Powell v. State, ex rel. Dept. of Mental Health

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Powell v. State, ex rel. Dept. of Mental Health
1988 OK CIV APP 18
770 P.2d 903
Case Number: 69293
Decided: 12/13/1988

MARVIN POWELL, ADMINISTRATOR OF THE ESTATE OF VERA POWELL, DECEASED, VERNON POWELL, MARVIN POWELL, SHARON SMITH, RAYMOND POWELL, AND GLEN POWELL, APPELLANTS,
v.
STATE OF OKLAHOMA, EX REL. DEPARTMENT OF MENTAL HEALTH, APPELLEES.

Appeal from the District Court of Oklahoma County; Bryan C. Dixon, Trial Judge.

Jess Horn, Michael R. Martin, Crowley, Butler, Pickens & Martin, Enid, for appellants.
Robert H. Henry, Atty. Gen. and Cathy Clinton Dabney, Asst. Atty. Gen., Oklahoma City, for appellees.

SUMMARY OPINION

BACON, Judge.

¶1 This court has reviewed the record on appeal and the briefs of the parties, and having duly considered the same, finds that the judgment of the trial court should be and is hereby summarily affirmed pursuant to Civil Appellate Procedure Rule 1.202(d), 12 O.S.Supp. 1987, ch. 15, app. 2.

¶2 The decision to release or petition for involuntary commitment is a discretionary act and therefore exempt from liability under 51 O.S.Supp. 1987 § 155 (5).

¶3 AFFIRMED.

¶4 RAPP, J., concurs.

¶5 BRIGHTMIRE, P.J., dissents.

BRIGHTMIRE, Presiding Judge, (dissents)

¶1 In my opinion the facts pleaded by the plaintiffs do not bring the state within any of the exemptions set out in 51 O.S.Supp. 1987 §§ 155 (4) and (5) , and reading them in context of all 28 exemptions leads me to conclude that neither (4) nor (5) was intended to cover the factual situation we have here, and neither does.

¶2 Nor does the relevant case law interpreting the Governmental Torts Claims Act in my opinion require dismissal of the plaintiffs' case against the state. See implications arising from Burns v. Radar, 723 P.2d 266 (Okl. 1986); Hershel v. University Hospital Foundation, 610 P.2d 237 (Okl. 1980); and Griggs v. State of Oklahoma ex rel. Department of Transportation, 702 P.2d 1017 (Okl. 1985).

¶3 Moreover, none of the other arguments of the state in defense of the trial court's ruling have merit in my view.

¶4 Finally, the state's motion to dismiss this appeal should be denied.

¶5 I would reverse the trial court's order of dismissal and remand for further proceedings.