INTRODUCTION

The Oklahoma Governmental Tort Claims Act (OGTCA) represents the efforts of the Legislature to set public policy that seeks to balance the monetary strain on the public purse from allowable tort claims with when and what level of relief will be available to injured claimants when those injuries are sustained by negligent or tortious conduct of governmental employees. Originally, the Legislature enacted the Political Subdivision Tort Claims Act of 1978, which laid out the structure for how claimants who were injured by the tortious conduct of governmental employees could seek relief in certain circumstances. That 1978 act was replaced in 1985 with the Governmental Tort Claims Act. Since 1978, there have been over 20 amendments to the Oklahoma Statutes governing this area of the law. This article will explore the history and parameters of this ongoing discussion between the courts and the Legislature.

 

BACKGROUND

Though its origins can be traced to Old English law, the OGTCA concerns important areas of potential state, county and municipal liability today. In 1765, Sir William Blackstone, the most widely read author in Revolutionary America, wrote, “The king, moreover, is not only incapable of doing wrong, but of thinking wrong. He can never mean to do an improper thing.”¹ Today, Sir Blackstone’s idea is known as sovereign immunity and was made the law of the land in the United States through the 11th Amendment.² This statement of the king’s infallibility was further interpreted under Oklahoma law by Justice Lavender in Vanderpool v. Oklahoma Historical Society,³ in which it was stated, “It is not that the king can do no wrong, but more appropriately, even if the king does something wrong that harms another, he cannot be sued for his wrongdoing without his permission.”⁴

In Oklahoma, a state with a strong populist history, this doctrine of governmental immunity did not set so well and was under much review and criticism in the 1970s. Originally, the Legislature enacted the Political Subdivision Tort Claims Act of 1978, which laid out the structure for how claimants who were injured by the tortious conduct of governmental employees could seek relief in certain circumstances. The Political Subdivision Tort Claims Act of 1978 allowed the government to be sued in certain circumstances but embodied much of early Oklahoma jurisprudence that recognized some functions as “governmental” versus “proprietary” functions. Governmental functions were identified as those functions that embodied policy-making decisions with suit not being allowed in those instances, while proprietary functions were identified as operational-type functions for which suit could be allowed. The lines between these two categories blurred over the years and became more and more heavily scrutinized by legal scholars and the courts.⁵

In 1983, the Oklahoma Supreme Court in Vanderpool determined the doctrine of sovereign immunity was no longer viable in the state and ruled for a plaintiff who suffered a severe injury from a rock thrown by a mower that was mowing the grounds of the Oklahoma Historical Society – an act of clear negligence that resulted in severe injury. Interestingly, the Oklahoma Supreme Court made its ruling prospective to Oct. 1, 1985, for future cases to give the Oklahoma Legislature an opportunity to address the doctrine of sovereign immunity. Although the Legislature had previously adopted the Political Subdivision Tort Claims Act in 1978 addressing this same subject, it did not take the Oklahoma Legislature long to respond to the Oklahoma Supreme Court’s invitation to take a second look, and the OGTCA was adopted and codified in Title 51, Section 151-Section 172 of the Oklahoma Statutes in 1985.  The OGTCA⁶ expressly provides:

The State of Oklahoma does hereby adopt the doctrine of Sovereign Immunity. The state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts. The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions. In so waiving immunity, it is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution.⁷

As political subdivisions, the OGTCA generally immunizes municipalities from tort liability. To determine whether a city or town is immune from liability, the complained-of conduct or occurrence must fall within the definition of a tort itself. A “tort” is “a legal wrong, independent of contract, involving violation of a duty imposed by general law, statute, the Constitution of the State of Oklahoma, or otherwise, resulting in a loss to any person, association or corporation as the proximate result of an act or omission of a political subdivision or the state or an employee acting within the scope of employment.”⁸ Cities may commit a tort against an individual or other entity when the harm is committed “through an employee, agent, or instrumentality under [municipal] control.”⁹ However, under the provisions of the OGTCA, a city will not be liable to the injured party in certain circumstances.¹⁰

