Bosh v. Cherokee Cnty. Bldg. Auth.

• Decision Date: 28 June 2013
• Docket Number: No. 111,037.,111,037.
• Citation: 305 P.3d 994
• Parties: Daniel BOSH, Plaintiff, v. CHEROKEE COUNTY BUILDING AUTHORITY, et al., Defendant.
• Court: Oklahoma Supreme Court

305 P.3d 994

Daniel BOSH, Plaintiff,

v.CHEROKEE COUNTY BUILDING AUTHORITY, et al., Defendant.

No. 111,037.

Supreme Court of Oklahoma.

Feb. 12, 2013.

Rehearing Denied June 27, 2013.

As Corrected June 28, 2013.

¶ 0 The United States District Court for the Eastern District of Oklahoma certified four questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011 §§ 1601–1611. ¹ We have reformulated ² the questions:

1. Does the Okla. Const. art. 2, § 30 provide a private cause of action for excessive force, notwithstanding the limitations of the Oklahoma Governmental Tort Claims Act, 51 O.S.2011 §§ 151 et. seq.? ³

2. If such a right exists, is the cause of action recognized retrospectively?

3. Are the standards of municipal liability coterminous with a Federal § 1983 action or does the common law theory of respondeat superior apply to such action?

We answer the questions as follows:

1. The Okla. Const. art 2, § 30 provides a private cause of action for excessive force, notwithstanding the limitations of the Oklahoma Governmental Tort Claims Act, 51 O.S.2011 §§ 151 et seq.

2. The action is recognized retrospectively.

3. The common law theory of respondeat superior applies to municipal liability under such an action.

QUESTIONS ANSWERED.

J. Spencer Bryan, Steven J. Terrill, D. Mitchell Garrett Jr., Tulsa, Oklahoma, for Plaintiff.

Stephen L. Geries, Jamison C. Whitson, Oklahoma City, Oklahoma, for Defendant.

KAUGER, J.:

¶ 1 The United States District Court for the Eastern District of Oklahoma certified four questions of Oklahoma Law under the Revised Uniform Certification of Questions of Law Act, 20 O.S.2011 §§ 1601–1611, seeking clarification concerning the remedies available to a plaintiff who brings an excessive force lawsuit pursuant to the Okla. Const. art. 2, § 30.⁴ We have reformulated the questions into three.

FACTS

¶ 2 We note at the onset, that the facts presented by the parties in this Court are very limited and offer very little detail. It appears that on May 17, 2011, jailers at the Cherokee County Detention Center, a jail facility operated by the Cherokee County Governmental Building Authority (the Authority) attacked the plaintiff, Daniel Bosh (detainee), while he was standing at the booking desk of the Detention Center with his hands secured in restraints behind his back. Presumably the detainee was being booked into the jail, but no explanation is offered as to why he was standing at the booking desk, why he was restrained, with what he was restrained, or what crime he was charged with, if any, or whether he had been convicted.

¶ 3 Nevertheless, video surveillance of the events captured images of one of the jailers, the defendant Gordon Chronister, Jr. (Chronister), approaching the detainee and grabbing him behind his back. Chronister then proceeded to slam the detainee's head into the booking desk by holding him from the back of the neck. He then placed the detainee's head underneath his arm and deliberately fell backwards causing the detainee to strike the crown of his head on the floor. Other jailers quickly joined the assault and moved the detainee to the showers, outside of the purview of video surveillance. The assault continued in other various off camera locations for an undisclosed amount of time. Afterwards, the jailers let the detainee languish in his cell for two days before taking him to treatment at a Tulsa hospital.

¶ 4 As a result of the attack, the detainee suffered a fracture of his vertebrae and had to undergo surgery to fuse several of the discs along his spinal cord. On September 29, 2011, the detainee filed a lawsuit in state court against the Authority, the assistant jail administrator and the jailers who initiated the attack. He asserted 42 U.S. § 1983 (Civil Rights) claims against the individuals and state law claims against the Authority. On October 24, 2011, the Authority removed the case to the United States District Court for the Eastern District of Oklahoma. On October31, 2011, the Authority filed a motion to dismiss the state tort claims based on exemptions from liability provided by Oklahoma Governmental Tort Claims Act, 51 O.S.2011 §§ 151 et seq. (the OGTCA).

