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Supreme Court of Oklahoma.

Daniel BOSH, Plaintiff, v. CHEROKEE COUNTY BUILDING AUTHORITY, et al., Defendant.

No. 111,037.

Decided: February 12, 2013

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.

¶ 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.


¶ 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 October 31, 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.



¶ 7 This controversy centers around the alleged conflict between the Oklahoma Constitution, which protects citizens of the State of Oklahoma from unreasonable seizures7 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 [36 Okla. 657], 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 [163 Okla. 122], 21 P.2d 1 (the servant of the toll bridge company shot an automobile driver when he drove past the toll gate and failed to pay the toll); Russell–Locke Super–Service v. Vaughn, 1935 OK 90 [170 Okla. 377], 40 P.2d 1090 (the servant of a corporation selling and servicing automobile batteries injured the plaintiff in a fight after the servant tried to repossess a battery from the plaintiff's vehicle); Mistletoe Express Service v. Culp, 1959 OK 250, 353 P.2d 9 (the servant for a common carrier of freight assaulted the plaintiff when he refused to accept a television tube after the common carrier denied the plaintiff's claim for damage in transit); and Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, 867 P.2d 1241 (the employee of a nursing home forcefully slapped a combative male Alzheimer's patient while bathing the patient).18

¶ 14 However, different rules apply when the employer is a governmental entity. In Oklahoma, governmental entities were once protected from tort liability through the judicially created doctrine of governmental immunity.19 In 1983, in Vanderpool v. State, 1983 OK 82, 672 P.2d 1153, we abrogated the court created doctrine of governmental immunity and acknowledged the Legislature's right to enact sovereign immunity by statute.20

¶ 15 The Legislature's Political Subdivision Tort Claims Act, now known as the OGTCA, came to be known as the exclusive remedy for an injured plaintiff to recover against a governmental entity in tort.21 Subject to specific limitations and exceptions, governmental immunity was waived under the OGTCA and governmental accountability was extended to torts for which a private person would be liable, unless they were committed in bad faith or in a malicious manner.22

¶ 16 Under the OGTCA, the question for governmental employer liability continued to hinge on whether one acted within the scope of employment by engaging in work assigned, or if doing what was proper, necessary and usual to accomplish the work assigned, or doing that which was customary within the particular trade or business.23 Consequently, governmental employees such as police officers, whether on duty or off duty, have been held to the possibility that conduct such as striking arrestees,24 physically and verbally attacking customers of a private business,25 causing a car accident,26 or injuring detainees/arrestees,27 may have occurred within the scope of employment subjecting their employers to liability.

¶ 17 However, here, the assault was committed not by a police officer, but by an employee of a detention center, and the OGTCA expressly immunizes the state and political subdivisions such as counties and municipalities from liability arising out of the operation of prison facilities.28 This does not mean that injured tort victims are at the mercy of their captors to be beaten, assaulted, and left without medical attention without any remedy to deter such conduct.

¶ 18 In Washington v. Barry, 2002 OK 45, 55 P.3d 1036, this Court held that a private cause of action may exist for inmates to recover for excessive force under the provisions of the Okla. Const. art. 2, § 929 and the 8th Amendment of the United States Constitution30 —despite the provisions of the OGTCA.31

¶ 19 Washington, supra, involved a prisoner who alleged that he was injured when prison officials forcibly removed handcuffs and leg restraints from him. Thus the claim was for excessive force raised by a convicted prisoner in a penal institution. We addressed the existence of a cause of action for excessive force and the requirements a prisoner must meet to assert such a claim. We noted that our analysis differed significantly from prior cases involving pre-incarcerated individuals because plaintiffs who are not prisoners have significantly broader rights from the application of force by police officers making arrests than those who are incarcerated. Accordingly, a prisoner has a significantly greater burden to bear in establishing the right to a cause of action than does a person who is not incarcerated.

¶ 20 The Court further explained that: 1) the OGTCA barred the plaintiff's claims for assault and battery and intentional infliction of mental anguish and emotional distress; but 2) the nature of a claim made under the Oklahoma Constitution differs because a prisoner in a penal institution ordinarily has no right to recover for the use of excessive force by prison employees unless the force applied was so excessive that it violated the prisoner's right to be protected from the infliction of cruel or unusual punishment under the state and federal constitutions.

¶ 21 Though we held that the prisoner in Washington, supra, did not successfully state an actionable claim for excessive use of force by the defendant prison employees, we held such a potential cause of action existed in spite of the OGTCA. We also said that such a cause of action could also exist for persons who were not already incarcerated inmates, because they have significantly broader rights.

