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.
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.
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
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
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
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
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
whose parents subsequently voluntarily place him in a private
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
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
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
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. …