THE OKLAHOMA BAR JOURNAL 20 | SEPTEMBER 2025 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/ 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.
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