Date: 12-04-2013

Case Style: Russell Arthur Kemna v. City of Enid

Case Number: CJ-2011-387

Judge: Dennis Hladik

Court: District Court, Garfield County, Oklahoma

Plaintiff's Attorney: Carolyn Agnes Miller

Defendant's Attorney: Robert Ray Jones, Jr., David W. Kirk and John H. Wynne

Description: Russell Arthur Kemna sued the City of Enid, County of Garfield, State of Oklahoma, by the City of Enid City Council of the City of Edid, County of Garfield, State of Oklahoma consisting of William E. Shewey Mayor, Mike Stuber, Ron Janzen, Lewis Blackburn, Drew Ritchie, Tammy Wilson, Todd Ging and Eric Benson City Manager and Christopher Lewis, Thomas A. Watts, individually and jointly on personal tort theories claiming:

1. That Plaintiff, RUSSELL ARTHUR KEMNA, and at all times mentioned was, a resident of and whose permanent residence is Pond Creek, County of Grant, State of Oklahoma; that he is Currently an inmate in the Oklahoma Department of Corrections;

2. That Defendant, CITY OF ENID, COUNTY OF GARFIELD, STATE OF OKALHOMA,,, is, and at all times mentioned was, a municipal corporation existing by virtue of the laws of the State of Oklahoma; that the Defendant, CHRISTOPHER LEWIS, is, and at all times mentioned was, to the to the knowledge of Plaintiff, a resident of the City of Enid, County Garfield, State of Oklahoma. That the Defendant, THOMAS A. WATTS, is, and at all times mentioned was, to the knowledge of Plaintiff, a resident of the City of Enid, County Garfield, State of Oklahoma.

3. That at all times mentioned, Defendant police officer, CHRISTOPHER LEWIS, was acting as a police officer for said Defendant municipality. That at all times mentioned, Defendant police officer, THOMAS A. WATTS, was acting as a p9lice officer for said Defendant municipality.

4. That on or about the gth day of March, 2010, at a location between two houses in the 4900 block of Yorkshire, in the City of Enid, County of Garfield, State of Qklahoma, the Defendants Officers, CHRISTOPHER LEWIS and THOMAS A. WATTS, attempted to place Plaintiff under arrest pursuant to an traffic stop.

5. Prior to being placed under arrest, the Plaintiff had refused to stpp for a traffic stop; that when the Plaintiff reached the location between two houses in the 4900 Block of Yorkshire, in the City of Enid, County of Garfield, State of Oklahoma, he pulled over; that the Plaintiff had been ordered by both Defendants Officers CHRISTOPHER LEWIS and THOMAS

A. WATTS, to exit the vehicle; that subsequent thereafter the Plaintiff exited his vehicle and laid face down while eating a cinnamon roll; 6. That in response to Plaintiff, Defendant Officer became verbally abusive, and then proceeded to beat Plaintiff and then struck and pushed Plaintiff in his ribs area, his shoulder and other areas several times. That during the arrest, the Plaintiff was unable to breath as a direct and proximate cause of the improper conduct of said Defendants Officers.

7. That Plaintiff was unable to protect himself from the excessive force used against Plaintiff by Defendants Officers, CHRISTOPHER LEWIS and THOMAS A. WATTS; that Plaintiff suffered the following serious injuries as a result of Defendants officers’ violent, wrongful, unlawful, and intentional conduct, the Plaintiff sustained the following but not limited to the following injuries: permanent injuries to his arm, several broken ribs, loss of mobility, loss of the use of his hand/arm!and elbow, punctured lung, nerve damages, soft tissue damage, hurting his shoulder, face and other injuries. That after arrest the Enid Police Department failed to properly treat or assist the Plaintiff with his injuries; that as a direct and proximate cause the same, the Plaintiff has also sustained personal injuries, from Defendants failure to properly treat and failure to treat that have resulted in permanent injuries, loss of mobility, soft tissue damage, nerve damage, loss of the use of his hand/arm/and elbow, punctured lung, broken ribs, and other permanent injuries; further, Plaintiff is not able to perform his old joblemployment and requires retraining to obtain new employment that will take into account his permanent injuries; further the Plaintiff requires surgery, physical therapy and treatment, in an attempt to correct or assist in lessening the effects of his permanent injuries;

8. As a result of the injuries suffered, plaintiff sustained the following damages: that as a direct and proximate cause the same, the Plaintiff has sustained untreated personal injuries, nor were same properly treated personal injuries that have resulted in permanent injuries, loss of mobility, soft tissue damage, nerve damage, loss of the use of his hand/arm/and elbow, punctured lung, broken ribs, and other permanent injuries; further, Plaintiff is not unable to perform his old job/employment and requires retraining to obtain new employment that will take into account his permanent injuries; further the Plaintiff requires surgery, physical therapy and treatment, in an attempt to correct or assist in lessening the effects of his permanent injuries; that Defendants should retrain for future employment, pain and suffering, medication required by Plaintiff, Physician bills. X-ray bills, future operations, medical treatmentibills associated with medical care, therapy and rehabilitation, incurred or to be incurred, and other damages; that each time the Defendants failed to treat Plaintiff is making a claim against same;