Torts may be intentional, unintentional (negligence) or strict liability, but to be actionable, all require some sort of harm or damages. An intentional tort may be committed by a municipality when the government actor had knowledge with substantial certainty that a tort would occur. An unintentional tort may occur when a municipality fails to use reasonable care in the performance of a duty owed to a potential plaintiff.¹¹ This is known as negligence, and the claim requires the plaintiff to prove that the city’s conduct was the cause of their damages. Strict liability torts impose liability without regard to the actor’s state of mind. For each type of tort, the OGTCA allows sovereign immunity to be raised as a defense.¹²

 

WAIVER OF IMMUNITY

Although the OGTCA codifies the concept of sovereign immunity, the statute also waives doctrinal immunity for municipalities in certain circumstances, thus allowing a plaintiff to hold a city or town legally responsible for their damages. The OGTCA applies to claims for “money damages” and is the exclusive avenue for liability. In more recent enactments, the Legislature has made it clear that liability must emanate from the OGTCA, not from “common law,” not from other statutes and not from the Oklahoma Constitution or otherwise.<¹³ Thus, “The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in The Governmental Tort Claims Act.”¹⁴ Under the act, an employee is “any person who is authorized to act on behalf of a political subdivision or the state whether that person is acting on a permanent or temporary basis, with or without being compensated or on a full-time or part-time basis,” including elected or appointed officers.¹⁵ An employee is acting within the scope of their employment when they are “acting in good faith within the duties of the [their] office or employment or of tasks lawfully assigned by a competent authority.”¹⁶ Recovery is allowed for money damages. Normally, only the municipality is a proper party. Governmental employees are immune from liability and cannot be sued if they are acting in good faith and within the scope of their employment.¹⁷ "Scope of employment … shall not include corruption or fraud.”¹⁸

Accordingly, if torts are committed by city employees outside the course and scope of the employee’s duties, the city is not liable. In that instance, a city employee may be individually liable. Examples of such “bad faith” action include:

• Defamation
• Malicious prosecution
• Intentional infliction of emotional distress
• Assault and battery

For example, in Parker v. Midwest City, the court ruled that because malicious prosecution involves an element of malice, which is inconsistent with good faith, there could be no municipal liability.¹⁹

Sometimes determination of good or bad faith can be a fact question for the trier of facts. In Nail v. City of Henryetta, the court ruled that shoving a person during an arrest involves a fact question about course and scope. The arrest was within the scope of employment, but a fact issue remained whether the shove went beyond the scope of employment, thereby putting the officer outside of the scope of employment at that time.²⁰

In some cases, liability of both the municipality and the employee is possible. In Decorte v. Robinson, punitive damages were assessed against an officer while also rendering a verdict against the city. The officer was found liable for assault and battery, while the city was found liable for false arrest. The officer did not appeal the verdict, but the city did appeal, arguing the award of punitive damages required bad faith and thus showed the officer was outside the scope of employment. The Oklahoma Supreme Court found it was possible to have falsely arrested the suspect within the course and scope of employment, while also moving outside the course and scope as to the assault and battery.²¹

 

EXEMPTIONS FROM WAIVER OF IMMUNITY

Despite the waiver of municipal immunity, §155 of the OGTCA contains 37 exemptions from the waiver, meaning the city shall not be liable if the claim results from one of the listed exemptions.²² A good discussion of how these exemptions could be grouped at the time of passage of the OGTCA in 1974 can be found in a Tulsa Law Review article cited below.²³ The legal scholar who wrote that article categorized the 28 exemptions for liability included in the 1985 act into four different categories: governmental, police – military, transportation – weather, and miscellaneous. There are now, in 2020, 37 listed exemptions.

