In Oklahoma, an employer can be held vicariously liable for the tortious acts committed by its employee if the act is “fairly and naturally incident to the business” and is done “while the servant was engaged upon the master's business ... although mistakenly or ill advisedly ... or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business.”[1] On this issue, the Oklahoma Supreme Court has made it clear that vicarious liability can be imposed even if the employee’s actions are found to “evince a wanton or reckless disregard for the rights of another, oppression, fraud or malice” for the purposes of awarding punitive damages.[2]

The passage of the Political Subdivision Tort Claims Act in 1978, the predecessor to the Oklahoma Governmental Tort Claims Act (the GTCA or collectively “the act”), established a legislative framework for recognizing and limiting sovereign immunity in Oklahoma. The GTCA limits the imposition of vicarious liability on governmental entities to acts committed by public employees that are within the “scope of employment” as defined by the act.[3]

The effect of the GTCA is twofold: First, the act defines the full extent of the state’s waiver of sovereign immunity when it comes to claims for tort damages, whether the claims arise from common law, statute or constitutional violations.[4] Second, the GTCA abrogates the common law and limits vicarious liability to actions performed by an employee “acting in good faith within the duties of the employee’s office or employment.”[5] Thus, the question arises whether a jury can find that a public employee was acting within the “scope of employment” and still award punitive damages based on a finding that the employee’s conduct was in “reckless disregard” or “malicious.”

Like all good law school professors, the Oklahoma Supreme Court has answered this question with the truism, “It depends.” The Oklahoma Supreme Court’s seminal case on the issue, DeCorte v. Robinson, builds upon prior Oklahoma case law and draws from the Florida Supreme Court.[6] The decisional framework presented in DeCorte and its underpinnings illustrate how and when a jury can find that a public employee acted within the “scope of employment” and award punitive damages for the same conduct.

SOVEREIGN IMMUNITY

The doctrine of sovereign immunity was first recognized in early English law and established that the sovereign could not be sued without his permission. Although there is some debate as to whether the doctrine is based upon the theory that “the king can do no wrong,” the doctrine is believed to have more likely resulted from the practicality that the courts were an extension of the realm and could not be used to enforce claims against it.[7]

Federal Sovereign Immunity

 When the Constitution was ratified, the crown could not be sued in its own courts without its consent.[8] The ratification of the U.S. Constitution included significant assurances by such figures as Alexander Hamilton, James Madison and John Marshall that the doctrine of sovereign immunity would not be thrown out with the British.[9] Before long, however, a growing chorus of dissent began to gnaw at the edges of the sovereign’s immunity.[10]

Writing for the court in U.S. v. Lee, Justice Samuel Miller expressed the court’s misgivings when he wrote:

No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.[11]

Although the court did not disturb the immunity provided to the government, it declined to extend that immunity to individual officers of the United States acting on its behalf.[12] Rejecting the argument that sovereign immunity precluded judicial scrutiny over federal officers, the court in Lee held:

It is not pretended, as the case now stands, that the president had any lawful authority to do this, or that the legislative body could give him any such authority except upon payment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of the government, however clear it may be made that the executive possessed no such power.[13]

Thus, by 1882, the power of absolute sovereign immunity began to retreat as the judicial branch assumed the role of guarding individual rights from the abuse of power by its coequal branches of government.

In 1946, Congress passed the Federal Tort Claims Act, which statutorily allowed the United States to be sued in the district courts and waived its governmental immunity “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.”[14] Thus began the genesis of the modern tort claims acts among the states.

