No. CIV-97-113-B

DOUGLAS G. DRY, JUANITA
McCONNELL and ROSIE BURLISON,

Plaintiffs,

vs.

UNITED STATES OF AMERICA, et al., Defendants.

COME NOW the Defendants City of Talihina, Oklahoma, Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels by and through their attorneys of record, Steidley & Neal, and for their Amended Answer to the Plaintiffs' Complaint allege and state as follows:

1) These Defendants are without sufficient information or belief to either admit or deny the allegations in numerical paragraphs 1, 2, 4, 5, 6, 10-15, 18-25, 33-42, 44-47, 49, 50, 52-57, 59-61, 63, 64, 66, 67 (inclusive of subparts 1-5), 68-70, 72-75, 93-104, 106-111, 113, 114 (inclusive of subparts 1-5), 115-117, 119-134, 136-141, 143, 144 (inclusive of subparts 1-5), 145-147, 149-152, 155-164, 167-170, 172-174 of the Plaintiffs' Complaint and demand strict proof of same.

2) These Defendants admit the allegations in numerical paragraphs 3, 7, 8, 9, 16, 17, 2732, 43, 62, 78, 82, and 89 of the Plaintiffs' Complaint.

3) These Defendants deny the allegations in numerical paragraphs 51, 79, 83-87, 91 and 92 of the Plaintiffs' Complaint.

4) These Defendants admit that Plaintiff Dry was transported to the Talihina Police Department on September 4, 1995 as alleged in numerical paragraph 48 of the Plaintiffs' Complaint. These Defendants are without sufficient information or belief to either admit or deny the remaining allegations in numerical paragraph 48.

5) These Defendants would incorporate by reference their response to paragraphs 4557 in response to the allegations in numerical paragraph 58 of the Plaintiffs' Complaint.

6) These Defendants would incorporate by reference their response to paragraphs 4557, 58-64 in response to the allegations in numerical paragraph 65 of the Plaintiffs' Complaint.

7) These Defendants would incorporate by reference their response to paragraphs 4557, 58-64, 65-70 in response to the allegations in numerical paragraph 71 of the Plaintiffs' Complaint.

8) These Defendants would incorporate by reference their response to paragraphs 45-57, 58-64, 65-70, 71-75 in response to the allegations in numerical paragraph 76 of the Plaintiffs' Complaint.

9) These Defendants admit that Plaintiff Dry was transported to the Talihina Police Department on September 4, 1995 as alleged in numerical paragraph 77 of the Plaintiffs' Complaint. These Defendants are without sufficient information or belief to either admit or deny the remaining allegations in numerical paragraph 48.

10) These Defendants admit that Defendant England called the Choctaw Security Office as alleged in numerical paragraph 80 of the Plaintiffs' Complaint. All other allegations in numerical paragraph 80 are denied.

11) These Defendants admit that Plaintiff Dry was detained in the Talihina City Jail for approximately two hours as alleged in numerical paragraph 81 of the Plaintiffs' Complaint. All other allegations in numerical paragraph 81 are denied.

12) These Defendants would incorporate by reference their response to paragraphs 45-57, 58-64, 65-70, 71-75, 76-87 in response to the allegations in numerical paragraph 88 of the Plaintiffs' Complaint.

13) These Defendants admit that a notice of tort claim was served, deemed denied after 90 days and that the Complaint was filed within 180 days of the denial of Plaintiffs' claims as alleged in numerical paragraph 90 of Plaintiffs' Complaint. All other allegations in numerical paragraph 90 are denied.

14) These Defendants would incorporate by reference their response to paragraphs 93104 in response to the allegations in numerical paragraph 105 of the Plaintiffs' Complaint.

15) These Defendants would incorporate by reference their response to paragraphs 93104, 105-111 in response to the allegations in numerical paragraph 112 of the Plaintiffs' Complaint.

16) These Defendants would incorporate by reference their response to paragraphs 93-104, 105-111, 112-117 in response to the allegations in numerical paragraph 118 of the Plaintiffs' Complaint.

17) These Defendants would incorporate by reference their response to paragraphs 123134 in response to the allegations in numerical paragraph 135 of the Plaintiffs' Complaint.

