Shaw v. City of Okla. City

• Decision Date: 11 August 2016
• Docket Number: Case Number: 113757
• Citation: 380 P.3d 894,2016 OK CIV APP 55
• Parties: Joshua Shaw, Plaintiff/Appellant, v. City of Oklahoma City, Defendant/Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

380 P.3d 894

2016 OK CIV APP 55

Joshua Shaw, Plaintiff/Appellant,

v.City of Oklahoma City, Defendant/Appellee.

Case Number: 113757

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

FILED AUGUST 11, 2016

Mandate Issued: September 14, 2016

Holly Hefton, Oklahoma City, Oklahoma, for Plaintiff/Appellant,

Richard Carter Smith, Oklahoma City, Oklahoma, for Defendant/Appellee.

Opinion by Wm. C. Hetherington, Jr., Judge:

¶ 1 Joshua Shaw (Plaintiff or Shaw) appeals an order granting the summary judgment motion filed by Defendant Oklahoma City, Oklahoma (City) on Plaintiff's petition filed pursuant to Oklahoma's Governmental Tort Claims Act (GTCA) alleging false arrest, assault and intentional infliction of emotional distress (IIED) against City and four unnamed police officers. Upon review of the evidentiary material submitted to the trial court and applicable law, we AFFIRM the judgment.

FACTS

¶ 2 According to Plaintiff's petition, he was an off-duty McLoud police officer on December 10, 2012, when he met a female friend, a fellow CLEET trainee, at Henry Hudson's Pub on Memorial Road in Oklahoma City. While eating, Plaintiff and his friend were “discussing going to the gun range and shooting their weapons.” An off-duty Village police officer, who was sitting near them, overheard parts of their conversation, and “became concerned the couple was discussing terroristic acts.” The Village police officer discussed his concerns with the bartender, who explained the conversation was not “criminal in nature” and “the pair were also officers.” Despite that information, the Village police officer called Oklahoma City Police Department (OKCPD), reported what he heard, and requested OKCPD to send someone to the location.

¶ 3 The petition further alleges four OKCPD arrived in response to the call. One officer approached Plaintiff from behind, grabbed his shirt, and yanked him off the bar stool. Another officer grabbed Plaintiff, and they dragged him outside, during which Shaw alleges he “repeatedly [told] the officers he is a police officer.” After “one officer notices [Shaw's] badge under his jacket” and they realize he is a police officer, the officers explained “they had a call from an off duty officer about someone discussing shooting an AK–47.” Shaw finally alleges he “was detained for over twenty-five minutes by the OKCPD.”

¶ 4 In the petition's “first cause of action,” Shaw seeks damages for false arrest, alleging “charges were never filed against [him,]” and “as a direct result of Officers John Doe 1–4 official actions, made in the course and scope of their employment , he was falsely arrested and suffered damages.” He contends “City is liable to [him] for damages based upon respondeat superior” in excess of $75,000.00.¹

¶ 5 The “second cause of action” titled “Assault and Intentional Infliction of Emotional Distress,” alleges the officers “intentionally used their power to make an example out of Shaw by using threats, intimidation, and physical force.” In the same paragraph, it alleges each officer “purposefully put [him] in a state of severe distress and embarrassment” and “as a direct result of the intentional conduct, Shaw suffered physical and emotional injuries and severe emotional distress.” He again claims damages in excess of $75,000.00.

¶ 6 The last two paragraphs of the petition allege Shaw complied with GTCA's requirement to file a notice of tort claim within a year of the incident and a petition within 180 days of the denial of his claim. After a prayer for judgment against “the defendants,” Shaw re-asserts his claim for damages in excess of $75,000.00.

¶ 7 City's Answer admits some allegations but specifically denies the material allegations of the petition.² It also admits Shaw's compliance with the jurisdictional requirements of the GTCA and raises numerous affirmative defenses, including it has no liability for its employees' acts beyond the scope of their employment and their actions were based on probable cause.

¶ 8 City later moved for summary judgment, arguing it has no liability under the GTCA for the assault and IIED theories of liability and there was probable cause for the arrest. As its support, City attaches excerpts of Shaw's deposition testimony.

¶ 9 Shaw filed a response which, inter alia ,³ opposes City's probable cause argument based on a violation of § 1272.1, i.e. , unlawful to carry or possess firearms where liquor is consumed. After the City filed a reply brief, the trial court filed its Order sustaining City's motion for summary judgment “on all grounds” on February 17, 2015. Plaintiff appeals.

