THE OKLAHOMA BAR JOURNAL 18 | SEPTEMBER 2025 Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff. 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 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
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