Holman By and Through Holman v. Wheeler, s. 57052
| Decision Date | 21 June 1983 |
| Docket Number | Nos. 57052,56708,s. 57052 |
| Citation | 677 P.2d 645,1983 OK 72 |
| Parties | 16 Ed. Law Rep. 658, 1983 OK 72 David Wayne HOLMAN, a minor child By and Through his Guardian Ad Litem, Johnnie L. HOLMAN, and Johnnie L. Holman, Appellants, v. Bob WHEELER, Appellee. |
| Court | Oklahoma Supreme Court |
Appeal from District Court, Okmulgee County; John Maley, District judge.
The district court sustained appellee's demurrer to appellants' petition on the theory that appellants' action was subject to the provisions of The Political Subdivision Tort Claims Act (51 O.S.1981, §§ 151 et seq.) and that appellants had failed to file the written notice of the claim as required by the Act. Appellants elected to stand on their petition and the cause was dismissed. Appellants appealed.
REVERSED.
Duane A. Woodliff, Henryetta, for appellants.
John G. Moyer, Jr. and Louis C. Pappas, Rosenstein, Fist & Ringold, Tulsa, for appellee.
This case involves a tort action against a school superintendent (appellee) who allegedly spanked and beat a 10-year-old student with unnecessary and excessive force while administering school discipline. The issue presented is whether the superintendent is entitled to invoke the provisions of The Political Subdivision Tort Claims Act (51 O.S.1981, §§ 151 et seq.) as a defense.
Appellants made no attempt to comply with the Tort Claims Act. Appellee demurred to the petition on the grounds that the Act was applicable and that appellants' petition was insufficient to state a cause of action because it failed to allege that the written notice of the claim was filed as required by the act.
The trial court sustained appellee's demurrer and dismissed the action. Appellants appealed.
Appellants alleged that appellee's acts were unlawful, outside the scope and course of his employment, and constituted a willful assault and battery upon the minor plaintiff, to which appellants at no time agreed or consented, and which were wholly without cause or justification. Appellants further alleged that the plaintiff child was involved in "a minor scuffling" with another child and that the children's teacher disciplined both children. The petition then alleged:
"That thereafter the Defendant, Bob Wheeler, entered the school building while in a state of alcoholic intoxication, and proceeded to again punish the other child by spanking said child 2 times; and then proceeding in a violent manner, and in a fit of intoxicated rage, proceeded to spank and beat the Plaintiff child, with unnecessary and excessive force; that said child reacted by crying; that said Defendant threatened said child by pointing the paddle at the child's face, and told him to stop crying or said Defendant would hit said child between the eyes with the paddle; that said Plaintiff child was thereafter treated by medical personnel at the Henryetta Clinic for bruises and for pain, anguish, extreme anxiety and nervousness."
Section 153 of the Act provides that each political subdivision of the state shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment or duties subject to the limitation specified. Section 154 specifies the limitations of liability.
Appellee contends he was acting within the scope of his employment when he administered the punishment and that his acts and conduct were within the purview of the Tort Claims Act. He asserts the trial court's decision must be affirmed because appellants failed to give the necessary notice required by the Act.
Appellee argues he was an employee of a political subdivision when the alleged disciplinary action occurred; and that the Tort Claims Act extends to all claims for loss arising from the torts of employees of a political subdivision who are acting within the scope of their employment. Appellee's position is that he was simply administering discipline which is statutorily authorized.
Under 70 O.S.1981, § 6-114 a teacher has the same rights as a parent or guardian to control and discipline a child attending a public school. Section 1-116(1) and (2) includes a superintendent in the definition of "teacher". 21 O.S.1981, § 844, recognizes the right to discipline a child in that any parent or teacher may use ordinary force as a means of discipline, including but not limited to spanking, switching or paddling. However, the right of a parent to control and discipline his or her child does not give the parent the right to mistreat or abuse the child. 10 O.S.1981, § 9, provides for a civil action for abuse of parental authority. 21 O.S.1981, § 843,...
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...v. City of Henryetta, see note 16, supra, were Parker v. City of Midwest City, 1993 OK 29, 850 P.2d 1065 and Holman By and Through Holman v. Wheeler, 1983 OK 72, 677 P.2d 645. Neither of these cases were dispositive of Nail's claim. In Parker, supra, this Court addressed the question of whe......
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