9. On the 1st day of March, 2011, a claim was filed with appropriate officials of Defendant municipality by plaintiff. The claim was denied on the 7th day of June, 2011, that same was mailed on the 9th day of June, 2011, and that denial of the claim reaching plaintiff on the j2th day of June, 2011. Copies of the claim and notice of denial are attached as EXHIBIT “A” the CLAIM AGAINST THE CITY OF ENID, OKLAHOMA, and EXHIBIT “B” the LE1TER FROM THE CITY OF ENID, OKLAHOMA, dated JUNE 7, 2011.

10. That the Plaintiff should be awarded a reasonable attorney fees and costs incurred herein;

11. WHEREFORE PLAINTIFF PRAYS TO THE COURT FOR THE FOLLOWING ORDERS:

A. Judgment against defendants for One Million Dollars ($1,000,000.00);

2. Costs of suit; and

3. Such other and further relief as the Court deems just and proper.

Defendants Enid City Council, Mayor, Councilperson and City Manager appeared and moved to dismiss:

A petition was filed by plaintiff naming the Enid City Council, Mayor, Council Persons and City Manager as defendants. The petition contains no allegations as to these defendants. Plaintiff does not allege that these defendants were acting outside their scope of employment. Plaintiff does not allege malice or bad faith.

Argument and Authorities

Plaintiff has failed to state a claim upon which relief can be granted and his petition must be dismissed as to the Enid City Council, Mayor, Council Persons and City Manager pursuant to Title 12, Oklahoma Statutes, Sections 2012(B)2 and 2012(B)6. The Governmental Tort Claims Act (the “GTCA”) adopts the doctrine of sovereign immunity for all political subdivisions and their employees acting within their scope of authority at Title 51, Oklahoma Statutes, Section 152.1(A). The GTCA later at Section 153 waives sovereign immunity on a limited basis and re-establishes liability for a political subdivision acting tortiously through its employees within the scope of their employment. A “political subdivision” is defined to include a municipality (not a governing body) at Section 152(11) fo the GTCA. An “employee” is defined to include elected members of governing bodies and persons designated to act for a political subdivision. Section 153 does not re-establish liability for a governing body or individual employee acting within the scope of his or her employment. The employee only becomes liable individually if he acts outside his scope of employment.

The plaintiffs petition fails to state a claim against the Enid City Council because the entity continues to enjoy sovereign immunity offered to “governing bodies” under GTCA Section 153. Sovereign immunity has only been waived for”municipalities” (e.g. City of Enid) and employees acting outside their scope of employment.

The plaintiffs petition also fails to state a claim against the individual Mayor, Council Persons and City Manager because there is no allegation that such individuals acted outside their scope of employment as officers of the municipality.

Section 163(C) of the GTCA yields the same result as to both the Enid City Council, Mayor, Council Persons and the City Manager. The political subdivision (i.e. City of Enid) is the only necessary and appropriate defendant in a tort claim wherein the scope of employment is not challenged.

The Oklahoma Supreme Court has recently ruled in a similar claim cited as Carswell v. Oklahoma State University, 995 P.2d 1118 (OkI. 2000). In Carswell, a chemistry student brought suit against the state university and its individual employees. The trial court dismissed the employees because the plaintiff failed to present any evidence that the employees acted maliciously or in bad faith and thus outside the scope of their employment.

In Rooks v. State Through Oklahoma Corp. Com’n, 842 P.2d 773 (Okl.App. 1992), the plaintiff sued the Oklahoma Corporation Commission, the general administrator for the Commission and two Commissioners for wrongful discharge. The trial court dismissed the claim against the individual defendants as members or agents of the Commission because there was no allegation nor evidence presented showing any individual was acting outside the scope of his employment.

The Enid City Council (a governing body) cannot be sued for the acts alleged because it is protected by sovereign immunity. The Mayor, Council Persons and City Manager cannot be sued for the acts alleged as long as they act within the scope of employment. Plaintiffs petition fails on its face and should be dismissed because a cause of action has not been stated and the Court does not have jurisdiction.

Conclusion

Defendants Enid City Council, Mayor, Council Persons and City Manager pray this Court to dismiss the claim.

Plaintiff responded as follows:

1. That the Plaintiff generally and specifically denies each and every allegation, averment and Paragraph as set forth in the MOTION TO DIMISS BY DEFENDANTS CERISTOPHER LEWIS AND THOMRS A. WATTS as filed by the Defendants.