The governmental category of exemptions focuses more on what is considered basic governmental functions that involve the use of judgment or discretionary actions, which are considered essential for a government to function. Often, governmental decisions are politically contested, such as legislative actions. Some governmental actions require finality and respect for decision-making processes, where the ability to sue regarding decisions one simply does not agree with would bog down the system and make it unworkable. The exemptions in this category cover the following:

• Legislative, judicial, quasi-judicial or prosecutorial functions
• Execution or enforcement of any lawful court orders
• Adoption or enforcement of or the failure to adopt or enforce any law, whether or not such law is valid
• Assessment or collection of any taxes or fees
• Licensing or inspection powers
• Claim relating to the placement of children
• Discretionary powers or functions
• Court-ordered community sentence

Governmental actions that fall into these areas, even if considered tortious or injurious to others, are still shielded by sovereign immunity due to the specific exemptions from liability in these areas contained in the OGTCA.

The second general category of exemptions, police – military, recognizes that there are certain circumstances where the police, fire departments and military need to be able to act and react without exposure to civil liability. The exemptions are outlined as follows:

• Civil disobedience, riot, insurrection or rebellion or the failure to provide, or the method of providing, police, law enforcement or fire protection
• Express or implied lawful entry onto any property
• Operations at any correctional or incarceration facility
• Tortious conduct relatedto any court-ordered or administered work release program
• Activities administered by the Military Department of the state during a riot, national disaster or military attack
• Provision, equipping, operation or maintenance of any juvenile detention facility or injuries resulting from the escape of a juvenile detainee or injuries by a juvenile detainee to any other juvenile detainee

Governmental actions that fall into these areas, even if considered tortious or injurious to others, are still shielded by sovereign immunity due to the specific exemptions from liability in these areas contained in the OGTCA.

The transportation – weather category of exemptions from liability recognizes a very practical consideration of not holding a governmental entity liable for weather conditions over which the government has no control, or whether to initially construct a particular roadway or public work, or whether to initially place a traffic control device at a particular location, or from roadway defects for which the governmental entity has no notice and a reasonable time to either correct the problem or warn of the potentially hazardous condition. There is also a special exemption for state highways whose condition remains unchanged since 1985. These exemptions include:

• Accidents or events occurring on public ways or in public places due to weather conditions (snow or ice or flooding)
• Claims or losses resulting from the maintenance of state highways
• Claims or losses relating to the operation or non-operation of traffic signs and signals, unless failure to correct within a reasonable time after notice
• The initial placement, alteration or change of traffic signs or signals, based on the fact that such decisions are discretionary
• Actions or recoveries against the Oklahoma Transportation Commission from pre-existing defects or dangerous conditions, whether known or unknown, from the effective date of the act (Oct. 1, 1985) (§155.1)

Governmental actions that fall into these areas, even if considered tortious or injurious to others, are still shielded by sovereign immunity due to the specific exemptions from liability in these areas contained in the OGTCA.

The next set of exemptions was categorized as miscellaneous, as they do not fall into either of the three prior categories but do provide significant protection to governmental entities for torts of its employees that arise all in these situations:

• Workers’ compensation or employers’ liability acts (as there are separate statutory enactments that cover these situations)²⁴
• Claims that are limited or barred by law
• Acts or omissions that conform "with then current recognized standards”
• Act or omission of independent contractors
• Product liability or breach of warranty
• Theft of money left in the custody of a government employee
• Attractive nuisance
• Unintentional misrepresentations
• The natural condition of unimproved property
• Claims arising from interscholastic and other athletic contests

Governmental actions that fall into these areas, even if considered tortious or injurious to others, are still shielded by sovereign immunity due to the specific exemptions from liability in these areas contained in the OGTCA.