¶ 22 The Okla. Const. art. 2, § 30 applies to citizens who are seized—arrestees and pre-incarcerated detainees. In Washington, we declared that, not withstanding the provision of the OGTCA, a private action for excessive force exists pursuant to the Okla. Const. art 2, § 9 for incarcerated persons. Having done so, and having explained that those not yet convicted are assured of even greater rights, it would defy reason to hold that pre-incarcerated detainees and arrestees are not provided at least the same protections of their rights, the same cause of action for excessive force under the Okla. Const. art. 2, § 30.32

¶ 23 The OGTCA cannot be construed as immunizing the state completely from all liability for violations of the constitutional rights of its citizens. To do so would not only fail to conform to established precedent which refused to construe the OGTCA as providing blanket immunity, but would also render the Constitutional protections afforded the citizens of this State as ineffective, and a nullity. Therefore we answer the reformulated question and hold that the Okla. Const. art 2, § 30 provides a private cause of action for excessive force, notwithstanding the requirements and limitations of the OGTCA.33

II. Retrospective.

¶ 24 This is not new ground. We recognized a cause of action for excessive force in Washington v. Barry, 2002 OK 45, 55 P.3d 1036, for prisoners. The Court of Civil Appeals first recognized that the cause of action should extend to pre-incarcerated detainees in Bryson v. Oklahoma County, 2011 OK CIV APP 98, 261 P.3d 627. Today, we recognize that the Court of Civil Appeals' Opinion followed the legal ground which had been plowed by our precedent in Washington v. Barry, 2002 OK 45, 55 P.3d 1036.

¶ 25 The parties disagree whether our holding today should be applied retroactively, before the date of today's decision. This Court is neither prohibited from giving, nor compelled to give, judicial decisions retrospective operation.34 Judicial policy determines whether, and to what extent, a new rule will operate retroactively.35 We may give prospective operation to our announcements when necessary to avoid disruption and to allow a period for adjustment.36 In making such a determination, we must consider: 1) the purpose of the new rule; 2) the extent of reliance on old doctrines; and 3) the burden likely to be imposed on administering the legal process due to additional litigation or curative actions.37

¶ 26 Today's holding was foreshadowed by our decision in Washington v. Barry, 2002 OK 45, 55 P.3d 1036. Recognizing today's holding retroactively will help to maintain a proper balance for law enforcement officials to constrain detainees as needed, but without using unnecessary excessive force that can cause permanent injuries to detainees. Retroactive application will only further and advance proper behavior.

¶ 27 No unfairness or undue hardship would be imposed upon the offending officials, but mere by prospective application would deprive detainees who have suffered injuries from recovering for those injuries. Virtually no inequity will result from retrospective application. Accordingly, we hold that today's decision shall be given retroactive application to all matters which were in the litigation pipeline, state and federal, when Bryson v. Oklahoma County, 2011 OK CIV APP 98, 261 P.3d 627 was decided as well as any claims which arose when Bryson, was decided.



¶ 28 The detainee argues that if a cause of action for excessive force is recognized under the Okla. Const., there is no reason to import federal constitutional standards that have been applied to § 1983 civil rights actions to develop a body of state law. The Authority counters that although the Court does not have to so, it should adopt federal case law standards developed for § 1983 actions rather than to adopt a respondeat superior standard of government liability.

¶ 29 Assaults of excessive force can certainly occur within one's scope of employment.38 Under 42 U.S.C. § 1983, respondeat superior does not serve as a basis for government liability.39 Rather, other standards, depending on the conduct, are applied such as a governmental policy, custom, or direct participation by a governmental employer.40 However, Oklahoma is not bound by the constraints of federal law when determining whether the doctrine of respondeat superior serves as a basis for municipal liability under a cause of action for excessive force pursuant to the Okla. Const. art 2, § 30.41

¶ 30 Oklahoma recognizes the application of the doctrine of respondeat superior to the OGTCA.42 Indeed, in the context of law enforcement, we have taken pains to point out that a municipality is liable for the tortious acts of police officers committed within the scope of employment as defined by the OGTCA.43

¶ 31 In other contexts, the scope of employment has included assaults with excessive force. For example: Rodebush By and Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1993 OK 160, ¶ 12, 867 P.2d 1241 [Intoxicated nurse's aide slapping Alzheimer's patient was acting within the scope of employment.]; Mistletoe Express Serv. v. Culp., 1959 OK 250, ¶ 31, 353 P.2d 9 [Assault on customer by a truck driver within scope of employment.]; Brayton v. Carter, 1945 OK 289, ¶ 10, 196 Okla. 125, 163 P.2d 960 [Automobile accident within scope of employment even though occurred twenty-eight miles out of the way.]; Corn v. City of Sapulpa, 1941 OK 44, ¶ 4, 188 Okla. 418, 110 P.2d 290 [Allegations withstood demurrer that employee could be acting within scope of employment even though he made an illegal u-turn while assigned to a task for employer]; Patsy Oil & Gas Co. v. Odom, 1939 OK 341, ¶ 28, 186 Okla. 116, 96 P.2d 302 [Employer held responsible for employee's taking dynamite caps to well even though employer had not authorized use of dynamite.].

¶ 32 Although a claim for excessive force under the Okla. Const. art 2, § 30 does not arise from the OGTCA, there is no reason why the doctrine of respondeat superior should not apply to hold employers liable for their employees violations of a plaintiff's rights under art. 2, § 30 where the employees act within the scope of their employment.44 The problems of federalism which preclude the application of respondeat superior to § 1983 actions are obviously not present when the action is for a violation of a state's constitution.45 Consequently, the common law doctrine of respondeat superior in tort litigation should apply under State law to municipal corporations. Accordingly, we hold that in an action pursuant to the Okla. Const. art 2, § 30, respondeat superior applies to hold municipal corporations liable for the actions of their employees where those employees are acting within the scope of their employment.


¶ 33 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. This action is recognized retrospectively. The common law theory of respondeat superior applies to municipal liability under such an action to determine when an employee of a municipality uses excessive force within the scope of employment.



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