Burgin v. Leach

• Decision Date: 21 January 2014
• Docket Number: No. 111,705.,Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.,111,705.
• Citation: 320 P.3d 33
• Parties: Dana BURGIN, Individually and as Surviving Spouse of Carlton L. Burgin, Deceased, and William L. Burgin, Plaintiffs/Appellants, v. Raymond L. LEACH, in his Individual and Official Capacities as Deputy of The Pawnee County Sheriff's Department; Mike Waters, in his Individual and Official Capacity; and The Pawnee County Sheriff's Department; and Pawnee County Board of County Commissioners, Defendants/Appellees.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

320 P.3d 33

Dana BURGIN, Individually and as Surviving Spouse of Carlton L. Burgin, Deceased, and William L. Burgin, Plaintiffs/Appellants,

v.Raymond L. LEACH, in his Individual and Official Capacities as Deputy of The Pawnee County Sheriff's Department; Mike Waters, in his Individual and Official Capacity; and The Pawnee County Sheriff's Department; and Pawnee County Board of County Commissioners, Defendants/Appellees.

No. 111,705.Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 3.

Court of Civil Appeals of Oklahoma, Division No. 3.

Jan. 21, 2014.

Appeal from the District Court of Pawnee County, Oklahoma; Honorable Matthew D. Henry, Trial Judge.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Donald E. Smolen, Laura Lauth, Smolen, Smolen & Roytman, P.L.L.C., Tulsa, Oklahoma, for Plaintiffs/Appellants.

Phillip W. Anderson, Collins, Zorn & Wagner, P.C., Oklahoma City, Oklahoma, for Defendants/Appellees.

BRIAN JACK GOREE, Judge.

¶ 1 This case arises from a motor vehicle collision that occurred while Deputy Sheriff Raymond Leach was responding to a call for assistance. The driver of the other vehicle was killed and his passengers were severely injured. Dana Burgin filed this action individually and as surviving spouse of Carlton Burgin. William Burgin, Carlton's father, joined as a plaintiff. Because Plaintiffs' claims included allegations that their constitutional rights had been violated, Defendants removed the case to federal court. The United States District Court dismissed all claims involving federal law and remanded the case to Pawnee County to adjudicate the questions of state law. On remand, the trial court dismissed the remaining claims and denied Plaintiffs' motion to file an amended petition. We affirm the Order dismissing Plaintiffs' claim for negligence per se but reverse the remainder of the Order. The petition meets our state's notice pleading requirements and it states valid claims for relief. Furthermore, the trial court abused its discretion in denying Plaintiffs' request to file an amended petition to clarify their claims.

I.Background

¶ 2 The petition alleges Deputy Leach received a radio call on July 17, 2011 concerning a domestic incident that required police assistance. Leach did not immediately respond to the call. Approximately 45 minutes later, he was traveling on State Highway 48 in Pawnee County toward the dispatched location. He was driving in excess of 90 miles per hour without a siren. He turned on his emergency lights only when he wanted a vehicle ahead to move over and allow him to pass. While changing lanes to avoid a collision with another vehicle, Deputy Leach lost control and impacted the Burgins in a head-on collision.

¶ 3 Plaintiffs sued four defendants: (1) Raymond Leach in his individual capacity and in his official capacity as deputy sheriff, (2) Mike Waters in his individual capacity and in his official capacity as sheriff, (3) The Pawnee County Sheriff's Department, (Sheriff's Department) and (4) The Pawnee County Board of County Commissioners (Pawnee County). The petition alleges Leach breached his duties in connection with the operation of his vehicle; he failed to use ordinary care; he acted in reckless disregard for the well-being of others; and he acted willfully, wantonly, and unreasonably to the degree it would shock the conscience of a reasonable person. Plaintiffs allege Leach was negligent per se because he violated 47 O.S.2011 § 11–106 by failing to engage his emergency lights and sirens while exceeding the speed limit.

¶ 4 The petition also alleges wrongdoing by Waters, the Sheriff's Department, and Pawnee County. It alleges Defendants failed to properly instruct, train, and supervise Leach. It alleges Defendants had inadequate policy regarding training, supervision, and discipline. It alleges Defendants hired Leach knowing he had a history of improper conduct but nevertheless entrusted him with an emergency vehicle and knew or should have known he would operate it unsafely.

¶ 5 Plaintiffs sued for actual and punitive damages based on negligence, negligence per se, and violation of Constitutional rights under 42 U.S.C.1983.¹ Because a 1983 claim seeks a remedy based upon a federally created right, Defendants removed the case to federal court. The federal court dismissed the 1983 claims and remanded the case to Pawnee County District Court for adjudication of the state law claims.