In addition to the exemptions from liability that were enumerated in 1985 with the passage of the OGTCA, there have been a handful of additional exemptions added by the Legislature since that time. Those include:

• Additional school protections:
  • Participation in approved activity in school buildings or on the grounds before or after normal school hours or on weekends of indoor or outdoor school property and facilities made available for public recreation before or after normal school hours or on weekends or school vacations
  • School district employee for controlling a student during school or in transit or other authorized school function and the out-of-school suspension of a student
• Use of a public facility opened to the general public during an emergency
• Action and related maintenance of property under environmental remediation requirement of a federal or state environmental agency
• Indemnification or subrogation

Like the others discussed, governmental actions that fall into these areas, even if considered tortious or injurious to others, are still shielded by sovereign immunity due to the specific exemptions from liability in these areas contained in the OGTCA.

Under this statutory scheme, analysis of the claim starts with the recognition that the governmental entity is immune from tort liability under the doctrine of sovereign immunity. However, the immunity is waived if the claim is for money damages due to tortious conduct of a governmental employee who is acting in good faith within the scope of employment, and the tortious conduct is the proximate cause of the damage. Then, the claimant may only recover money damages if the tortious conduct is not otherwise exempt from liability as defined in §155. If the tortious conduct does not fall into an exemption, the municipality can only be liable to the extent provided for in the OGTCA.   

 

LIABILITY LIMITS

The maximum amount recoverable for a property damage-related claim is capped at $25,000 per single act or occurrence, while any other loss is capped at $125,000 for a single act or occurrence. However, the liability cap for cities with populations above 300,000 (currently Oklahoma City and Tulsa) is set at $175,000.²⁵ There is also an aggregate cap of $1 million for any number of claims arising out of a single occurrence or accident. If the aggregate cap is insufficient to compensate for damages from the single occurrence, the aggregate cap may be pled into district court for a fair and equitable apportionment among the injured parties. Property damage claims allow for recovery of costs and attorneys’ fees, but the $25,000 cap includes these costs and attorneys’ fees that could be assessed. Punitive damages, or those meant to punish a city for its tortious conduct, may not be awarded.²⁶The OGTCA liability caps are only applicable to governmental liability. These caps will not apply if a governmental entity has obtained private insurance that is in excess of the statutory caps.

 

PROCEDURE

For an injured party to take advantage of the waiver of tort immunity available for injuries caused by governmental entities, the procedural rules outlined in the OGTCA must be followed. To be successful, a claimant must follow the rules.

Procedural rules: 51 O.S. §156

• A claim must be filed within one year of the date of loss (or it is forever barred). This OGTCA provision contrasts with a two-year statute of limitation for torts committed by nongovernmental entities.²⁷
• The OGTCA notice requirements are jurisdictional in nature.²⁸
• A claim must be in writing and filed with the clerk of the governing body. The tort claim must include:
  • Municipality or governmental entity involved
  • Date, time, place, circumstances of the loss
  • Amount of compensation requested
  • Information necessary to meet reporting requirements for the Medicare Secondary Payor Act (MSPA)
  • Claimant contact information
  • Settlement agent contact information

Failure to state most, if not all, of these items is not fatal to the claim unless it is not provided after being requested. There are some exceptions to the filing requirements:

• A claimant may have a 90-day extension due to incapacity from the injury.
• In a wrongful death action, a personal representative has one year from date of death to file the claim.

Once a claim has been properly filed, under §157, a municipality has 90 days to review the claim. The municipality has two options:

• Deny the claim outright, provided written notice is given to the claimant; or
• If the municipality takes no action, the claim will be deemed constructively denied after 90 days.