18) These Defendants would incorporate by reference their response to paragraphs 123-134,
135-141 in response to the allegations in numerical paragraph 135 of the Plaintiffs' Complaint.

19) These Defendants would incorporate by reference their response to paragraphs 123134, 135-141, 142-147 in response to the allegations in numerical paragraph 135 of the Plaintiffs' Complaint.

20) These Defendants would incorporate by reference their response to paragraphs 93-104, 105-111, 112-117, 118-122 in response to the allegations in numerical paragraph 153 of the Plaintiffs' Complaint.

21) These Defendants would incorporate by reference their response to paragraphs 123134, 135-141, 142-147, 148-152 in response to the allegations in numerical paragraph 154 of the Plaintiffs' Complaint.

22) These Defendants would incorporate by reference their response to paragraphs 93-104, 105-111, 112-117, 118-122, 154-164 in response to the allegations in numerical paragraph 165 of the Plaintiffs' Complaint.

23) These Defendants would incorporate by reference their response to paragraphs 123134, 135-141, 142-147, 148-152, 153-164 in response to the allegations in numerical paragraph 166 of the Plaintiffs' Complaint.

24) These Defendants would incorporate by reference their response to paragraphs 45170 in response to the allegations in numerical paragraph 171 of the Plaintiffs' Complaint.

25) These Defendants deny each and every other allegation in all other causes of action not heretofore controverted.
AFFIRMATIVE DEFENSES

26) The injuries and/or damages alleged in the Plaintiffs' Complaint were caused in whole or in part by the culpable conduct, want of care and assumption of risk on the part of the Plaintiffs, and without negligence, fault or want of care on the part of these Defendants.

27) The Plaintiffs were contributorily at fault and such fault, comparatively, was the greater cause of the Plaintiffs' claimed damages than the alleged culpable conduct of these Defendants.

28) The conditions created by the Plaintiffs were the proximate cause of their alleged injuries.

29) Plaintiffs' damages, if any, are the result of causes not related to the incident in question.

30) The negligence and lack of due care of third parties, over whom these Defendants had no supervision, direction or control, was the proximate cause of the Plaintiffs' alleged damages.

31) Plaintiffs have failed to state a claim upon which relief may be granted.

32) The Plaintiffs' conduct in the facts of the instant case was an assumption of risk barring recovery.

33) The Defendants Jack England, Malcomb Wade, Niky Hibdon, Lloyd James, John Wheat and Naomi O'Daniels were acting within the scope of their authority and/or employment at the time of the alleged incident with the Plaintiffs and are thus exempt from liability under the Governmental Tort Claims Act.

34) These Defendants acting within the scope of their employment are immune from suit under the under the doctrine of sovereign immunity and waive this immunity only to the extent and manner provided by the Governmental Tort Claims Act.

35) The Defendant City of Talihina may not be held liable for more than $100,000.00 under the provisions of the Governmental Tort Claims Act to any claimant for his claim for any other loss arising out of a single accident or occurrence.

36) The Defendant City of Talihina is immune from punitive or exemplary damages in any action for damages.

37) The Defendant City of Talihina may not be held jointly liable with the CoDefendants.

38) The Defendant City of Talihina cannot be liable under the Governmental Tort Claims Act for any claims resulting from the method or manner in which law enforcement personnel were provided.

39) The individual Defendants would assert their qualified good faith immunity from suit.

40) These Defendants reserve the right to add to or amend this Answer until the time of the Pretrial Conference.

WHEREFORE, these Defendants pray for this Court grant Judgment dismissing Plaintiffs' Complaint and for such other and futher relief to which they may be entitled under the law.

Respectfully submitted,

STEIDLEY & NEAL
Attorneys for Defendants City of Talihina,
Jack England, Malcomb Wade, Niky Hibdon,
Lloyd James, John Wheat and Naomi O'Daniels

I hereby certify that on the 21st day of March, 1997, a true and correct copy of the foregoing was mailed with proper postage fully prepaid to Mr. Douglas G. Dry, Attomey at Law, P.O. Box 537, Wilburton, OK 74578.