2. That there are no supporting documents therefore this MOTION shall be treated as on for a Motion to Dismiss and not as one for Summary Judgment;

3. That the Petition is one against the City of Enid, Oklahoma, and as such there are many allegations as to these Defendants; that the City was the employer of defendants CHRISTOPEER LEWIS and THOMAS A. WATTS and as such has waived its sovereign irmuunity pursuant to the Governmental Tort Claims Act.

4. That the Plaintiff reserves the right to file additional documents in support of their Response; further the Plaintiff reserves the right to file a Brief in Support of his Response prior to hearing; further, the Plaintiff reserves the right to further plead and amend.

5. That the Enid governing body can be sued for the acts alleged because they have waived their sovereign immunity.

6. That said Defendants should take nothing from their Motion, and the Court should deny same.

Defendants replied as follows:

PROPOSITION I: PLAINTIFF’S CLAIMS ARE RESTRICTED TO POLICE OFFICERS AND CITY OF ENID; “CITY” IS A DISTINCT ENTITY AND DOES NOT INCLUDE CITY COUNCIL MEMBERS, MAYOR OR CITY MANAGER; PLAINTIFF HAS NOT ASSERTED NEGLIGENCE BY CITY COUNCIL MEMBERS, MAYOR OR CITY MANAGER

Plaintiff cites only two claims for relief in his petition, both of which appear in Section 7. The plaintiff asserts that:

“Plaintiff suffered the following serious injuries as a result of Defendants’ officers’ violent, wrongful, unlawful and intentional conduct (emphasis ours); and

“That after arrest the Enid Police Department failed to properly treat or assist...” (emphasis ours).

Thus, plaintiff has alleged claims against only the Enid Police Officers and the Enid Police Department (an agency of the City of Enid). There are no direct claims raised against the City Council Persons, Mayor or City Manager. Plaintiffs assertion in his brief that claims against the City of Enid include by definition the City Council Persons, Mayor and City Manager is false. These individuals are separately and exclusively considered to be an “Employee” by definition under 51 OS. 152(7). Employees are “all institutions, agencies or instrumentalities” within the definition of “MunicipaIity" under 51 0.8. 152(10). The “institutions, agencies or instrumentalities” referred to by 51 0.8. 152(10) include municipal departments (e.g. Police Department), municipal trust authorities (e.g. Public Works Authority) and quasi governmental entities (e.g. Community Development Block Grant programs). Defendant confesses that plaintiffs claim contained in Paragraph 7 of the petition extracted above which asserts a claim against the Enid Police Department is really a claim against the City of Enid under Section 152(10).

PROPOSITION II: DEFENDANTS AGREE THAT CITY OF ENID IS VICARIOUSLY LIABLE FOR THE TORTS OF ITS EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT

Plaintiff and defendants agree regarding the liability of the City of Enid as a political subdivision under the Governmental Tort Claims Act (“GTCA”). City of Enid is vicariously liable for the torts of its employees acting within the scope of their employment. 51 0.5. 153. The plaintiff has the burden to prove the tort. Defendants disagree that such employees also have individual liability - see Proposition III.

PROPOSITION Ill: POLICE OFFICERS HAVE SOVEREIGN IMMUNITY AS LONG AS THEY ARE ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT; PLAINTIFF AGREES OFFICERS WERE ACTING WITHIN SCOPE OF EMPLOYMENT

The GTCA is the exclusive relief available for plaintiff. 51 0.S. 163(C) cannot be more exact. Suits brought pursuant to the GTCA cannot name an employee alleged to be acting within the scope of employment. “Employee” is defined by the GTCA to include not only the police officers but also the City Council Persons, Mayor and City Manager improperly named as defendants herein. Plaintiff confesses on pages 7 and 10 of his brief that the police officers were acting within their scope of employment. Section 163 (C) controls - the officers cannot be named as defendants. The same and stronger argument applies to City Council Persons, Mayor and City Manager because no claims have been raised against them individually and, even if claims were raised, they are employees protected by the GTCA while acting within their scope of employment.

PROPOSITION IV: SUBROGATION PROVISIONS OF 51 O.S. 163(D) DO NOT APPLY

The provisions of 51 0.8. 163(D) prevent a subrogee from pursuing a claim against a political subdivision (e.g. City of Enid). All claims must be brought by the actual party suffering loss. This concept has no application herein. It would apply, for example, if the plaintiffs health insurer tried to recover from the City of Enid for the plaintiff’s cost of treatment. In such an example, the health insurer would be barred by Section 163(D) because the insurer is a subrogee and is not the real party in interest.

