Date: 06-07-2013

Case Style: Ruby Katherine Tucker v. Allison Davilla

Case Number: CJ-2012-2331

Judge: Lisa T. Davis

Court: District Court, Oklahoma County, Oklahoma

Plaintiff's Attorney: Larry Tawwater, Darren M. Tawwater and David N. Mayo

Defendant's Attorney: Michael L. Darrah and Kaci L. Trojan

Description: Ruby Katherine Tucker, individually and as parent and next friend of Minor Child, C.R.J., a minor, sued Allison Davilla and William Johnson on negligence theories claiming:

1. On April 18th, 2010, Minor Child C.R.J. was visiting the home of Defendants Allison Davilla and William Johnson at 1502 Carlisle Court, Oklahoma City, when an Akita dog mauled Minor Child C.R.J. As a result of Defendants’ negligence and breach of their duty to Plaintiffs, Plaintiffs suffered injuries as set forth below.

2. At all times herein mentioned, Defendants kept the dog in their home, which caused the injuries and damage complained of, This dog had a vicious nature, disposition, and propensity, which was known or should have been known by Defendants.

3. The dog was not under any form of restraint or control of a competent person. Minor Child C.R.J, was suddenly, without provocation and with no warning viciously attacked by the dog. The dog severely bit Minor Child C.R.J.’s face, causing severe injuries.

4. The injuries to Plaintiffs were also the result of Defendants’ violation of various Oklahoma statutes and Oklahoma City ordinances in force and effect at the time of the incident giving rise to this lawsuit rendering them strictly liable.

5. As a result of Defendants’ conduct, Minor Child C.R.J., suffered severe, permanent, and irreversible physical injuries; he has been permanently disabled and disfigured; he has suffered, and will continue to suffer, mental and emotional pain and anguish; he has incurred, and will continue to incur, medical bills; he has lost, and will continue to lose, income; he has suffered an impaired ability to earn future earnings; he has suffered, and will continue to suffer, a reduction of his quality of life; and, she has been damaged in an amount in excess of $75,000.00, exclusive of interest, attorneys’ fees, and costs.

6. As a result of Defendants’ conduct, Plaintiff, Ruby Katherine Tucker, mother of Minor Child C.R.J, suffered damage due to medical expenses, loss of wages, necessary travel expenses taking her son to and from various appointments, and claims damages in an amount in excess of $75,000.00, exclusive of interest, attorneys’ fees, and costs.

WHEREFORE, Plaintiffs pray judgment against Defendants in an amount in excess of $75,000.00, exclusive of interest and costs, and for any other relief the Court deems just and equitable.

Defendants' answers in this case are not available.

Defendants' moved for summary judgment asserting:

1. Defendant Clinton Johnson is the father of C.R.J. 2. Defendant Allison Johnson is the stepmother of C.R.J. 3. On April 18, 2010, C.R.J. was at the home where his father and father’s girlfriend (now stepmother) lived when he was bitten by the family dog. Exhibit A, Petition.

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In Oklahoma, parental immunity remains intact with respect to injuries occurring in a parent’s home under the supervision (or lack thereoO of the parent. In Sixkiller v. Summers, 19840K 14, 680 P.2d 360, the plaintiff, Sixkiller, had custody of her son David Summers, a minor. David was visiting his father’s residence when he was shot by an arrow and lost an eye. The mother and son subsequently filed suit against the father for negligent supervision in leaving children unattended at his rural residence with access to his bows and arrows. The district court dismissed the action under the doctrine of parental immunity.

On appeal, the Oklahoma Supreme Court recognized that parental immunity was designed to promote family harmony. The plaintiffs argued that the doctrine should be abolished as the prevalence of liability insurance diminishes the likelihood of a disruption of family harmony and as an injured child should be compensated regardless of who inflicted the injury. While the Oklahoma Supreme Court has rejected parental immunity in automobile liability cases up to the available insurance limits, the Oklahoma Supreme Court in Sixkiller declined to further dilute or abolish parental immunity and upheld the parental immunity doctrine. Specifically, the Court held:

Even in jurisdictions which have abrogated parental immunity, some nonetheless continue to preclude suit where the alleged negligent act involves:

(1) an exercise of parental authority over the child, including supervision, or (2) an exercise of ordinary parental discretion which concerns the provision of food, clothing, housing, medical and dental service, and other care... The law imposes on a parent the duty to care for and discipline his child, and in the performance of these functions the parent has wide discretion. As aptly stated in Fold v. Jeffrey, 93 N.J. 533, 461 A.2d 1145 (1983): There is no recognized correct theory on how much freedom a parent should allow his or her children. Some parents believe that a child must be made self-reliant at an early age and accordingly give their children a great deal of independence. To outsiders, such independence may look like indifference or neglect. On the other hand, some parents believe that their children must be vigilantly monitored from infancy through adolescence. To outsiders, such vigilance and concern may appear to shelter the children from the world and to thwart their development.