Sovereign Immunity in Oklahoma

In 1978, the Oklahoma Legislature enacted the Political Subdivision Tort Claims Act (codified at Okla. Stat. Tit. 51 §151, et seq.), extending political subdivision tort liability for loss resulting from its torts or the torts of its employees acting within the scope of their employment or duties, subject to the limitations specified in the act. At that time, the doctrine of sovereign immunity in Oklahoma was no longer premised upon absolute immunity from suit but rather stemmed from the dichotomy of the state as either sovereign or proprietor.[15]

In Hershel v. University Hospital Foundation, the Oklahoma Supreme Court limited common law immunity to functions of the state that were inherently governmental rather than merely proprietary.[16] Under this view, the state and its political subdivisions enjoyed immunity when acting in a legislative or judicial/quasi-judicial capacity. However, in Vanderpool v. State, the Oklahoma Supreme Court would hold that the state could be sued without regard to whether the Legislature had given such consent, express or implied.[17] In the court’s opinion, the role of sovereign immunity began to wither upon the “re-examination of the soundness of the concept ... in the light of the expanded role of government in today's society ... [resulting in] a retreat from the concept both legislatively and by case law.”[18]

Following Vanderpool, the Legislature enacted the GTCA, abrogated common law sovereign immunity once and for all and replaced it with statute.[19] Although the GTCA codified the doctrine of sovereign immunity in Oklahoma, it simultaneously waived that immunity for a wide swath of tort claims. Thus, the state and its political subdivisions are statutorily immune from tort claims unless the Legislature has expressly waived that immunity.[20]

Scope of Employment

The GTCA serves as a waiver of immunity in certain instances.[21] Specifically, the act provides that the state or political subdivision “shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment.”[22] The GTCA distinguishes between a government employee acting within the “scope of employment” and one who was not to determine whether sovereign immunity attaches.[23]

“Scope of employment” is defined by the GTCA as “performance by an employee acting in good faith within the duties of the employee's office or employment or of tasks lawfully assigned by competent authority.”[24] The Oklahoma Supreme Court has held that an act of the employee falls outside the scope if the actions are malicious or in bad faith.[25] The decision itself is a matter for the jury unless only one reasonable inference can be drawn from the allegations.[26]

Under the GTCA, a “suit against a government officer in his or her official capacity is actually a suit against the entity that the officer represents and is an attempt to impose liability upon the governmental entity.”[27] If the employee is acting within the scope of employment, it is the government entity that may be sued, not the individual.[28] In pursuit of the aims of the GTCA, “an employee of a political subdivision is relieved from private liability for tortious conduct committed within the scope of employment.”[29]

Critically, however, “such protection does not render such employees immune from liability for willful and wanton negligence or other conduct which places the employees outside the scope of their employment.”[30] As a result, claims alleging the excessive use of force or other constitutional deprivations at the hands of law enforcement often result in a tug of war between the officer, the employing agency and the plaintiff as to whether the conduct falls within the “scope of employment.”

PUNITIVE DAMAGES: OKLA. STAT. TIT. 23 §9

The purpose of punitive damages is to punish and deter bad conduct. Proof of actual or presumed malice, oppression, fraud or wanton or reckless disregard for another's rights must be determined by the trial court before the jury can be instructed on punitive damages.[31] In such cases, the jury will first be asked to determine whether the defendant’s conduct was within the “scope of employment.” If supported by evidence, the trial court may instruct the jury using instruction 5.6 of the Oklahoma Uniform Jury Instructions, which provides:

EXEMPLARY OR PUNITIVE DAMAGES – FIRST STAGE

If you find in favor of [Plaintiff], and grant [him/her] actual damages, then you must also find by a separate verdict, whether [Defendant] (acted in reckless disregard of the rights of others) (and/or) (acted intentionally and with malice towards others).

[Plaintiff] has the burden of proving this by clear and convincing evidence ... .

[The conduct of [Defendant] was in reckless disregard of another's rights if [Defendant] was either aware, or did not care, that there was a substantial and unnecessary risk that [his/her/its] conduct would cause serious injury to others. In order for the conduct to be in reckless disregard of another's rights, it must have been unreasonable under the circumstances, and also there must have been a high probability that the conduct would cause serious harm to another person.]

[Malice involves either hatred, spite, or ill-will, or else the doing of a wrongful act intentionally without just cause or excuse.]