PROPOSITION V ROOKS CASE OFFERED BY DEFENDANT FOR LIABILITY ISSUES - NOT PROCEDURE

Admittedly, there is procedural discussion in the Rooks case offered by defendant in its motion to dismiss. The Rooks case was offered by defendants to support the proposition that individual employees should be dismissed in a governmental tort claim when the plaintiff fails to prove the employees acted maliciously or in bad faith. Rooks applies herein because plaintiff has not alleged a malicious act, bad faith or acting outside the scope of employment as to police officers, City Council Persons, Mayor and City Manager. In fact, plaintiff has alleged just the opposite - See confession at Proposition Ill.

There is no issue regarding procedure. Defendants have filed motions to dismiss pursuant to 12 0.S. 2012(B)2 and 2012(B)6 but t offered matters outside the pleadings. Therefore, the rules for summary judgment do not apply.

Conclusion

This Court should dismiss Enid Police Officers Lewis and Watts, all City Council Persons, the Mayor and City Manager. The only appropriate defendant is the City of Enid.

ON March 13, 2012 the Court entered the following order:

1. The Defendants’, Chris Lewis and Thomas A. Watts, Motion to Dismiss is granted.

2. The Defendant, City of Enid, shall file an answer to Plaintiffs petition within 15 days of this order.

The City of Enid answered as follows:

1. Defendant is without knowledge or information sufficient to form a believe as to paragraph 1 of plaintiff’s petition.

2. As to paragraph 2 of plaintiffs petition, defendant admits that the City of Enid is a municipal corporation. Defendant admits that Christopher Lewis and Thomas A. Wafts were employees of the City of Enid on March 9, 2010. Defendant is without knowledge or information sufficient to form a belief as to whether Lewis and Wafts are residents of the City of Enid.

3. As to paragraph 3 of plaintiff’s petition, defendant admits that Christopher Lewis and Thomas A. Wafts were acting as police officers for defendant at the time they arrested the plaintiff on March 9, 2010.

4. As to paragraph 4 of plaintiffs petition, defendant admits that Christopher Lewis and Thomas A. Wafts arrested the plaintiff on March 9, 2010 between two houses in the 4900 block of Yorkshire Street, Enid, Oklahoma.

5. As to paragraph 5 of plaintiffs petition, defendant admits that Christopher Lewis and Thomas A. Wafts pursued the plaintiff until he reached the 4900 block of Yorkshire Street, Enid, Oklahoma, at which time his vehicle became stuck and he was arrested.

6. Defendant denies paragraph 6, 7, and 8, of plaintiffs petition.

7. Defendant is without knowledge or information sufficient to form a belief as to the truth of paragraph 9 of plaintiffs petition.

8. Defendant denies paragraphs 10 and 11 of plaintiffs petition.

AFFIRMATIVE DEFENSES

9. Defendant is exempt or immune from liability under the Governmental Tort Claims Act.

10. The liability of the defendant is limited under the Oklahoma Governmental Tort Claims Act.

11. The plaintiff has not satisfied the requirements of the Oklahoma Governmental Tort Claims Act.

12. The Defendant has properly exercised its police powers.

13. Plaintiffs claims are barred by the statute of limitations or the Governmental Tort Claims Act.

14. Plaintiff is contributorily negligent or comparatively negligent.

WHEREFORE, defendant prays the plaintiffs petition be denied and that defendant be discharged without any costs herein.


The City of Enid moved for summary judgment in its favor asserting the following:

On March 8th, 2010, after an evening of entertainment at the Riverwind Casino in Norman Oklahoma, Plaintiff Russell Kemna decided to spend the night “partying” with his friends, (Ex. 1, Deposition of Kemna, 29: 14-30:6). Kemna went to friends houses in Tuttle and in Enid. Between his two visits, by his own admission, he consumed 1.5 grams or more of methamphetamine, and some marijuana as well. (Id.) One and a half grams was the largest amount of meth ever consumed by Plaintiff in his life. (Ex. 1, 21: 6-11, 25:2-7) Plaintiff last remembered consuming drugs around 12:00AM of March 9,2010 in Enid. (Ex. 1, 30:23). He “blacked out” until sunrise. (Ex. 1, 31:9-17).

Plaintiff’s first memory after his blackout was sitting in his pickup truck at a McDonald’s on Willow street in Enid. (Ex. 1, 31: 16-22). Kemna went inside, ordered a large quantity of food, exited the restaurant, and left in his pickup truck. Kemna admits he was under the influence ofmethatthetime. (Ex. 1,32: 16-18).

