defendant's intent. Defendant's intent was to protect his property not to make harmful or offensive contact.

12. Paragraph 12 is Denied. Defendant's actions were not m complete disregard for Plaintiff 's safety. Defendant intended on shooting Plaintiff in his rear end.

13. Paragraph 13 is Admitted

14. Defendant is without sufficient information to admit or deny Paragraph 14 therefore it is denied.

15. Defendant is without sufficient information to admit or deny Paragraph 15 therefore it is denied.

16. No Response Required.

17. Paragraph 17 is Denied. Defendant was not negligent in his actions.

18 Paragraph 19 is denied.

19. No Response Required

20. Paragraph 20 is denied.

AFFIRMATIVE DEFENSES

1. Count 1, is barred by the statute of limitations because the Petition was filed One year and One day after the event giving rise to the claim.

2. Failure to State a Claim Upon Which Relief can be Granted as to Count 1. Plaintiff attempts to blend two separate causes of action, Negligence and Assault and Battery.

3. Statute of Limitations for All Counts.

4. Contributory Negligence

5. Defense of Property

COUNTER CLAIM

Count 1 Conversion

1. James Sawyer owned certain real property including but not limited to scrap metal, automotive parts, wheels, a transmission, a four wheeler and certain other property.

2. Johnny Six intentionally took possession of and/or destroyed that personal property.

3. James Sawyer never gave Johnny Six permission to take such property.

4. James Sawyer has been harmed by the loss and damage to his property.

5. Johnny Six has continually taken the property of James Sawyer from on or about September of 2009 until the present.


PLAINTIFF'S ANSWER TO DEFENDANT'S COUNTERCLAIM


COMES Now the Plaintiff, JOHNNY SIX, by and through his attorneys of record, James M. Wirth and Charles M. Parrish, of the WIRTH LAw OFFICE, and for his Answer To Defendant's Counterclaim, states and avers as follows:

1. Plaintiff is without sufficient information to admit or deny Defendant's allegations, so denies same and demands strict proof thereof.

2. Denied.

3. Denied, in that the allegation presumes Plaintiff took Defendant's property, which Plaintiff denies.

4. Plaintiff is without sufficient information to admit or deny Defendant's allegations, so denies same and demands strict proof thereof.

5. Denied.

WHEREFORE, premises considered, and having fully answered, Plaintiff prays that the Defendant's take nothing by way of his Counterclaim and for any further relief the Court finds just and reasonable .


MOTION FOR SUMMARY JUDGMENT


COMES NOW the Plaintiff, JOHNNY SIX, by and through his attorneys, James M. Wirth, Charles M. Parrish, and Randall K. Gause of the Wirth Law OFFICE, and pursuant to Rule 13 (Okla. Stat. Ann. tit. 12 §Rule 13 (2002)) hereby moves for Summary Judgment, based upon the admitted conduct of the Defendant, JAMES LEROY SAWYER.

STATEMENT OF UNDISPUTED MATERIAL FACTS

1. On or about December 17, 2012, at around 1:30 a.m., Plaintiff walked out into his yard to retrieve his garbage cans, which had blown slightly over the property line between Plaintiff and Defendant's adjoining properties.

2. While retrieving his garbage cans, suddenly and without warning, Defendant shot Plaintiff with a shotgun.

3. Plaintiff posed no threat to Defendant.

4. After Defendant shot Plaintiff, he then approached the wounded Plaintiff and proceeded to beat Plaintiff over the head with the shotgun until the butt broke off.

5. When officers arrived on the scene, Defendant claimed that he was staking out his yard because he had been robbed before; he readily admitted to shooting, and then beating the Plaintiff. See Exhibit A, Tulsa County Sheriff s Arrest and Booking Report.

6. Plaintiff was transported to Saint Francis Hospital via ambulance and was treated for serious injuries, all arising from the Defendant's actions. See Plaintiff s Exhibit B, medical bills and records.

7. Defendant was subsequently charged criminally with two (2) counts of Assault and Battery with a Dangerous Weapon, to which he pled GUILTY, specifically admitting, under oath, that he committed the offenses described and intended to commit bodily harm on the Plaintiff. See Plaintiff s Exhibit C, Plea of Guilty Summary Facts, filed March 14, 2013, in District Court of Tulsa County.

8. On December 17, 2013, Plaintiff filed a Petition for negligence in District Court of Tulsa County, asserting damages for serious physical injuries, medical expenses and other expenses incurred by the Plaintiff, in addition to damages for temporary disability and impairment, mental and physical pain and suffering, loss of wages, and loss of earning capacity, and other actual and punitive damages.

ARGUMENT AND AUTHORITY

SUMMARY JUDGMENT SHOULD BE GRANTED AS THERE IS NO MATERIAL ISSUE IN DISPUTE

Summary judgment pursuant to Okla. Stat. tit. 12, § 2056 and Rule 13 is appropriate where there is no material issue of fact necessitating a trial on the merits. Sperling v. Marler, 1998 OK 81, 963 P.2d 577.

COUNT I: Civil Assault & Battery

The facts of the instant case are not in dispute, and establish the necessary elements of civil assault and battery:

Assault: Elements of Liability

First, Defendant acted either with the intent of making (harmful/offensive) contact with the person of Plaintiff, or with the intent of putting Plaintiff in apprehension of such contact; and
Second, Plaintiff was placed in apprehension of an immediate (harmful/offensive) contact with his person by the conduct of Defendant; or Plaintiff was caused to suffer fright and terror. 1
Vaughn v. Baxter, 488 P.2d 1234, 1237 (Okla. 1971).


