Nail v. City of Henryetta

• Decision Date: 06 February 1996
• Docket Number: No. 83404,83404
• Citation: 911 P.2d 914,1996 OK 12
• Parties: Kiley NAIL, Appellee, v. The CITY OF HENRYETTA, Oklahoma, Appellant.
• Court: Oklahoma Supreme Court

Page 914

911 P.2d 914

1996 OK 12

Kiley NAIL, Appellee, v. The CITY OF HENRYETTA, Oklahoma, Appellant.

No. 83404.

Supreme Court of Oklahoma.

Feb. 6, 1996.

Certiorari to the Court of Appeals, Division 3 Ann Moroney, Trial Judge.

Thomas H. Stringer, Jr., Henryetta, for Appellee.

Charles D. Neal, Jr., Eric D. Janzen, McAlester, for Appellant.

KAUGER, Vice Chief Justice:

The dispositive question presented is whether Gordon Baldwin, a Henryetta police officer, was acting within the scope of his employment when he shoved Kiley Nail (Nail/appellee) thereby subjecting the City of Henryetta to tort liability under the Governmental Tort Claims Act (the Act), 51 O.S.1991 § 151 et seq. We find that the question of whether the police officer was acting within the scope of his employment when the appellee was injured is an issue for jury determination.

FACTS

In May of 1991, Kiley Nail, a fifteen-year-old high school freshman, told his parents that he would be spending the night with a friend. Instead, he attended a prom party held by older high school students at a motel in Henryetta, Oklahoma. After drinking beer and vodka throughout the evening, Nail became extremely intoxicated and ill, and he began to fall in and out of consciousness.

Some of the students drove Nail to the home of a friend's grandmother. Nail mistakenly stumbled onto a porch-like room at the back of a nearby house and began vomiting. The homeowner called the Henryetta Police Department and reported that someone was attempting to break into her house. Police Officer Gordon Baldwin accompanied by an off-duty police dispatcher, responded to the call. When the officer arrived, he found Nail vomiting. Officer Baldwin handcuffed Nail's hands behind his back and began to escort him to the police car. The teenager was so intoxicated that he had trouble walking, but he offered little or no resistance to the police officer. On the way to the police car, the officer dragged Nail from the porch and through the yard. After they arrived at the police station, the officer removed Nail from the police car and began leading him to the police station. While Nail was still handcuffed, the police officer said "I'm tired of your s---," and he pushed Nail, which caused him to fall face down onto a gravel/asphalt surface, breaking his nose, and cutting his face and body. Subsequently, the officer denied that he had pushed Nail.

On May 17, 1991, Nail, through his mother, filed notice of a tort claim with the City of Henryetta (City) under the Act. The City failed to respond to the claim, and it was deemed denied by operation of law. ¹ On September 5, 1991, Nail's mother sued the City. She alleged that Officer Baldwin either intentionally and maliciously or negligently injured Nail by using excessive force when he arrested him. Thereafter, she filed a motion for partial summary judgment requesting that the court find that the City was liable for Nail's injuries as a matter of law. The City moved for summary judgment, arguing that it was not liable for the officer's actions. ²

The trial court entered summary judgment for the appellee and against the City, and it set the cause for a jury trial on the issue of damages only. The jury returned a verdict for Nail in the amount of $100,000.00, and

the trial court entered judgment on the jury verdict. The City appealed, and the Court of Appeals reversed and remanded. It found that because the officer was acting outside of the scope of his employment when Nail was injured, the City was immune from liability under the Act. We granted certiorari on October 9, 1995.

BECAUSE THE QUESTION OF WHETHER THE POLICE OFFICER WAS ACTING WITHIN THE SCOPE OF HIS EMPLOYMENT WHEN THE APPELLEE WAS INJURED IS AN ISSUE FOR JURY DETERMINATION, THE TRIAL COURT ERRED IN GRANTING SUMMARY JUDGMENT.

