NOVEMBER 2022 | 27 THE OKLAHOMA BAR JOURNAL 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: y 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 y 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.26 The 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.
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