Once a claim is denied (actual or constructive), the claimant must file a lawsuit within 180 days.  Although there has been a series of cases over the years regarding settlement discussions that may extend the time for filing a lawsuit, the current provision in the statute provides that the parties may extend the time to file the lawsuit during a period of continuing settlement discussions as long as it is in writing, and in no event may the time to file the lawsuit be extended longer than two years from date of loss.²⁹

Summarizing the procedural rules under the OGTCA, any person having a claim against a city or town must properly “present” their claim within one year of the date of loss.³⁰ A potential claimant must file their claim, in writing, with the proper municipal official, typically the city clerk.³¹ A person may not initiate a suit in tort against a city until their claim has been denied. If the city fails to approve a claim within 90 days of receipt, it will be deemed denied.³² After denial, a claimant has 180 days to file a suit against the city.³³

 

INTERACTION BETWEEN THE COURTS AND THE LEGISLATURE

On a final note, since the Tort Claims Act is a public policy statement by the Legislature concerning the extent of the waiver of the doctrine of sovereign immunity (i.e., historically there was no tort liability of the government to injured claimants until 1978), it is very important that one pay close attention to cases that construe the meaning of specific provisions of the OGTCA comparing that language to the current language of the OGTCA. In its time since 1978, and then its replacement in 1985, there have been many instances where a particular construction of OGTCA language by the Oklahoma appellate courts was followed by a change in language by the Legislature in the legislative sessions following a particular court decision.

A fairly recent example of this dynamic is highlighted in Payne v. Kerns.³⁴ In that case, a prisoner brought an action against the sheriff and county jail administrator alleging civil rights violations, including violation of state constitutional prohibition against cruel or unusual punishment, arising from his extended incarceration past his sentence expiration. In a prior case, Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, the Oklahoma Supreme Court recognized an actionable Oklahoma Constitution tort that was not addressed by the OGTCA. Following Bosh, the Legislature amended the OGTCA to make it clear that constitutional torts, such as those recognized in Bosh, fell under the OGCTA. In Payne, the Oklahoma Supreme Court, in holding the prisoner’s private right of action for cruel or unusual punishment at the time of his delayed release was still viable, noted the alleged tort occurred after Bosh but prior to legislative enactment barring constitutional torts under the OGTCA.

So the tortious conduct occurred during a narrow period of time between when the Oklahoma Supreme Court recognized a private action and the Oklahoma Legislature, as a matter of public policy, amended the language of the Tort Claims Act to close that window.³⁵ Legislative amendments to the OGTCA following an appellate court decision have occurred many times over the years as the public policy conversation continues at the Legislature to set the parameters for protecting the public purse (taxpayer dollars) balanced with when, how and at what level recovery will be available to citizens who are injured due to the tortious conduct of employees of governmental entities in the state of Oklahoma. For this reason, it is important to compare the language construed in cases to the language in the statute at the time the tortious conduct is alleged to have occurred to determine whether the court’s ruling is construing statutory language that has since been modified by the Legislature.

 

CONCLUSION

The OGTCA waives sovereign immunity, providing for limited recovery for an injured claimant caused by tortious conduct of governmental employees. However, the OGTCA also provides significant protection for cities and towns from such liability.

Sovereign immunity is an Old English law doctrine that was firmly seated in American jurisprudence that stood for the axiom, “The King can do no wrong.” In Oklahoma, the OGTCA asserts sovereign immunity but then provides a limited waiver of that immunity if a claimant follows both the procedural rules, such as filing requirements, and shortened limitation periods and respects liability limits. Governmental employees acting in good faith are protected both from suit and liability. The OGTCA is the Legislature’s effort to balance taxpayer dollars with available remedies for governmental tortious conduct. This public policy discussion is ongoing, and a legal practitioner would be well-served to compare statutory language being construed by court decisions with statutory language in effect at the time the alleged injury from tortious governmental employee conduct occurred. The Legislature may very well have rebalanced the public interest between providing compensation to injured citizens with protecting the public purse holding taxpayer dollars.

Author’s Note: The Oklahoma Association of Municipal Attorneys (OAMA) is an organization of municipal attorneys whose primary mission is to provide those across the state of Oklahoma who are practicing municipal law with resources to assist them in providing sound advice to the cities and towns they represent. OAMA has established a program that provides such information accessible through the OAMA website at www.okmunicipalattorneys.org.