¶ 5 On December 6, 2011, the federal court permitted additional briefing on the motion to dismiss based upon the Oklahoma Court of Civil Appeals opinion in Bryson v. Oklahoma County ex. rel. Oklahoma County Det. Ctr., 2011 OK CIV APP 98, 261 P.3d 627 which was decided on August 30, 2011.⁵ On April 5, 2012, the federal court granted the Authority's motion to dismiss the detainee's state tort claims based on the Act, but the court permitted the detainee to amend his complaint to assert a claim of excessive force under art. 2, § 30 of the Okla. Const.⁶

¶ 6 On April 20, 2012, the detainee amended his complaint and the Authority filed a second motion to dismiss. On August 30, 2012, the United States District Court for the Eastern District of Oklahoma certified the questions of law to be answered to this Court. The certified questions were filed in this Court on September 5, 2012, and the next day, we ordered the parties to brief the issues. The briefing schedule was completed on October 8, 2012.

I.THE OKLAHOMA CONSTITUTION, ART. 2, § 30 PROVIDES A PRIVATE CAUSE OF ACTION FOR EXCESSIVE FORCE NOTWITHSTANDING THE REQUIREMENTS/LIMITATIONS PROVIDED BY THE OKLAHOMA GOVERNMENTAL TORT CLAIMS ACT, 51 O.S.2011 §§ 151 ET SEQ.

¶ 7 This controversy centers around the alleged conflict between the Oklahoma Constitution, which protects citizens of the State of Oklahoma from unreasonable seizures ⁷ and the OGTCA which appears to allow the state, or, in this case the Authority, to elude tort liability when its employees beat and injure a citizen who is detained at one of its facilities.⁸

¶ 8 The Authority acknowledges that a court may recognize private causes of action.⁹ Nevertheless, it argues that it cannot be held liable for its employees who exert excessive force against detainees because the OGTCA immunizes it from any liability for the operation of any prison, jail or correctional facility.¹⁰ The detainee contends that regardless of what the OGTCA immunizes, the Okla. Const. art. 2, § 30¹¹ protects citizens from being physically abused by the employees of state and local entities that operate jails and correctional facilities, and such protection includes legal liability for such conduct.

¶ 9 Employers being held legally liable for the acts of their employees is nothing new. Under the common law doctrine of respondeat superior a principal or employer is generally held liable for the wilful acts of an agent or employee acting within the scope of the employment in furtherance of assigned duties.¹² The doctrine rests on the premise that the employer answers for an employee's conduct provided the employee was acting within the scope of employment.¹³ An employer is liable for an employee's torts if the conduct was committed within the scope of employment. ¹⁴

¶ 10 Employer liability extends when an employee's conduct is an assault of excessive force if the conduct also occurs within one's scope of employment.¹⁵ Under the theory of respondeat superior, one acts within the scope of employment if engaged in work assigned, or if doing what is proper, necessary and usual to accomplish the work assigned, or doing that which is customary within the particular trade or business.¹⁶

¶ 11 For example, in Nail v. City of Henryetta, 1996 OK 12, 911 P.2d 914, we addressed the question of whether a police officer was acting within the scope of employment and thus, whether the city was liable when the officer shoved an intoxicated 15–year–old who was handcuffed and not resisting arrest. ¹⁷ In Nail, the 15 year-old brought suit against city, alleging that its employee, the arresting officer, injured him either intentionally and maliciously or negligently by excessive force.

¶ 12 We said that:

As a general rule, it is not within the scope of an employee's employment to commit an assault on a third person. However, this general rule does not apply when the act is one which is ‘fairly and naturally incident to the business,’ and is done ‘while the servant was engaged upon the master's business and be done, although mistakenly or ill advised, with a view to further the master's interest, or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master's business.’ An employee's act is within the scope of employment if it is incident to some service being performed for the employer or arises out of an emotional response to actions being taken for the employer. (Citations omitted.)

¶ 13 This rationale has been illustrated in at least 100 years of Oklahoma's caselaw. In Baker v. Saint Francis Hospital, 2005 OK 36, ¶ 18, 126 P.3d 602 a jury question was presented whether a daycare caregiver was acting within the scope of employment so as to hold her employer liable for intentionally striking a child's head on corner of shelf. The Court noted at ¶ 12 that:

Oklahoma case law provides examples of cases involving torts for which the employer was held liable and those in which the employer was not held liable. Early in statehood the Court held that a railroad company was liable for the actions of the train auditor, who falsely imprisoned a passenger arising out of a controversy over the payment of a fare. The Court stated the general rule that a corporation, like an individual, is liable for any tort committed by its agent in the course of his employment, “even though the act is done wantonly and recklessly, or was against the express orders of the company.” Chicago R.I. & P. Ry. Co. v. Radford, 1913 OK 7, ¶ 4 , 129 P. 834, 837. Other cases holding the employer liable for the tort of the employee include: Ada–Konawa Bridge Co. v. Cargo, 1932 OK 790 , 21 P.2d 1 (the servant of the toll bridge company shot an automobile driver when he drove past the toll gate and failed...