Battery: Elements of Liability

First, Defendant, without the consent of Plaintiff, acted either with the intent of making a

1 Oklahoma Uniform Jury Instructions Civil No. 19.1.

(harmful/offensive) contact with the person of Plaintiff, or with the intent of putting Plaintiff in apprehension of such contact.

Second, Defendant's act resulted in a (harmful/offensive) contact with Plaintiff.

Each of the above elements has already been established and is not in dispute based on the following:

1. Defendant admitted, under oath, in his Plea of Guilty, Summary of Facts
(attached), that he intended to inflict bodily harm upon the Plaintiff, and he did so.

2. Defendant has admitted, under oath, in his Plea of Guilty, Summary of Facts (attached), and also in the Tulsa County Sheriff s Office Arrest and Booking Report (attached), that after he shot Plaintiff on December 17, 2012, he then beat the wounded Plaintiff with the butt of a shotgun.

3. The State charged JAMES LEROY SAWYER with Assault and Battery with a Dangerous Weapon under Okla. Stat. tit. 21, § 645, and he was convicted of the same for his actions against Plaintiff. As can be seen from the authority below, the elements of the criminal offense Defendant has already been convicted of necessary encompasses the elements that Plaintiff is required to prove herein.

Okla. Stat. tit. 21, § 645 provides as follows::

Every person who, with intent to do bodily harm and without justifiable or excusable cause, commits any assault, battery, or assault and battery upon the person of another with any sharp or dangerous weapon, or who, without such cause, shoots at another, with any kind of firearm, air gun, conductive energy weapon or other means whatever, with intent to injure any person, although without the intent to kill such person or to commit any felony, upon conviction is guilty of a felony punishable by imprisonment in the State Penitentiary not exceeding ten (10) years, or by imprisonment in a county jail not exceeding one (1) year.

The Oklahoma Uniform Jury Instructions ("OUJI") clearly restate the prima facia
requirements of the crime of assault and battery:

First, (an assault) (a battery)/(an assault and battery),

Second, upon another person;

Third, by shooting at another (with a firearm)/(with an air gun)/(conductive energy weapon)/(by any means); Fourth, without justifiable or excusable cause;

Fifth, with intent to injure any person.

Assault Defined

An assault is any willful and unlawful attempt or offer to do a bodily hurt to another with force or violence.

Battery Defined

A battery is any willful and unlawful use of force or violence upon the person of another.


CONCLUSION

For the reasons and arguments stated above, Plaintiff JOHNNY SIX should be granted Summary Judgment against the Defendant, JAMES LEROY SAWYER, together with costs of this action and any other relief which the Court deems proper.

Plaintiff's motion for summary judgment was granted by the Court.

Outcome: 02-02-2016 DISPOTHER

SELLERS, JEFFERSON D.: CASE CALLED FOR JURY TRIAL. BOTH SIDES PRESENT IN OPEN COURT AND ANNOUNCE READY FOR TRIAL. PLAINTIFF PRESENT AND REPRESENTED BY RANDALL GAUSE. DEFENDANT PRESENT AND REPRESENTED BY KEVIN ADAMS. THE JURORS ARE CALLED AND SWORN TO THEIR QUALIFICATIONS. THE JURY IS IMPANELED AND EXAMINED FOR CAUSE.

THE JURORS ARE ACCEPTED AND SWORN TO TRY THE CAUSE:

OPENING STATEMENTS ARE MADE. 4 WITNESS SWORN. RULE WAS INVOKED. REPORTER LYNETTE QUETONE. PLAINTIFF PRESENTS EVIDENCE AND RESTS. DEFENDANT PRESENTS NO EVIDENCE AND RESTS. DEFENDANT RENEWS MOVE FOR A DIRECTED VERDICT AND IS OVERRULED. THE JURY IS INSTRUCTED AS TO THE LAW. CLOSING ARGUMENTS ARE MADE. THE SWEARING OF THE BAILIFF IS WAIVED AND AT 10:00 AM THE JURY RETIRES FOR DELIBERATION IN CUSTODY OF THE BAILIFF. AT 11:50 AM THE JURY RETURNS INTO OPEN COURT WITH THEIR VERDICT WHICH IS READ IN OPEN COURT, ORDERED RECORDED AND FILED, AND IS, TO WIT: "WE, THE JURY, IMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND THE ISSUES IN FAVOR OF THE PLAINTIFF, JOHNNY SIX AS FOLLOWS: THE DOLLAR AMOUNT OF HIS ACTUAL DAMAGES IS THE SUM OF $500.00 AS TO PLAINTIFF'S CLAIM AGAINST DEFENDANT FOR BATTERY, SIGNED 10 JURORS. WE, THE JURY, EMPANELED AND SWORN IN THE ABOVE ENTITLED CAUSE, DO, UPON OUR OATHS, FIND IN FAVOR OF THE DEFENDANT, JAMES LEROY SAWYER, AS FOLLOWS: THE DOLLAR AMOUNT OF HIS ACTUAL DAMAGES IS THE SUM OF $500.00 AS TO DEFENDANT'S COUNTERCLAIM FOR CONVERSATION, SIGNED JOHN GREEN, FOREMAN.

Plaintiff's Experts:

Defendant's Experts:

Comments: Editor's Comment: It is not legal or appropriate to shoot someone for stealing watermelons or other personal property.



 
 
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