Critically, the instructions given to jurors do not tie the concepts of “scope of employment” and punitive damages in any way. The instructions are merely presented seriatim. Given the stakes at issue between the plaintiff, the officer and the employing agency, the natural question arises whether findings by the jury that the officer’s conduct was within the “scope of employment” can coexist with a finding of reckless indifference or malice.

DECORTE’S DILEMMA

Off-duty police officer Gary Robinson was driving in his private car with his wife in Tulsa.[32] Officer Robinson saw a car that he considered to be driving dangerously and pursued it, reaching speeds of up to 85 mph. Officer Robinson contacted the police department dispatcher by cell phone. The only instruction he received was to stay on the phone. The driver, Mr. DeCorte, realized he was being pursued and stopped his car in a parking lot.[33]

Although Officer Robinson was informed that an on-duty police officer was en route, he exited his car and approached Mr. DeCorte’s vehicle. Officer Robinson identified himself as an off-duty police officer, drew a handgun, pointed it at Mr. DeCorte and reached into the car to get the key. Mr. DeCorte was either then pulled from or exited the car on his own. After Mr. DeCorte was out of his car, Officer Robinson attempted to subdue him with a “carotid chokehold.”[34] When the on-duty officer arrived, he and Officer Robinson subdued and handcuffed Mr. DeCorte. Mr. DeCorte was placed under arrest and was put in the back of the on-duty officer’s patrol car.

Mr. DeCorte testified that Officer Robinson then struck him and grabbed him by the throat while he was handcuffed and seated in the back seat of the police car. Mr. DeCorte's breath test did not reach the statutory level of intoxication. All charges against him were dropped. During the incident, Mr. DeCorte suffered a herniated disk in his neck, which required surgery.

Mr. DeCorte sued the city of Broken Arrow and Officer Robinson, alleging civil rights violations and other claims. The jury returned a verdict in favor of Mr. DeCorte for $30,000 against the city. The jury also returned a verdict in favor of Mr. DeCorte against Officer Robinson for actual and punitive damages. By special finding, the jury found that Officer Robinson had been acting under the “scope of employment.” The city appealed, arguing that the jury’s finding of punitive damages excluded the possibility that Officer Robinson could have been acting within the scope of his employment. The Oklahoma Court of Civil Appeals reversed the judgment, reasoning that the verdict was internally inconsistent and finding that Officer Robinson could not have been acting within the scope of his employment while, at the same time, acting in such a wanton manner as to warrant punitive damages.[35] The Oklahoma Supreme Court disagreed, but its decision appears to be a compromise of two competing theories stemming from Oklahoma and Florida case law.

Oklahoma’s Precedent

The argument in DeCorte was not a matter of first impression per se, though it was one that had not previously been fully settled by the Oklahoma Supreme Court. The court first confronted the issue in Holman v. Wheeler, 1983 OK 72. The guardian of a 10-year-old student brought suit against a school superintendent who allegedly spanked the student with excessive force while administering school discipline.[36] The plaintiff alleged that he was involved in a minor scuffle with another student. After both students were disciplined by their classroom teacher, the defendant superintendent entered the school in an intoxicated state and proceeded to spank the plaintiff in a violent fit of “intoxicated rage.”[37]

Critically, the plaintiff alleged that the superintendent was acting outside the scope of employment and did not name the school district as a defendant, effectively sidestepping the GTCA. The superintendent argued that he was authorized to administer such discipline, pursuant to 70 O.S. 1981 §6-114, and was thus immunized from liability under the act, with which the plaintiff had failed to provide the notice required.[38] The Oklahoma Supreme Court disagreed, finding for the plaintiff on the basis that when the conduct of a public employee is willful and wanton, that conduct is beyond the scope of employment and, thus, not covered by the act.[39]

