Date: 11-06-2012

Case Style: Taylor Nelms v. State of Oklahoma, ex rel. Northwetern Oklahoma State University

Case Number: CJ-2011-3648

Judge: Roger H. Stuart

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Fred Albert Leibrock and Jennifer Miller Ventura

Defendant's Attorney: Kevin L. McClure

Description: 1. Plaintiff Taylor Nelms is a resident of the State of Oklahoma.

2. Defendant State of Oklahoma, ex rel. Northwestern Oklahoma State University (“Northwestern”), is a political subdivision of the State of Oklahoma.

3. This Court has jurisdiction over the parties and the subject matter of this action, and the venue is proper in Oklahoma County.

4. During the Fall of 2009, Plaintiff was a freshman at Northwestern, on a football scholarship.

5. On or about November 5, 2009, Plaintiff was informed by two of his coaches at Northwestern, Mr. Chad Adams (“Adams”) and Mr. Josh Cheek (“Cheek”), that he and other freshman football players were required to participate later that evening in a “wild cow milking contest” at a local rodeo. Plaintiff was told that participation in the event was not optional. In fact, required participation in the “wild cow milking contest” was officially sanctioned by Northwestern, and football coaches Adams and Cheek, as part of the “hazing” of freshman athletes at Northwestern.

6. At all times relevant to the events central to Plaintiffs claims in this action, Adams and Cheek were acting within the scope of their employment with Northwestern, which had a pattern and practice of approving of and requiring freshman football players to participate in the “wild cow milking contest” annually.

7. Plaintiff attended and participated in the “wild cow milking contest” as required by Northwestern, Adams and Cheek. During the course of the contest, and as a direct consequence of Northwestern’s negligence, Plaintiff sustained significant injuries to his jaw and other parts of his body. Plaintiff’s jaw was broken from the top of his gums to his cheek. As a result of the injuries suffered, Plaintiff was required to be hospitalized and undergo a surgical procedure which included wiring his jaw shut.

8. As a direct and proximate result of the negligence of Northwestern, Plaintiff suffered significant physical injuries and bodily harm, pain and suffering, disfigurement, loss of enjoyment of life, emotional distress, and actual damages including, but not limited to, medical bills in excess of $40,000.00, together with loss of his football scholarship and other funding for post-secondary education. Further, Northwestern’s actions were malicious, or grossly negligent, and made in reckless disregard for Plaintiffs safety, and physical and emotional well-being. Plaintiff has given notice of his tort claim to The State of Oklahoma through the Office of the Oklahoma Attorney General. The claim was deemed denied on January 11, 2011. See Notice of Denial of Claim attached as Exhibit 1.

First Cause of Action

Negligence

Plaintiff, for his First Cause of Action against Northwestern, hereby adopts the foregoing allegations in their entirety as if re-alleged here, and further alleges and states as follows:

9. Plaintiff has complied with all of the conditions precedent to bring this action.

Plaintiff filed a claimed with the State of Oklahoma, Department of Central Services, which responded as follows:


Phillips Murrah PC Fred A. 1eibrock 101 N Robinson Oklahoma City, OK 73102

January 14,2011

RE: Tort Claim of Risk Management No. Dear Mr. Liebroclc Taylor Nelms 1120008632

Dear Mr. Leibrock:

The Office of the Oklahoma Attorney General has completed the process of evaluating the above- referenced tort claim. After careflul consideration of the facts, your client’s claim is hereby denied. The basis for the denial of this claim includes, but is not limited to:

Under the Governmental Tort Claims Act, 51 0. S. § 151, et seq., a claim is deemed denied in its entirety within ninety (90) days, unless the state or political subdivision has denied the claim or a settlement has been reached, Your client’s claim was deemed denied as of January 11, 2011. No action for any cause arising under the Act shall be maintained unless valid notice has been given and the action is commenced within one hundred eighty (180) days after denial of the claim. Please be advised that this letter does not extend the statutory time limits prescribed by the Governmental Tort Claims Act.

In addition, a determination has been made that the State was not negligent in this matter.

Your client has the right, under Oklahoma law, to differ with the decision to deny his tort claim. The right to seek compensation by suit in District Court may be restricted by the limitations period prescribed by law.