As each parent is different, so is each child. There is no one ideal ‘formula’ for how much supervision a child should receive at a given age. What may be perfectly safe to entrust to one five year old may be utterly dangerous in the hands of another child of the same age. This disparity often proves true even among siblings in the same household. The parent is clearly in the best position to know the limitations and capabilities of his or her own children. These intangibles cannot be adequately conveyed within the formal atmosphere of a courtroom. Nor do we believe that a court or jury can evaluate these highly subjective factors without somehow supplanting the parent’s own individual philosophy.”

Fold v. Jeffrey was another case in which the New Jersey Supreme Court, having abrogated parental immunity in negligence suits, adopted the view that suit should be precluded in cases of negligent supervision. Although we have abrogated the doctrine of parental immunity in some negligence actions, we find the rationale expressed for precluding suit in cases of negligent supervision reasonable and persuasive in disallowing suit in the instant action. In the interests of preserving family unity and harmony, we therefore decline to abrogate parental immunity in a case such as the one before us; we are concerned that such litigation if allowed would adversely affect the family relationship by intruding upon the authority and discretion of parents in rearing and caring for their children. Although in Unah the existence of compulsory automobile liability coverage was a significant factor, the fact that the appel lee-defendant happened to have homeowners’ liability coverage does not displace the reasons for preserving immunity in cases of negligent supervision. And, while it is of the greatest interest of the courts to protect rights of children, we note that in the area of parental abuse or neglect the State may intervene through appropriate proceedings to protect the abused or neglected child.

Our limited abrogation of parental immunity in Unah will not be extended to cases involving negligent supervision short of wilful misconduct.

J.cj. (Emphasis added). Based on Sixkiller, C.R.J. does not have a valid claim against the Johnsons. Although not binding, authority from other jurisdictions is persuasive and provides sound reasoning for a grant of summary judgment in this case. Specifically, in an action similar to the instant case, Squelia, Ir. v. Squelia, Sr., 234 Conn. 259 (Conn. 1995), a 4-year- old minor sued his father for personal injuries he sustained when he was attached by his father’s dog. The trial court granted summary judgment to the father on the basis of parental immunity. The appellate court recognized that the purpose of the parental immunity doctrine serves to:

preserve the integrity and unity of the family and to avoid unnecessarily injecting “the machinery of the state” into the day- to-day exercise of parental discretion.

Squelia, Ir. v. Squelia, Sr., 234 Conn. 259 (Conn. 1995). Ultimately, the Supreme Court of Connecticut in Squelia affirmed the trial court’s grant of summary judgment. Specifically, the court held:

The decision to maintain a dog in the home is an example of parental discretion, and permitting a minor child to be exposed to the dog is within the parental supervisory function. The maintenance of the home environment typifies the day-to-day exercise of parental discretion that the state would rather not disrupt. Consequently, this action by an un unemancipated minor child, who had been injured as a result of his parent’s decision to keep a dog in the home and expose the child to it, falls directly within the scope of claims the [parental immunity] doctrine is intended to bar. Squelia, Jr. v. Squelia, Sr., 234 Conn. 259, at 269-270.

Similarly, the decision of C.R.J’s father to maintain a dog in his home was at his discretion as a parent. Mr. and Mrs. Johnson’s actions in permitting C.R.J. to be exposed to the dog is within the parental supervisory function. Based on the above, it is clear that Mr. and Mrs. Johnson are entitled to Summary Judgment on the claim of C.R.J. because any such claim is barred by the doctrine of parental immunity.

WHEREFORE, the Defendants, Mr. and Mrs. Johnson, respectfully request that this Court award Summary Judgment in their favor as requested above and that the Court award them such other and further relief as the Court deems just and equitable.

(Key Word: Dog Bite)

Outcome: On June 7, 2013, this matter comes on before the undersigned Oklahoma County District Court Judge upon the Joint Application for Court Approval of Settlement and for Court Order of Dismissal With Prejudice as submitted by Plaintiffs, Ruby Katherine Tucker, individually, and as parent and next friend of minor child, Clinton Ryley Johnson, and Defendants, Allison Davilla Johnson and Clinton William Johnson. The Joint Application seeks Court approval of a settlement agreement entered into between Plaintiff, Ruby Katherine Tucker, individually, and as mother and next friend of Clinton Ryley Johnson, a minor, and Defendants, Allison Davilla Johnson and Clinton William Johnson. The Court, having reviewed the stipulations included in the parties’ Joint Application, after hearing sworn testimony of the Plaintiff, and being fully advised in the premises, finds and orders as follows:

1. Plaintiff, Clinton Ryley Johnson, a minor, whose date of birth is June 10, 2003, is the son of Ruby Katherine Tucker.

2. On April 18, 2010, Clinton Ryley Johnson, a minor, was involved in a dog bite incident wherein a dog owned by Defendants bit the minor Plaintiff, Clinton Ryley Johnson. As a result of this accident, Clinton Ryley Johnson, a minor, sustained personal injuries resulting in medical treatment and medical expenses.