¶ 6 Defendants then filed a motion in the state court to set the case for hearing on the remaining claims and they attached the briefs that had been filed in federal court. The trial court granted the motion to dismiss the claims against Leach and denied Pawnee County's motion to amend the petition. That Order is before us for review without appellate briefs according to the accelerated procedure pursuant to 12 O.S. Supp.2013 Ch. 15, App. 1 Okla. Sup.Ct. R. 1.36(a)(2). We determine only those issues identified in the Petition in Error. Vanguard Environmental, Inc. v. Curler, 2008 OK CIV APP 57, ¶ 5, n. 4, 190 P.3d 1158, 1161.

II.Defendant Leach is a Proper Party Because His Alleged Conduct Was Outside the Scope of His Employment

¶ 7 We begin our analysis by examining whether Leach was a proper party. Defendants argue the Oklahoma Governmental Tort Claims Act immunizes employees from suit when they are acting in the scope of their employment and, because Leach was performing the job of deputy sheriff, he should be dismissed. Plaintiffs' opposing argument is that Leach is properly named because they sued him for actions outside the scope of his employment. We agree with Plaintiffs.

¶ 8 With a few exceptions not relevant here, a state employee who is acting within the scope of employment shall not be named as a defendant. 51 O.S. Supp.2012 § 163(C). A party who claims injury caused by a state employee may seek damages against the state, but not the employee. 51 O.S.2011 § 153(A). However, the state is not liable under the Act for conduct by an employee that is outside the scope of employment. 153.

¶ 9 Scope of employment includes performance by an employee acting in good faith within the duties of the employee's office and it encompasses the use of an agency vehicle with the consent of the supervisor. 51 O.S.2011 § 152(12). Several cases support Plaintiffs' argument that they may sue Deputy Leach personally because they alleged his conduct was not in the scope of his employment.

¶ 10 In Nail v. City of Henryetta, 1996 OK 12, 911 P.2d 914, the court recognized that a police officer could be outside the scope of employment if he were acting maliciously and in a willful and wanton manner toward an individual he had taken into custody for intoxication. Nail, 1996 OK 12, ¶ 14, 911 P.2d at 918. In Carswell v. Oklahoma State University, 1999 OK 102, 995 P.2d 1118, the court suggested a plaintiff might be able to maintain an action directly against a governmental employee by presenting evidentiary material that the employee had acted maliciously or in bad faith. Carswell, 1999 OK 102, ¶ 20, 995 P.2d at 1123. In DeCorte v. Robinson, 1998 OK 87, 969 P.2d 358, an off-duty police officer used his personal vehicle to stop an individual he considered to be driving dangerously, and in the process subdued him with a chokehold. The jury awarded punitive damages against the officer, which showed it had determined his actions exceeded the scope of his employment. DeCorte, 1998 OK 87, ¶ 14, 969 P.2d at 362.

¶ 11 In light of these authorities, we review the allegations of the petition to ascertain whether Plaintiffs have sufficiently stated a claim that Deputy Leach was acting outside the scope of his employment. In doing so, we accept the allegations in the pleading as true. Great Plains Federal Savings and Loan Association v. Dabney, 1993 OK 4, ¶ 2, n. 3, 846 P.2d 1088, 1090 n. 3. A pleading must not be dismissed for failure to state a legally cognizable claim unless the allegations indicate beyond any doubt that the litigant can prove no set of facts which would entitle the plaintiff to relief. Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, ¶ 6, 212 P.3d 1158, 1162. We apply this standard in our de novo review. Id.

¶ 12 Plaintiffs alleged Deputy Leach was driving on a non-emergency call in excess of 90 miles per hour without emergency lights or a siren. The petition states Leach's conduct was so egregious, outrageous and fraught with unreasonable risk as to shock the conscience of a reasonable person. Plaintiffs alleged Leach intended to expose them to an unreasonable risk of harm without regard to the consequences. They requested punitive damages for his willful, wanton, and reckless conduct.

¶ 13 Plaintiffs did not utilize the phrase “outside the scope of employment” when describing Leach's conduct but their allegations have the same effect. An employee is within the scope of employment while performing assigned job duties and acting in good faith, § 152(12), however “an individual cannot simultaneously act in good faith and in a malicious manner ...” DeCorte, 1998 OK 87, ¶ 14, 969 P.2d at 362. Because the petition alleges Deputy Leach's conduct was willful, wanton, reckless, and outrageous, Plaintiffs have stated a valid claim that he is personally liable based on conduct outside the scope of his employment. Therefore, it was proper for Plaintiffs to name Leach as a defendant.

III.Liability Arising Out of the Operation of an Emergency Vehicle

¶ 14 This case requires consideration of the scope and effect of 47 O.S.2011 § 11–106. The statute creates a privilege, exempting drivers of authorized emergency vehicles from certain traffic regulations under certain circumstances. It governs situations where the driver of an emergency vehicle is (1) responding to an emergency call, (2) responding to a fire alarm, or (3) in pursuit of an actual or suspected violator of the law. 47 O.S.2011 § 11–106(A). For example, when responding to an...