On certiorari, Nail alleges that: 1) under the Act, the City may not escape liability for the police officer's actions because he was performing his usual and normal duties when he injured Nail; and 2) because the parties do not substantially dispute any of the material facts, the City is liable for Nail's injuries as a matter of law. The City insists that the police officer was acting outside the scope of his employment when he injured Nail, and that the City is immune from tort liability under the Act. The City relies on Parker v. City of Midwest City, 850 P.2d 1065, 1068 (Okla.1993); and Holman v. Wheeler, 677 P.2d 645, 647 (Okla.1983) for its assertions that: 1) the police officer was acting outside the scope of his employment when he injured Nail; and 2) when a municipality's employee acts outside of the scope of employment, the City is immune from liability.

In Parker, this Court addressed the question of whether a municipality may be immunized from liability for a malicious prosecution action under the Act. We recognized that generally: 1) individual employees are immunized from tort liability when they act within the scope of employment; ³ 2) a municipality is not liable for any act or omission of an employee acting outside the scope of employment; and 3) the scope of employment is defined as the "performance of an employee acting in good faith within the duties of office or employment or of tasks lawfully assigned. ⁴ " We noted that an employee could not be acting within the scope of employment if the employee acted maliciously, or in bad faith. Because a claim for malicious prosecution included elements of bad faith, we held that the municipality was immunized from liability under the Act, and that only the individual police officer could be held liable in tort.

In Holman a ten-year-old brought a tort action against a school superintendent, alleging that the superintendent violently and in a fit of intoxicated rage, spanked and beat the child with excessive force. The superintendent countered that: 1) his acts and conduct while he was punishing the child were within the scope of his employment; and 2) because he was acting within the scope of employment, he was immune from individual liability under the Act. The Holman Court found that the governmental immunity afforded by the Act does not extend to employees who act in a wilful or wanton manner while performing functions within the scope of employment. Accordingly, because the superintendent acted in a wilful and wanton manner, we held that he was not protected by the Act, and that he could be held individually liable in tort.

Although both Parker and Holman are helpful, they are not dispositive. The gravamen of the action in Parker was for malicious prosecution which necessarily included elements The Governmental Tort Claims Act is the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort. ⁶ Subject only to the Act's specific limitations and exceptions, ⁷ governmental immunity is waived under the Act and governmental accountability is extended to torts for which a private person would be liable, unless they are committed outside of the course and scope of one's employment or unless they are committed in bad faith or in a malicious manner. ⁸

of bad faith; and in Holman the Court found that the superintendent intended to hurt the student by acting in a wilful and wanton manner and intentionally beating the child with a paddle. Here, Nail alternatively alleges that Officer Baldwin either maliciously and intentionally injured him by using excessive force when the police officer arrested him, or that he negligently caused Nail's injuries. ⁵

Section 152(9) of the Act defines scope of employment as "performance by an employee acting in good faith within the duties of his office or employment or of tasks lawfully assigned by a competent authority." ⁹ Oklahoma law recognizes the applicability of the doctrine of respondeat superior to the Governmental Tort Claims Act. ¹⁰ Under the theory of respondeat superior, one acts within the scope of employment if engaged in work assigned, or if doing that which is proper, necessary and usual to accomplish the work assigned, or doing that which is customary within the particular trade or business. ¹¹ In Rodebush v. Oklahoma Nursing Homes, Ltd., 867 P.2d 1241, 1245 (Okla.1993) we stated 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 Clearly, the officer was acting within the scope of his employment when he arrested Nail and took him to jail. Although the officer denied that he shoved Nail during the arrest, the City does not dispute it. However, material fact questions do exist concerning whether the officer's act of pushing Nail was within the scope of his employment. The police officer was not necessarily attempting to hurt Nail when he shoved him or attempting to cause Nail to fall. The officer's comment, when he pushed Nail could be construed as a manifestation of disgust, rather than an intentional attempt physically to harm Nail. The police officer's subsequent denial that he pushed Nail may have been nothing more than an attempt to conceal his unprofessional conduct.

                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.)
                

The question of whether an employee has acted within the scope of employment at any given time is normally a question for the jury, except in cases where only one reasonable conclusion can be drawn from the facts. ¹² Under the facts presented we...