 

ABOUT THE AUTHOR

Jeff Harley Bryant has served as director of Legal Services/associate general counsel for Oklahoma Municipal Assurance Group since 2019. Retiring in 2018, he served as city attorney for the city of Norman, rounding out a 32-year municipal law career. He is a Rotarian, United Way board member and a Leadership Oklahoma graduate.

 

 

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1. Robert G. Spector, “State Sovereign Immunity in Tort: Oklahoma’s Long and Tortuous Road,” 34 Okla. L. Rev. 526 n. 6 (1981).
2. U.S. Constitution, Amendment XI.
3. Vanderpool v. Oklahoma Historical Society, 1983 OK 82, 672 P. 2d 1153.
4. Id.
5. George J. Meyer, “Sovereign Immunity for Tort Actions in Oklahoma: The Governmental Tort Claims Act,” 20 Tulsa L. J. 561, p. 568 (2013).
6. Title 51 Oklahoma Statutes §§151 – Section 172.
7. Okla. Stat. tit. 51, §152.1.
8. Okla. Stat. tit. 51, §152 (14).
9. Tort, Black's Law Dictionary (11th ed. 2019).
10. Okla. Stat. tit. 51, §152.1 (2011).
11. Kampus v. Town of Granite, 2022 OK 45, wherein the Oklahoma Supreme Court ruled a town has no duty to secure a headstone in a town-operated cemetery where the town did not own the headstone.
12. Okla. Stat. tit. 51 §151.2 (2011).
13. See Act of April 21, 2014, ch. 77, §§1-2, 2014 O.S.L. 245, 249-250 (codified at 51 O.S. Supp. 2014 §§152(4), 153(B)).
14. Okla. Stat. tit. 51 §153 (2011).
15. Okla. Stat. tit. 51 §151 (7) (2011).
16. Okla. Stat. tit. 51 §152 (12) (2011).
17. Okla. Stat. tit. 51 §152 (7).
18. Okla. Stat. tit. 51 §152 (12) (2011).
19. Parker v. Midwest City, 1993 OK 29.
20. Nail v. City of Henryetta, 1996 OK 12.
21. Decorte v. Robinson, 1998 OK 87.
22. Okla. Stat. tit. 51 §155 (1)-(37) (2011).
23. George J. Meyer, “Sovereign Immunity for Tort Actions in Oklahoma: The Governmental Tort Claims Act,” 20 Tulsa L. J. 561 (2013).
24. Farley v. City of Claremore 2020 OK 30, 465 P. 3d 1213.
25. Okla. Stat. tit. 51 §154 A.
26. Okla. Stat. tit. 51 §154 (C) (2011).
27. Okla. Stat. tit. 12 §95(3).
28. See Crawford v. OSU Medical Trust, 2022 OK 5 stating, “Notice was untimely, and as a result, the Plaintiff’s claims against OSUMC are forever barred. We affirm dismissal of OSUMC for lack of jurisdiction.”
29. Okla. Stat. tit. 51 §157(B) (1995).
30. Okla. Stat. tit. 51 §156 (2011).
31. Okla. Stat. tit. 51 §156 (D) (2011).
32. Okla. Stat. tit. 51 §157 (A) (2011).
33. Okla. Stat. tit. 51 §157 (B).
34. Payne v. Kerns, 2020 OK 31, 467 P.3d 659.
35. See also Rocket Properties v. LaFortune, 2022 OK 5, wherein a unanimous Supreme Court held, “The question before this Court is whether the GTCA applies to inverse condemnation claims in light of the 2014 legislative amendments to the GTCA following this Court's decision in Bosh v. Cherokee County Gov. Building Auth., 2013 OK 9, 305 P.3d 994. We hold that it does not … condemnation proceedings do not involve a tort. Condemnation involves the taking of private property for public use.”