NOVEMBER 2022 | 25 THE OKLAHOMA BAR JOURNAL 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 fulltime 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
RkJQdWJsaXNoZXIy OTk3MQ==