As Kemna was driving on Van Buren street in Enid, he saw a police car. Kemna waved at the police car. Kemna estimates he was traveling at about 80 miles per hour. (Ex. 1, 39:10- 40:4). He ran through a stop sign at Chestnut street. He also ran a stoplight at Cleveland and Chestnut. (Ex. 1, 38:10-22). After realizing he was being pursued by the police, Kemna turned into a residential neighborhood and slowed down to a speed between 35 to 50 miles per hour. (Ex. 1, 39: 10-40:7). Kemna’s truck left the street and came to a stop in the yard between two houses. (Ex. 1, 41:25-42:9). Officers of the Enid Police Department subsequently arrested Kemna at that location. Plaintiff has testified that Enid’s officers acted in such a manner as to demonstrate that they wished to physically harm him, and intended to inflict suffering.

PLAINTIFF’S CLAIMS

Kemna has sued the City of Enid for the events surrounding his arrest. Plaintiff claims that Officer Christopher Lewis violently, unlawfully, and intentionally assaulted him during the arrest and broke his ribs, punctured his lung, and caused permanent damage to his arm, among other injuries. (Petition, ¶7). Kemna contends that Officer Thomas Waifs let Officer Lewis unlawfully assault him. (Ex. 1, 54:11-20). Additionally, Kemna contends the officers failed to assist him with his injuries after the arrest. (Petition, ¶7))

1 Plaintiff originally sued the individual offers involved in the incident and a number of municipal officials, in addition to the City of Enid. The Court dismissed all individual defendants by its Orders dated March 13,2012. The individual officers were dismissed because Plaintiff had not alleged they acted “outside the scope” of their employment. Thus, they were entitled to complete “immunity” under Oklahoma Governmental Ton Claims Act (“OGTCA”), 51 0.S. § 152.1(A). See, Motion to Dismiss of Lewis and Wafts, filed December 6,2011.

SUMMARY OF ENID’S ARGUMENT

Plaintiffs claims against Enid sound only in tort and fail because the City cannot be liable for the conduct of its employees that occurs outside the scope of employment, as defined by the OOTCA. The material facts taken in the light most favorable to Kemna, based on his own admissions, demonstrate that the officers acted outside the scope of their employment, as defined by the OGTCA, such that the City of Enid cannot be liable for their allegedly unlawful and malicious conduct. Additionally, there is no evidence to support Plaintiffs negligent medical treatment claim. He was taken to the hospital immediately after the arrest and released for incarceration. For these reasons, Enid is entitled to judgment as a matter of law.

TABLE OF UNDISPUTED MATERIAL FACTS ON SUMMARY JUDGMENT

1. On March 9, 2010, Kemna reached speeds of 80 miles per hour within the city limits of Enid. (Ex. 1, 39:10-40:4)

2. Kenma ran a stop sign and stoplight while being pursued by the Enid Police Department. (Ex. 1, 38:10-22)

3. Kemna entered a residential neighborhood at speeds between 35 and 50 miles per hour. (Ex. 1,39:10-40:7)

4. At the time Kemna was under the influence of methamphetamine and marijuana. (Ex. 1, 32: 16-18)

5. Kemna stopped his truck in the yard between two houses. (Ex. 1,41:25-42:9)

6. Kemna knew that he had been stopped by the police. (Ex. 1, 43: 16-21).

7. Officers Lewis and Watts pointed their guns at Kemna’ s truck and ordered Kemna to get out. (Ex. 1, 42:23-25)

8. Kemna got out of the truck. The officers ordered Kemna to get onto the ground and he complied, while eating a cinnamon roll. (Ex. 1,42:25-43:3).

9. Officer Watts ordered Kemna to put his hands behind his back. (Ex. 1, 43:3-4).

10. Officer Watts then approached Kemna and took Kemna’s left arm and put it behind Kemna’s back, and then laid across Kemna’s back and shoulder. (Ex. 1,47:3-6)

11. Officer Lewis simultaneously put Kemna’s right arm into an arm bar and made his right knee go into the right side of Kemna’s ribs and back. (Ex. 1,48:4-8, 49:8-11,23-25, 50:1-3)

12. Kemna told Lewis to “Get off me, you son of a bitch. You’re killing me.” Lewis responded, “You don’t like that?” then “Take that!” and struck Kemna in the ribs with his knee twice more. (Ex. 1,50:5-10,57:17-21)

13. Officer Watts was aware of the strikes, but did not stop Lewis. (Ex. 1, 57:22-58:2)

14. After Kemna was secured, Officer Lewis jerked Kemna’ s arm and wrist after he had been handcuffed. (Ex. 1, 53:16-20)

15. Kemna claims he did not act in any way to justif, the officers’ knee strikes and arm jerking. According to Kemna the officers over responded, and Lewis intentionally meant to harm Kemna with more force than was necessary to make an arrest. (Ex. 1, 55:10-56:17)

16. Kemna construed the actions of Lewis as vengeful, (Ex. 1, 58:8-15)

17. After Kemna was secured, he asked to be taken to the hospital. Lewis said that Kemna would not be taken, but Officer Watts and Detective Doyle, who had arrived to assist, said that he would. (Ex. 1, 60:6-14)

