High Court Upholds Employee Discharge

Article excerpt

Summaries of 10th Circuit and state opinions filed recently Oklahoma Supreme Court

For the week ending Nov. 18, 1997 CNA Insurance Co. vs. Krueger, Inc. of Tulsa d/b/a BMI Inc., No. 85,796. Trial court did not err when it gave jury instruction on assumption of risk. An assumption of risk defense may exist in absence of negligence on the part of the plaintiff. Because jury was not informed that a defense of assumption of risk would completely bar plaintiff's recovery and because jury also received instruction on contributory negligence, the mistake was harmless. Willard L. White and Diann R. White vs. Harold Grace, et al., No. 87,117. Title 12 section 1141 of the Oklahoma Statutes, which authorizes prevailing party attorney fee award in quiet title actions if a written request for correction of title defect has been refused without reasonable cause, applies in case where owner of land locked property makes written request to surrounding landowners -- who claim adverse possession -- to allow ingress and egress to tract. 10th U.S. Circuit Court of Appeals Fowler, et al. vs. Unified School District No. 259, Sedgwick County, Kansas, No. 95-3373. The Court previously held that the Individuals with Disabilities Education Act and the regulations thereunder, as well as Kansas law, required the defendant school district to at least partially pay for an on-site sign language interpreter for the plaintiff, Michael Fowler, a deaf child voluntarily attending a private school. The Supreme Court vacated the decision and remanded the case for further consideration in light of the IDEA Amendments of 1997 which address the scope of services to students voluntarily placed in private schools. Michael Fowler, a profoundly deaf 12-year-old boy, qualifies as a child with disabilities under the IDEA. Michael's parents placed him in a private non-sectarian school after four years at a public school and requested that the district provide interpretive services to Michael on site. The district denied the request. On appeal, the district court held that the district must pay the entire cost of such services. On appeal from that decision, the Court held that the district must pay an amount up to, but not more than, the average cost to the district to provide the same service to hearing-impaired students in the public school setting. In interpreting the IDEA Amendments, the Court found that if the local educational agency offers free appropriate education to a child whose parents subsequently voluntarily place him in a private school, the agency is not required to pay for the cost of the child's education, including any special education and related services. For such students, the local educational agency's sole obligation is to spend on such students for their participation in special education and related services, a proportionate amount of federal funds. Thus, the state need not spend any of its own funds to pay for such services; it need only allocate a portion of its federal funds. The Court held that the calculation of Michael's share of the proportionate share of federal funds made available to the district requires further factual findings necessitating a remand to the district court. United States vs. Hutchings, No. 96-1500. Defendants Shirley and Kenneth Hutchings each plead guilty to one charge of manufacturing marijuana and were each sentenced to 40 months imprisonment and a five-year supervised release. They appealed from the district court's denial of their motion to suppress evidence. The defendants claimed that law enforcement officers collected evidence against them in a manner prohibited by both the Posse Comitatus Act and the Fourth Amendment of the U.S. Constitution. The Hutchings claimed that the initial search of their land, prior to obtaining the warrant, was unconstitutional. However, the court concluded that they could not have had a justified expectation of privacy in the search of White River as it occurred on government- owned property. …

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