3. A settlement agreement was entered into between the Plaintiff, Ruby Katherine Tucker, individually, and as mother and next friend of Clinton Ryley Johnson, a minor, and Defendants, Allison Davilla Johnson and Clinton William Johnson, whereby GHS Property & Casualty Insurance Company agreed to pay Plaintiffs the total sum of Three Hundred Thousand and No/lOO Dollars ($300,000.00) on behalf of its insureds, Allison Davilla Johnson and Clinton William Johnson, in consideration for a Parent’s Release and Indemnity Agreement and Release of All Claims on behalf of said minor and contingent upon this Court ordering Plaintiffs claims to be dismissed with prejudice. 4. Based on representations made by Defendants and their insurance carrier, the Court finds that $300,000.00 is the total insurance available to Defendants for this incident.

5. OHS Property & Casualty Insurance Company shall issue a check or draft payable to Ruby Katherine Tucker, individually, and as mother and next friend of Clinton Ryley Johnson, a minor, and The Tawwater Law Firm, P.L.L.C., in the amount of $247,877.84. This money shall be deposited in The Tawwater Law Firm, P.L.L,C, attorney trust account to be immediately distributed by The Tawwater Law Firm, P.L.L.C. as follows:

A. Of the $247,877.84 being held in The Tawwater Law Firm, P.L.L.C. attorney trust account, $131,030.13 of the funds shall be placed into a Federally insured trust account at UMB Bank pursuant to 12 O.S. §83 for the use and benefit of the minor child, Clinton Ryley Johnson.

B. Of the $247,877.84 being held in The Tawwater Law Firm, P.L.L.C. attorney trust account, $5,000.00 of the funds shall be paid to Ruby Katherine Tucker in full and final settlement of her claims for lost services of the minor, be those services past, present or future.

C. Of the $247,877.84 being held in The Tawwater Law Firm, P.L.L,C. attorney trust account, $6,230.62 of the funds shall be paid to Ruby Katherine Tucker to reimburse her for medical expenses, travel expenses, and all other expenses she incurred as a result of the dog bite Clinton Ryley Johnson suffered on April 18, 2010.

D. Of the $247,877.84 being held in The Tawwater Law Firm, P.L.L.C. attorney trust account, $105,617.09 shall be paid to The Tawwater Law Firm, P.L.L.C., for payment of attorneys fees and expenses pursuant to the Retainer agreement entered into between Ruby Katherine Tucker, individually, and as mother and next friend of Clinton Ryley Johnson, a minor, and The Tawwater Law Firm, P.L.L.C.

6. GHS Property & Casualty Insurance Company shall immediately issue a check or draft for $973.64 shall be paid to the Alabama Medicaid Agency of Montgomery County, Alabama, in full satisfaction of its reimbursement interest for medical services rendered to Ryley Johnson.

7. $51,148.52 shall be held by GHS Property & Casualty Insurance Company until the final amount of the lien filed by OU Medical Center for medical services rendered to Ryley Johnson may be determined by the Court. After the Court determines the proper amount of the OU Medical Center lien, OHS Property & Casualty Insurance Company shall issue a check to OU Medical Center for the amount determined by the Court. The balance of the $51,148.52 being held by OHS Property & Casualty Insurance Company after the OU Medical Center lien is paid, if any, shall be paid to Plaintiff, Ruby Katherine Tucker, as mother and next friend of Clinton Ryley Johnson, a minor, and The Tawwater Law Firm, P.L.L.C., to be deposited in the same minor trust account and under the same conditions referenced in paragraph 5 above.

8. The settlement agreement reached by the parties is fair and just and was entered into by the parties of their own free will, being fully represented by counsel, and after being made fully aware of the circumstances.

9. Plaintiff, Ruby Katherine Tucker, as mother and next friend of Clinton Ryley Johnson, a minor, is aware that said minor had a right to a jury trial and said minor had a right to await reaching the age of majority and up to one (1) year thereafter, before bringing this action, but by entering into this settlement has affirmatively agreed to waive said rights.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Joint Application for Court Approval of Settlement and for Court Order of Dismissal With Prejudice filed by the parties to this action should be and the same is hereby granted, and this Court approves the terms of the settlement agreement as set out herein and further hereby authorizes Ruby Katherine Tucker, individually, and as parent and next friend of minor child, Clinton Riley Johnson, to execute a dismissal with prejudice of Defendants, Allison Davilla and William Johnson.

Plaintiff's Experts:

Defendant's Experts:

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