18. Kemna was taken to the hospital directly from the scene of the arrest with no intermediate stops. (Ex. 1, 61:1-2, 67:t-5)

19, After arriving at the hospital, Lewis grabbed Kemna’s right ann, which was in pain, and yanked him out of the car. (Ex. 1, 67:13-20, 69:3-70;1 1)

20. Kemna reported his injuries to the hospital staff. The staff examined him and took xrays. (Ex.1, 73:21-75:10, 76:10-17)

21. After the x-rays, the staff also performed a blood test upon Kemna. Kenina consented to the test after being advised of his rights by Officer Watts. (Ex. 1,76:19-23,77:2-10)

22. After Kemna was examined and x-rayed, he was discharged by the hospital for release to the jail. (Ex. 1,7810-11)

23. Kemna was transported to the jail without any additional complaint. (Ex. 1, 89:1-90:6)

PROPOSITION I

ENID CANNOT BE LIABLE FOR ITS OFFICERS’ USE OF FORCE BECAUSE THE PLAINTIFF’S TESTIMONY ESTABLISHES THE OFFICERS ACTED OUTSIDE THE SCOPE OF EMPLOYMENT, AS DEFINED BY THE OGTCA.

A. Applicable Legal Standards

The Oklahoma Governmental Tort Claims Act, (“OGTCA”), 51 O.S. § 151, et seq., is the exclusive remedy by which an injured plaintiff may recover against a governmental entity sounding in tort. Fuller v. Odom, 1987 OK 64,741 P.2d 449, 451-52. In the Act, the Legislature adopted and reaffirmed sovereign immunity for the state, its political subdivisions, and all employees acting within the scope of their employment. 51 O.S. § 152.1(A). The Legislature waived immunity, but only to the extent and in the manner specifically defined and provided for by other sections of the Act. 51 O.S. §152.1(B).

Section 152 (12) 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 including the operation or use of an agency vehicle or equipment with actual or implied consent of the supervisor of the employee, but shall not include corruption or fraud. (emphasis added). Section 153(A) of the Act states: “The state or a political subdivision shall not be liable under the provisions of this act for any act or omission of an employee acting outside the scope of his employment.” Accordingly, critical in the analysis for any governmental body’s liability under the Act is whether the conduct of its employee occurred in the good faith performance of his duties. If it does not, sovereign immunity will shield the government.

The Oklahoma Supreme Court has recently and explicitly defined good faith. The term good faith is “a well-known legal concept” that is neither ambiguous nor vague. Sinalygo v. Green, 2008 OK 34, 184 P,3d 554, 559. Bad faith is the opposite of good faith. But, “it does not follow that good faith is merely the lack of bad faith.” Id. Actions can be taken without bad faith, but “fall short of the reasonable diligence required of good faith.” Id. The concept of good faith can be found in the statutory law and in the common law of commerce, tort, property, and crime. Ic!. No matter where it is found in the law, good faith exemplifies one universal principle; “due diligence is the hallmark of good faith.” Id.

The Supreme Court’s definition of good faith clarifies the parameters of the government’s, and its employees’, immunity under the OGTCA. To breach the government’s sovereign immunity in a civil action, its employees must perform their official duties with that degree of care and attention that constitutes good faith. This is not to say that the degree of care and attention that is good faith is the same as the degree of ordinary care. An employee’s slight or ordinary negligence, can be in good faith and potentially exposes the government to liability. An employee can make an honest mistake, but still be acting in good faith. Accidents do happen. See, McMullen v. City of Del City, 1996 OK CIV APP 46, 920 P.2d 528.

However, an employee who acts with reckless disregard is grossly negligent, and does not act in good faith. See, Myers v. Lashley, 2002 OK 14, 44 P.3d 553, 563(gross negligence “is reckless indifference to the consequences” and can support a claim for punitive damages). Similarly, an employee who acts with willfulness or careless disregard cannot act in good faith. See, Id. (bad faith can be inferred from some intentional torts or wrongs); see also, Farrett v. UNICCO Service Co. ,2005 OK 54, 127 P.3d 572, 575-77(describing the tort liability continuum in Oklahoma). Actions or omissions that are grossly negligent or in careless disregard form quasi or actual intent to cause harm. Id. at 577. Consequently, such conduct must fall outside the parameters of good faith as defined by the Oklahoma Supreme Court. In Graham v. Keuchel, the Oklahoma Supreme Court explained that tortious conduct is divided into two categories: “(I) negligence and (2) willful acts that result in intended or unintended harm.” Id., 1993 OK 6,847 P.2d 342, 362. The Court has defined willfulness in tort to include conduct that is “intentional, knowing or voluntary, as distinguished from accidental.” Barnetr v. Simmons, 2008 OK 100, 197 P.3d 12. Willfulness does not always require the existence of malice. Id There are varying degrees of willfulness, but the Court has stated that willfulness is characterized by “conduct marked by careless disregard.” Id.

