Appeals court upholds ruling in case over odometer law

Journal Record, The (Oklahoma City), Nov 4, 1999

The following summaries of state and 10th District court opinions were compiled by Anthony Sammons.

Oklahoma Supreme Court

For the week ended Nov. 2

N.H., a minor, et al., vs. Presbyterian Church (U.S.A.), No. 92,953.

N.H., a minor, brought suit against the Presbyterian national organization, alleging that a minister molested N.H. and 11 other minors. N.H. asserted that the national organization was liable for Robert Brigden's conduct under the doctrine of respondeat superior and for negligence in hiring, retaining and supervising Brigden. The church moved for summary judgment, arguing that no employer/employee relationship existed, and the First Amendment of the Constitution barred adjudication of the case. The trial court sustained the motion and N.H. appealed.

On appeal, the court affirmed the trial court's granting of summary judgment. The court on review concluded that under the doctrine of respondeat superior, the acts alleged were outside the scope of employment. The court reasoned that molesting children was not part of a minister's duty nor customary within the business of the congregation. As to the issue of negligent hiring and retention, the court determined that the national organization lacked knowledge sufficient to impose liability. The court noted that the only information the national organization had was that Brigden was described as a "faithful Presbyster."

Finally, the court stated that "since no liability could be imposed on the national organization, the court did not need to determine whether the First Amendment would stand as a bar to employment-related liability of an ecclesiastical organization for its ministerial officers."

Oklahoma Court of Civil Appeals

For the week ended Nov. 2

Rodger Kerr vs. A&G Auto, No. 91,756.

Kerr bought a Suburban truck from defendant A&G. At the time of the sale, the truck's odometer stated that it had 58,000 miles on it. When A&G bought the truck at an auction, A&G received the vehicle's title which reflected that the truck had more than 100,000 miles on it, though the odometer said 58,000. When Kerr purchased the truck, an A&G representative informed Kerr that the 58,000 figure was correct. Kerr became concerned about the true mileage after the truck started having problems. Kerr contacted the Oklahoma Used Motor Vehicle and Parts Commission, which discovered that the true mileage was 105,000. Kerr proceeded to file an action against A&G and the previous owner, alleging violation of the Odometer's Act. The previous owner settled, and Kerr proceeded against A&G. The trial court entered judgment in favor of Kerr for $6,000 and attorney fees.

A&G then filed the present appeal, asserting the evidence was insufficient to support the judgment. In affirming the trial court, the court concluded that A&G failed to affirmatively discover defects in the title. The court noted that federal odometer law imposed a duty on automobile dealers to discover defects. The court also noted that to impose liability, the dealer must have acted with "reckless disregard."

Eastern State Hospital/Oklahoma Department of Mental Health and the State Insurance Fund vs. Jeannie M. Swineheart and the Workers Compensation Court, No. 93,067.

Swineheart was injured when she tried to return a patient to the hospital grounds on her lunch break. Swineheart sought benefits for temporary total disability and permanent partial disability. In response, the hospital alleged that Swineheart's injury did not arise out of her employment. The trial court awarded Swineheart benefits, and a three-judge panel of the Workers Compensation Court affirmed the trial court's order.

The court on appeal sustained the order, finding there was competent evidence to support the order. The court, in its opinion, noted that for an injury to arise out of employment, there must be a causal relationship between the act the claimant is engaged in when the injury occurred and the requirements of the claimant's employment. Finally, the court stated that to be compensable, the risk must be in one of three categories. In this case, the curb fit into the category of neutral risk, and thus compensable.

Oklahoma Court of Criminal Appeals

For the week ended Nov. 2

Nicky Lee Shrum vs. State of Oklahoma, No. F-98-497

Shrum was convicted of one count of first-degree heat of passion manslaughter. The trial court sentenced Shrum to 25 years imprisonment. Shrum appealed the conviction, arguing that heat of passion manslaughter is not a lesser included offense of first- degree malice murder, the crime with which he was charged. The court on appeal concluded the evidence presented at trial supported the jury instruction, and therefore, the trial court did not err in administering a heat of passion manslaughter instruction

U.S. 10th Circuit Court of Appeals

For the week ended Oct. 26

U.S. vs. Ernest Glenn Ambort, John W. Benson, William J. Lewis, Steven W. Stay, and Nona S. Egbert and Merrill B. Hansen, No. 99- 4066

The defendants appealed an order of the district court denying their motion to dismiss the indictment. They were indicted on one count of conspiracy to defraud the United States by assisting in the preparation of false tax returns, in violation of 18 U.S.C. Section 371. The defendants operated a business known as Association de Libertas, which conducted seminars that explained to attendees that they were "nonresident aliens" exempt from most federal taxes. The court on appeal dismissed the appeal concluding that immediate review was unnecessary since the rights contended for were adequately protected by appeal after any adverse final judgement. The defendants had appealed before they had been tried on the conspiracy count.