The court’s next foray into this question would go beyond the “scope of employment” issue resolved in Holman, and it would be the court’s first major discussion of whether a finding of “scope of employment” and the award of punitive damages could coexist. Plaintiff Mr. Parker ran a nightclub in Midwest City. Officer Strong was employed by the Midwest City Police Department.[40] The two men knew each other and apparently shared a mutual dislike of one another. On a spring evening in 1986, Officer Strong stopped Mr. Parker in his automobile, ticketed him for speeding and driving without a valid license and charged him with driving under the influence of alcohol.[41] Mr. Parker was acquitted of the DUI charge. He sued, alleging malicious prosecution and naming Midwest City, Officer Strong and the chief of police as defendants.[42]

Noting that “if an employee acts outside the scope of employment, the political subdivision is immune from liability” under the GTCA, the court focused on whether a claim of “malice” necessarily precludes a finding of “good faith.” The Supreme Court held that because a malicious prosecution action includes the element of malice, conduct supporting such a claim could not be within the “scope of employment” as a matter of law.[43]

Although the Oklahoma Supreme Court’s decisions in Holman and Parker suggested a clear dividing line between scope of employment and willful and wanton conduct, that clarity was not long-lived. In May 1991, Kiley Nail was a 15-year-old high school student who lied to his parents to attend a prom party at a local motel, where he became extremely intoxicated.[44] When Mr. Nail began to fall in and out of consciousness, some students drove him to the home of a friend’s grandmother, where Mr. Nail mistakenly wandered onto the enclosed porch of a nearby neighbor, who called the police.[45] When the responding officer arrived, Mr. Nail was arrested, handcuffed and taken to the police station.[46] Although Mr. Nail had trouble walking unassisted, he offered no resistance to the officer. Upon arrival at the police station, the officer said, “I’m tired of your s---,” and allegedly shoved Mr. Nail, causing him to fall on the gravel/asphalt surface, breaking his nose and cutting his face.[47]

Mr. Nail filed suit against the city, alleging that the officer, either intentionally and maliciously or negligently, injured him by using excessive force. The city responded by filing a motion for summary judgment, arguing that the officer’s actions were not within the scope of employment.[48] The trial court entered summary judgment against the city on the issue of liability, and the jury returned a verdict in favor of Mr. Nail in the amount of $100,000.[49] The Court of Appeals reversed and remanded the judgment on the basis that the officer was acting outside the scope of his employment when he injured Mr. Nail.[50]

The Oklahoma Supreme Court disagreed, finding that “the officer was acting within the scope of his employment” at the time he arrested the youth and took him to jail.[51] The court reasoned that based on the record, a jury could find the officer was not necessarily intending to hurt Mr. Nail when he shoved him and that his comments could be construed as a manifestation of disgust, rather than signaling an intention to harm him.[52] The court ruled that while the officer’s conduct was clearly unprofessional, the facts themselves are susceptible to more than one rational conclusion, thus leaving the determination of whether the officer was acting within the scope of employment well within the province of the jury.[53]

The Missing Piece

Throughout the decisions in Holman, Parker and Nail, the facts and procedural course of each case meant the Oklahoma Supreme Court had never squarely addressed the issue of whether a jury could find that a defendant was both acting within the scope of employment and had also acted with malice or wanton and willful disregard. When this precise issue arose in DeCorte, Oklahoma jurisprudence was less than clear, leaving some question as to whether a defendant could start by acting within the scope of employment and then later exceed that scope. Although the DeCorte opinion would discuss this theory, the underlying principle would come from the Florida Supreme Court’s decision in McGhee.

In September 1990, Morris McGhee was arrested by Volusia County Deputy Hernlen.[54] During the booking process, the two exchanged words, and Deputy Hernlen proceeded to grab the handcuffed Mr. McGhee by the throat and kick him with force.[55] Mr. McGhee sued the deputy and the sheriff’s department. The trial court dismissed the sheriff’s department on the basis that the deputy’s actions were outside the scope of his employment.[56] The Florida Court of Appeals upheld the dismissal, and an appeal was taken to the Florida Supreme Court.