STANDARD OF REVIEW

¶ 10 This appeal is governed by and follows the procedure set forth in Oklahoma Supreme Court Rule 1.36, 12 O.S. 2011, ch. 15, app. 1, without appellate briefing. The appellate standard of review for a trial court's grant of summary judgment is de novo . Carmichael v. Beller , 1996 OK 48, ¶ 2, 914 P.2d 1051, 1053. When determining whether summary adjudication was appropriate, we must examine the pleadings, depositions, affidavits and other evidentiary material submitted by the parties and affirm if there is no genuine issue as to any material fact and City is entitled to judgment as a matter of law. Perry v. Green , 1970 OK 70, 468 P.2d 483. All inferences and conclusions to be drawn from the evidentiary material must be viewed in a light most favorable to Shaw. Ross v. City of Shawnee , 1984 OK 43, 683 P.2d 535. If the material subject to consideration on a motion for summary judgment either disclose controverted material facts, or, reasonable minds might reach different conclusions even if the material facts are undisputed, a motion for summary judgment should be denied. Hulett v. First National Bank and Trust Company , 1998 OK 21, ¶ 3, 956 P.2d 879, 881.

ANALYSIS

Preliminary Issues

¶ 11 The caption of Shaw's petition includes defendants, City and “Officers John Doe 1–4, individually And in their official capacity.”⁴ After detailing Shaw's version of the facts, his petition identifies two separate “causes of action,” which are actually three theories of liability for a single cause of action, i.e. , his encounter with City's four police officers on December 10, 2012. The order on appeal does not expressly dispose of Shaw's cause of action against the unnamed defendants in their individual capacities.

¶ 12 In the response to City's summary judgment motion, Shaw states “[h]e alleged intentional acts against officers Doe 1–4, in his petition. Since the individuals were never served by [Shaw], he is hereby dismissing his claims of intentional acts.” In City's reply, it relied in part on Shaw's dismissal to support granting summary judgment in its favor. “If after pretrial hearing, an action may only be dismissed by agreement of the parties or by the court.” 12 O.S. 2011 § 684(A). The order on appeal contains no court approval or party agreement for Shaw's dismissal. Nevertheless, because Shaw never served any individual officers prior to the summary judgment, only the liability of the City is at issue on appeal. See GJA v. Oklahoma Dept. of Human Services , 2015 OK CIV APP 32, n. 1, 347 P.3d 310, 318 ; Tanique, Inc. v. State ex rel Oklahoma Bureau of Narcotics and Dangerous Drugs , 2004 OK CIV APP 73, ¶ 10, 99 P.3d 1209, 1213. Consequently, this Court finds the trial court's order filed February 17, 2015 is an appealable order. Carr v. Braswell , 1989 OK 52, 772 P.2d 915.

Intentional Infliction of Emotional Distress

¶ 13 For summary adjudication of Shaw's IIED theory of liability, City cites McMullen v. City of Del City , 1996 OK CIV APP 46, 920 P.2d 528, for its holding that IIED necessarily requires proof that an employee was acting in bad faith, in which case the employee's actions would be outside the scope of their employment and the political subdivision has no liability. City points out McMullen relied on Parker v. City of Midwest City , 1993 OK 29, 850 P.2d 1065, which held the intentional tort of malicious prosecution required a showing of malice and “the Act specifies that a city is not liable for acts of its employees which are outside the scope of employment” and “the statutory definition of ‘scope of employment’ excludes those acts done in bad faith.” Id. , ¶ 10.

¶ 14 Since Parker, the Court in Tuffy's Inc. v. City of Oklahoma City , 2009 OK 4, 212 P.3d 1158, found no error with the trial court's dismissal of the plaintiff's claim for tortious interference with a business relationship against the City alleging its police officers harassed and assaulted nightclub customers, “because the tort requires a showing of bad faith and thus cannot be committed within the scope of employment by an employee of a political subdivision.” Id. , ¶ 15. Based on these authorities, we conclude the trial court did not err in granting summary judgment on Shaw's petition alleging IIED against City for the actions of its employees/police officers.

Assault

¶ 15 City contends it cannot be liable on Shaw's assault claim because that action, as alleged by Shaw, would be outside the scope of the OKCPD officers' employment. Its position is based on excerpts of Shaw's allegations and deposition testimony, about which City argues “because he alleges that the officers intentionally and purposefully assaulted him without justification , the acts are outside the scope of employment and [City] cannot be liable on this claim.” City acknowledges the general rule recognized in Rodebush v. Oklahoma Nursing Homes, Ltd. , 1993 OK 160, ¶ 12, 867 P.2d 1241, that “it is not within the scope of an employee's employment to commit an assault on a third person” and also that rule's exception—“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.” Id.

¶ 16 City specifically argues Shaw's allegations in his petition require a showing of bad faith like malicious prosecution and IIED...