Assault and battery, in Oklahoma, both require a showing of intentional actions intended either to cause a harmful touching, or the apprehension of imminent, harmful contact. Such intent to harm, absent a privilege, cannot occur in “good faith.”

A police officer, in making an arrest, must commit an assault and battery. Thus, a police officer is privileged to use reasonable force to make an arrest. See, Anne/er v. State, 1951 OK CR 35, 229 P.2d 238, 239. However, if an officer exceeds this privilege, bad faith is demonstrated, and the officer may be subject to criminal prosecution for assault and battery. See, Id.

Enid may not be liable for its officer’s privileged conduct. Neither can it be liable if an officer’s “battery” is unprivileged, excessive and criminal, since these acts could not be in “good faith” and would accordingly be “outside” of the officer’s scope of employment as defined by the OGTCA, Either the officers’ use of force - battery - was privileged such that neither he nor his municipal employer may be liable, or the force used was excessive, “outside” the scope of the officer’s lawful duties, unprivileged and criminal, as is required to prove battery. If the latter, Enid cannot be liable since an “intent to harm” cannot be in “good faith,” taking the officer “outside” the scope of employment. It bears repeating that a municipal employer may only be liable in tort for the conduct of its employees which occurs “within,” but not “outside,” the scope of employment, defined as “good faith” behavior. 51 0.5. § 15202), 153(A).

The above authority demonstrates that some intentional torts, such as “battery,” require a showing of willfulness or careless disregard that is diametrically opposed to official duties performed in good faith. A governmental employee cannot possibly exercise some degree of care and attention in the performance of his duties, in order to be in “good faith,” while at the same time act with careless disregard or an intent to harm. Just like the good faith/malice comparison, it is a legal impossibility to show someone has both acted with some degree of care and, at the same time, with careless disregard. See, Parker v. Midwest City, 1993 OK 29, 850 P.2d 1065, 1068.

This reasoning was recently employed by the Honorable Robin J. Cauthron, United States District Judge for the Western District of Oklahoma in Craig v. City of Hobart, Case No. CIV09-53C. (Feb.24, 2010, Order, at pages 6-9, attached as Exhibit 2.) There, Judge Cauthron held that both “assault” and “battery,” under Oklahoma law, require a showing of elements which would take a law enforcement officer outside the scope of employment, so that his municipal employer could not be liable under these tort theories. Enid respectfully urges this Court to reach the same conclusion.

Recently, in Morales v. City of Oklahoma City, 20100K 9,230 P.3c1 869, the Oklahoma Supreme Court spoke on a police officer’s privilege to use force. All officers are entitled to use “force” in an arrest and the use of “appropriate force” is privileged. Thus the officer’s acts can only be tortious where the force used is excessive and unprivileged.

The Supreme Court recognized that police officers have a “special dispensation” from the centuries old rule that one has a duty to refrain from harm causing conduct that might otherwise arise from the relationship between a law enforcement officer and a member of the public when the officer is making an arrest. Morales, ¶ 25. This is so because exposure of the suspect to injury is an inherent part of the activity. All arrests involve the use of some form of restraint, interference with the arrestee’s liberty and the exercise of custodial control over another person. Each of these poses some risk of harm to the arrestee. Even when an arrest occurs with minimal force, an offensive contact takes place. If police officers were exposed to suit every time the risk of harm inherent in an arrest culminated in actual harm, law enforcement would grind to a halt. Morales, ¶ 25. (Emphasis in original.)

B. The Effect of Plaintiffs Admissions

Once an officer decides to enforce a law, he must do so in a lawful manner. Here, Plaintiff claims that Enid is liable for its police officers’ conduct because his arrest did not occur with “lawful” force. Because Morales, supra, teaches that some force is privileged and cannot be the basis of a claims for “unlawful” use of force, Plaintiffs claim against Enid is necessarily based on a contention that “unlawful” or “excessive force” occurred. But, the use of “excessive force” by a police officer in Oklahoma is a crime. 22 OS. § 34.12

It is logically and legally impossible for a police officer to commit the criminal act of using “excessive force” while remaining “in good faith” performance ofhis duties. Criminal acts and good faith are mutually exclusive. Also, the crime of “excessive force,” by definition, “exceeds the force...permitted by law” or the policies of the officer’s employing agency. Such conduct could not be within the scope ofduties, since it would not be within “lawfully” assigned duties as required by the OGTCA. 51 0.S. § 152 (12); 22 O.S. § 34.1 (B) An officer cannot “lawfully” use “unlawful” force.