Reversing the Court of Appeals, the Florida Supreme Court focused on the nature of the public employee’s actions rather than the heinousness of the conduct. Specifically, the court reasoned:

To abuse power is to use it in an extravagant manner, to employ it contrary to the law of its use, or to use it improperly and to excess. The usurpation of power has reference to the unlawful assumption, or seizure and exercise of power not vested in one, or where one interrupts another in the exercise of a right belonging to him.[57]

Thus, if the public employee is abusing power that has been lawfully delegated to them by the employing agency, the jury can find that conduct to be within the “scope of employment” without regard to the unlawfulness of the actions. For example, the Florida Supreme Court pointed to a decision by the Florida Court of Appeals in Hennagan v. Dept. of Safety and Motor Veh.[58] in which a highway patrol officer “arrested” a minor child pretextually and then sexually molested her. The trial court dismissed the ensuing action against the agency on the grounds that the officer’s conduct was beyond the scope of employment and the agency was immunized under Florida’s tort claims act.[59] The Court of Appeals reversed, however, finding that the “officer’s conduct though illegal, clearly was accomplished through an abuse of power lawfully vested in the officer, not an usurpation of power the officer did not rightfully possess.”[60] Thus, the Florida Supreme Court held that even heinous conduct when undertaken through lawfully delegated power can be within the scope of employment.[61]

DeCorte Resolved

Ultimately, the Oklahoma Supreme Court found that the jury’s determination that Officer Robinson had been “acting within the scope of his employment” was legally consistent with the award of punitive damages in favor of DeCorte.[62] In its holding, the Oklahoma Supreme Court started from the proposition that whether an officer was acting within the scope of employment was a question of fact to be determined by the jury.[63] Moreover, the jury’s determination of facts would not be disturbed as long as there was any theory supported by competent evidence that could serve as the basis for the verdict.[64]

Beyond this point, however, the Oklahoma Supreme Court’s basis for its holding becomes less clear as the opinion attempts to harmonize the temporal theory discussed in Nail with the lawful authority theory borrowed from McGhee. The decision in DeCorte argues both theories, holding that at the time Officer Robinson began his pursuit of Mr. DeCorte, he was acting within the authority lawfully granted to him by the Broken Arrow Police Department. Although the court leaves the door open by reasoning that “an individual cannot simultaneously act in good faith and in a malicious manner,” it holds that the jury could have found that Officer Robinson’s actions began within the scope of employment even if it was later found to have exceeded it.[65]

Underlying this reasoning is the court’s tacit adoption of McGhee, with which it draws a bright-line test for “scope of employment” as whether the public employee’s conduct involved the abuse of lawfully vested authority or was a usurpation of authority. In either event, if the facts can support an inference in either direction, the decision is one for the jury, which will not likely be disturbed on appeal.

CONCLUSION

Claims against officers and employing agencies for excessive use of force continue to grow in Oklahoma as well as across the United States. Whether this trend reflects the reality of modern policing or an increase in the success of such claims with juries, the issue of sovereign immunity under the Oklahoma Governmental Tort Claims Act will continue to be relevant. Although Oklahoma law provides a broad avenue for plaintiffs to seek accountability, it is important for practitioners to understand that there are at least some limits at play.

---

ABOUT THE AUTHOR
Pete G. Serrata III is of counsel with the law firm of Derryberry & Naifeh LLP in Oklahoma City. He practices in the areas of insurance coverage litigation, administrative law, appellate advocacy and civil mediation.

 

 

 

 

 

---

ENDNOTES

[1] Russell-Locke Super-Service Inc. v. Vaughn, 170 Okla. 377 (1935).

[2] Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, ¶16, 867 P.2d 1241, 1246 (quoting Okla. Stat. Tit. 23 §9 (1991)).

[3] Okla. Stat. Tit. 51 §153(a).

[4] Okla. Stat. Tit. 51 §153(b).

[5] Okla. Stat. Tit. 51 §152(12).

[6] DeCorte v. Robinson, 1998 OK 87, 969 P.2d 358.

