Smith v. Oral Roberts University

Supreme Court of Oklahoma

Smith v. Oral Roberts University

1986 OK 79, 732 P.2d 450, 1986 Okla. LEXIS 204

CourtSupreme Court of Oklahoma

DecidedDecember 9, 1986

DocketNo. 62785

StatusPublished

Cited by3 cases

This text of 1986 OK 79 (Smith v. Oral Roberts University) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Smith v. Oral Roberts University, 1986 OK 79, 732 P.2d 450, 1986 Okla. LEXIS 204 (Okla. 1986).

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Opinion

ALMA WILSON, Justice:

Certiorari to the opinion of the Court of Appeals was granted only on petition of the appellee, City of Tulsa, to consider whether the Political Subdivision Tort Claims Act, 51 O.S. 1981 § 151, et seq., exempts the City of Tulsa from liability in this wrongful death action.

The widow of Charles Smith alleged in the alternative that her husband’s death was the result of the City’s failure to remove or to require the removal of vegetation, located on private property. This vegetation, on the date of her husband’s death, purportedly obstructed the view of motorists on the Tulsa streets forming the intersection at which the fatal accident occurred. The City of Tulsa interposed a special demurrer to the widow’s petition, invoking exemptions provided by the Political Subdivision Tort Claims Act. The trial court sustained the City’s demurrer and the Court of Appeals reversed. We reverse and vacate that part of the Court of Appeals opinion as it relates to the special demurrer of the City of Tulsa.

Section 155 of the Political Subdivision Tort Claims Act, supra, in relevant part, states:

“A political subdivision or an employee acting within the scope of his employment shall not be liable if a loss results from:

4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including but not limited to, any charter provision, ordinance, resolution, rule, regulation or written policy; ...” [Emphasis ours.]

In the case now before us the City of Tulsa, no doubt, could have removed or required the removal of the offending vegetation on private property under the auspices of its local nuisance ordinances had it been apprised of the condition. However, the City is without liability as regards adoption, enforcement or failure of its ordinance. The applicability of statutory exemption, supra, entitled the City to the sustainment of its demurrer as it related to the alternative pleading of appellant’s first amended petition alleging liability on the part of the City for the failure to remove or require the removal of the visual obstruction from private property. The first amended petition, however, is sufficient to state a theory upon which relief might be [452]*452granted insofar as it alleges liability for the negligent maintenance of a dangerous condition on the part of the City on land possessed and/or controlled by the City.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF APPEALS REVERSED AS TO PART III; JUDGMENT OF TRIAL COURT SUSTAINING DEMURRER AS TO CITY OF TULSA AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.

HARGRAVE, V.C.J., LAVENDER, OPALA, WILSON, KAUGER and SUMMERS, JJ., concur. HODGES and SIMMS, JJ., dissent.

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ALMA WILSON, Justice:

Certiorari to the opinion of the Court of Appeals was granted only on petition of the appellee, City of Tulsa, to consider whether the Political Subdivision Tort Claims Act, 51 O.S. 1981 § 151, et seq., exempts the City of Tulsa from liability in this wrongful death action.

The widow of Charles Smith alleged in the alternative that her husband’s death was the result of the City’s failure to remove or to require the removal of vegetation, located on private property. This vegetation, on the date of her husband’s death, purportedly obstructed the view of motorists on the Tulsa streets forming the intersection at which the fatal accident occurred. The City of Tulsa interposed a special demurrer to the widow’s petition, invoking exemptions provided by the Political Subdivision Tort Claims Act. The trial court sustained the City’s demurrer and the Court of Appeals reversed. We reverse and vacate that part of the Court of Appeals opinion as it relates to the special demurrer of the City of Tulsa.

Section 155 of the Political Subdivision Tort Claims Act, supra, in relevant part, states:

“A political subdivision or an employee acting within the scope of his employment shall not be liable if a loss results from:

4. Adoption or enforcement of or failure to adopt or enforce a law, whether valid or invalid, including but not limited to, any charter provision, ordinance, resolution, rule, regulation or written policy; ...” [Emphasis ours.]

In the case now before us the City of Tulsa, no doubt, could have removed or required the removal of the offending vegetation on private property under the auspices of its local nuisance ordinances had it been apprised of the condition. However, the City is without liability as regards adoption, enforcement or failure of its ordinance. The applicability of statutory exemption, supra, entitled the City to the sustainment of its demurrer as it related to the alternative pleading of appellant’s first amended petition alleging liability on the part of the City for the failure to remove or require the removal of the visual obstruction from private property. The first amended petition, however, is sufficient to state a theory upon which relief might be [452]*452granted insofar as it alleges liability for the negligent maintenance of a dangerous condition on the part of the City on land possessed and/or controlled by the City.

CERTIORARI PREVIOUSLY GRANTED; OPINION OF COURT OF APPEALS REVERSED AS TO PART III; JUDGMENT OF TRIAL COURT SUSTAINING DEMURRER AS TO CITY OF TULSA AFFIRMED IN PART, REVERSED IN PART AND CAUSE REMANDED.

HARGRAVE, V.C.J., LAVENDER, OPALA, WILSON, KAUGER and SUMMERS, JJ., concur. HODGES and SIMMS, JJ., dissent.

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Bluebook (online)

1986 OK 79, 732 P.2d 450, 1986 Okla. LEXIS 204, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-oral-roberts-university-okla-1986.

Opinion

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