Tara Hubbard Senior Claims Specialist Rick Management Division

The State of Oklahoma answered as follows:

COMES NOW the Defendant, State of Oklahoma cx rel, Northwestern Oklahoma State University, and for its Answer to Plaintiffs Petition alleges and states:

1. Defendant denies each and every allegation in Plaintiff’s Petition unless specifically admitted herein;

2. Defendant admits the allegations in Paragraphs 1, 3 and 4;

3. Defendant denies the allegations in Paragraphs 2, 5, 8, 9, 10, 11, 12, 13, 14 and 15.

4. In Paragraph 6, Defendant is without sufficient information to admit or deny whether Adams and Creek were acting within the scope oftheir employment. Defendant denies the remaining allegations in Paragraph 6.

5. In Paragraph 7, Defendant admits that Plaintiff participated in the wild cow milking contest. Defendant denies that Plaintiff was required to participate and denies that Defendant is negligent. Defendant is without sufficient information to admit or deny the remaining allegations in Paragraph 7.

AFFIRMATIVE DEFENSES

1. Plaintiff’s claims are barred in whole or part by the Oklahoma Governmental Tort Claims Act, 51 0.5. §151, et seq.;

2. Sovereign Immunity;

3. Plaintiffs injuries were caused by third parties over whom this Defendant had no control;

4. Assumption of the risk;

5. Waiver;

6. Comparative/Contributory negligence

7. Defendant reserves the right to add affirmative defenses as they become known during the course of discovery.

WHEREFORE, Defendant pray that Plaintiff take nothing by way of his Petition, that judgment be entered in favor of the Defendant and that this Honorable Court award any other relief it finds to be just and equitable.

Outcome: JOURNAL ENTRY APPROVING SETTLEMENT

This matter comes before the undersigned Judge of the District Court, Oklahoma County, State of Oklahoma, for approval, under the Governmental Tort Claims Act, of a settlement and compromise negotiated and reached between the Defendant State of Oklahoma, ex. rel., Northwestern Oklahoma State University and Plaintiff Taylor Neims in the above-styled case. The Court, having reviewed the pleadings and considered evidence, and after being fully advised in the premises, finds that:

1. Taylor Nelms duly and timely filed a Notice of Tort Claim arising under the provisions of the Oklahoma Governmental Tort Claims Act (OGTCA), 51 O.S. 1991, § 151 et seq., demanding compensation for damages arising from the alleged tortious conduct of a state employee/agency. Upon denial of that tort claim, Plaintiff, represented by counsel, timely filed an action under the OGTCA with the Court.

2. Pursuant to the provisions of the Oklahoma Governmental Tort Claims Act, 51 O.S. § 1 58.A., this Court must approve this proposed settlement.

3. An agreement to settle and compromise this claim has been reached between Defendant State of Oklahoma, cx. rel., Northwestern Oklahoma State University and Plaintiff Taylor Neims, and includes a monetary payment in the excess of $25,000.00 by the Defendant State of Oklahoma, cx. reL, Northwestern Oklahoma State University the total of which is inclusive of all damages, attorney& fees, physicians’ liens, and costs for the above cause of action of all parties. Each party is to bear their own attorneys’ fees and costs associated with this litigation. The “Release and Settlement Agreement” has been signed and finalized by all appropriate parties and counsel.

4. This settlement and compromise is in complete satisfaction of all demands as to this cause of action by Plaintiff Taylor Neims and is in the best interests of the State of Oklahoma, cx. rd., Northwestern Oklahoma State University and should be approved by the District Court. The parties and counsel represent to the Court that this settlement is in the best interests of all parties.

IT IS THEREFORE ORDERED AND DECREED by the Court that the settlement and compromise of all claims as to this cause of action by Plaintiff Taylor Nelms against the Defendant State of Oklahoma, cx. rd., Northwestern Oklahoma State University in an amount in excess of $25,000.00, to wit, specifically, the amount set forth in the Release and Settlement Agreement in Case No. CJ-2011-3648, Oklahoma County District Court, State of Oklahoma, inclusive of all damages, attorneys’ fees, physicians’ liens, and costs, shall be and is hereby approved by the District Court.

Plaintiff's Experts:

Defendant's Experts:

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