[7] Vanderpool v. State, 1983 OK 82, ¶7, 672 P.2d 1153, 1154 (dicta discussing the origin of sovereign immunity) (superseded by statute).

[8] Alden v. Maine, 527 U.S. 706 (1999).

[9] Alexander Hamilton, The Federalist Papers, No. 81, at 487-88 (Clinton Rossiter ed., 1961) (1788).

[10] U.S. v. Lee, 106 U.S. 196 at 218 (1882).

[11] Id. at 220.

[12] Id.

[13] Id.

[14] 28 U.S.C. §1346(b).

[15] Hershel v. University Hospital Foundation, 1980 OK 60, 610 P.2d 237 (superseded by statute).

[16] Id.

[17] Id.

[18] Vanderpool v. State, supra n. 10 at ¶10.

[19] The Governmental Tort Claims Act, ch. 226, §3, 1984 O.S.L. 811, 813 (codified at 51 O.S.Supp.1984 §152.1).

[20] Barrios v. Haskell Cnty. Pub. Facilities Auth., 2018 OK 90, 432 P.3d 233, 237.

[21] Okla. Stat. Tit. 51 §152.1(B).

[22] Okla. Stat. Tit. 51 §153.

[23] See Martin v. Johnson, 1998 OK 127, ¶28, 975 P.2d 889, 895.

[24] Okla. Stat. Tit. 51 §152(12).

[25] Parker v. City of Midwest City, 1993 OK 29, ¶¶14, 850 P.2d 1065, 1068.

[26] Tuffy’s Inc. v. City of Oklahoma City, 2009 OK 4, ¶20, 212 P.3d 1158, 1167.

[27] Speight v. Presley, 2008 OK 99, ¶20, 203 P.3d 173, 179.

[28] Id. (holding that designating an employee in their official capacity as a named defendant for this type of claim is improper); see also Okla. Stat. Tit. 51 §163(C).

[29] Tuffy’s Inc. v. City of Oklahoma City, supra at n. 25, at ¶8.

[30] Cooper v. Millwood Indep. Sch. Dist. No. 37, 1994 OK CIV APP 114, 887 P.2d 1370.

[31] Rodebush v. Oklahoma Nursing Homes, Ltd., supra at n. 2, ¶22.

[32] DeCorte v. Robinson, 1998 OK 87, ¶2, 969 P.2d 358, 360.

[33] Id. at ¶3.

[34] Id. at ¶4.

[35] Id. at ¶7.

[36] Holman By and Through Holman v. Wheeler, 1983 OK 72 at ¶1, 677 P.2d 645 (superseded by statute).

[37] Id. at ¶4.

[38] Id. at ¶7.

[39] Id. at ¶15.

[40] Parker v. City of Midwest City, 1993 OK 29 at ¶2.

[41] Id. at ¶3.

[42] Id. at ¶4.

[43] Id. at ¶12.

[44] Nail v. City of Henryetta, supra at n. 24, at ¶2.

[45] Id. at ¶3.

[46] Id.

[47] Id.

[48] Id. at ¶4.

[49] Id. at ¶5.

[50] Id.

[51] Id at ¶12.

[52] Id.

[53] Id. at ¶13.

[54] McGhee v. Volusia County, 679 So.2d 729 at 730 (Fla. 1996).

[55] Id.

[56] Id.

[57] Id. at 731.

[58] Hennagan v. Dept. of Safety and Motor Veh., 467 So.2d 748 (Fla. 1st DCA, 1985).

[59] Id. at 731.

[60] Id. at 732 (quoting Hennegan v. Dept. of Hghwy Safety and Motor Veh. 467 So.2d 748 (Fla. 1st DCA 1985)).

[61] Id. at 733.

[62] DeCorte v. Robinson, supra at n. 31, at ¶14.

[63] Id. at ¶11.

[64] Id. at ¶9 (citing Eversole v. Okla. Hosp. Founders Ass’n, 1991 OK 80, 818 P.2d 456).

[65] Id. at ¶15.