Here, Kemna’s testimony establishes that the officers’ conduct was not performed in good faith, a necessary element imposed under the OGTCA for any tort liability against a

2A Any peace officer ... who uses “excessive force” in the performance of his law enforcement duties shall be subject to the criminal laws of this state to the same degree as any other citizen. B. As used in this act, “excessive force” means physical force which exceeds the degree of physical force permitted by law or the policies and guidelines of the law enforcement entity.

municipality. When Lewis made his right knee go into the right side of Kemna’s ribs and back, Kemna told Lewis to “Get off me, you son of a bitch. You’re killing me.” (Uncontroverted Fact Nos. 11 andl 2) Instead of acting professionally and in good faith, Kemna says Lewis responded, “You don’t like that?” then “Take that!” and struck Kemna in the ribs with his knee twice more. (Uncontroverted Fact No. 12). After Kemna was secured with handcuffs, Kemna says Officer Lewis jerked Kemna’s arm and wrist. (Uncontroverted FactNo. 14) Kemna says Officer Watts was aware of the strikes, but did not stop Lewis. (Uncontroverted Fact No. 13).

Kemna claims he did not act in any way to justify the officers’ treatment and conduct toward him. According to Kemna the officers over responded, and Lewis intentionally meant to harm Kemna, in excess of the officers’ privilege. (Uncontroverted Fact No. 15) Kemna construed the actions of Lewis as vengeful. (Uncontroverted Fact No. 16) Kemna’s testimony establishes the officers did not act in good faith and were “outside” the scope of their employment under the OGTCA, as a matter of law. Thus, the officers’ conduct could not have been conducted within the scope of their lawful duties, since excessive force is a criminal act. According to Kemna’s testimony, the officers exceeded the privilege to use force. It necessarily follows that any such conduct would not be in “good faith” and thus, would be “outside” the scope of employment. 51 O.S. § 152(12) and § 152.1 For this reason, Plaintiff’s claim against Enid for its police officers’ conduct regarding the use of force fails, and Enid is entitled to judgment as a matter of law. Enid is not liable in tort for its employees’ conduct “outside” the scope of their employment.

PROPOSITION II

THERE IS NO EVIDENCE TO DEMONSTRATE THAT THE OFFICERS FAILED TO TRANSPORT KEMNA FOR MEDICAL TREATMENT AFTER HIS ARREST.

Plaintiff complains “that after the arrest the Enid Police Department failed to properly treat or assist the Plaintiff with his injuries.” (Petition, ¶7) Kemna’s own testimony shows it is undisputed that he was transported to the hospital immediately after his arrest. (Uncontroverted Fact No, 18). Undoubtedly, Plaintiff may complain that Lewis “said” Kemna wasn’t going to the hospital. Even so, Kemna’s own testimony shows he received medical treatment at the hospital in Enid immediately after the incident at issue. While at the hospital, Kemna reported his injuries to the hospital staff. The staff examined him, and took x-ray’s. (Uncontroverted Fact No. 20) After the x-rays, Kemna’s blood was tested. (Uncontroverted Fact No. 21) After the hospital examined and x-rayed Kemna, it discharged him for release to the jail. (Uncontroverted Fact No. 22)

There is no evidence to demonstrate that the police department prevented Kemna from communicating his complaints to the hospital staff. There is no evidence to demonstrate that the police department removed Kemna from the care of the hospital before he was discharged. There is no evidence to demonstrate the hospital wanted Kemna to see a specialist or go to another facility for more thorough examination or intensive treatment. Rather, the record shows that Kemna was discharged by the hospital for release to thejail. Consequently, any claim based upon a denial of medical care fails, and Enid is entitled to judgment as a matter of law.

CONCLUSION

Plaintiff’s claims against the City of Enid fail because the city cannot be liable for the conduct of its employees that occurs outside the scope of employment as defined by the Oklahoma Governmental Tort Claims Act (“OGTCA”). The material facts taken in the light most favorable to Kemna demonstrate that the officers acted outside the scope of their employment as defined by the OGTCA such that the City of Enid cannot be liable for their allegedly unlawful and malicious conduct. Neither is there any fact to demonstrate Enid failed to deliver Kemna to the hospital for medical treatment. For these reasons, Enid is entitled to judgment as a matter of law.

Outcome: On this day of November, the court considered the Motion for Summary Judgment filed by the City of Enid, Plaintiff’s response, and the City of Enid’s reply. 51 OS. 153 provides:

A. The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. The state or a political subdivision shall not be liable under the provisions of this act for any act or omission of an employee acting outside the scope of his employment.

B. The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise.

Plaintiff contends he was maliciously or negligently injured by officers during a lawful arrest, and that they failed to provide proper medical treatment. The City of Enid contends there is no evidence to support the negligence claim; and, if the officers acted maliciously, they would have been acting outside the scope of their employment.

While attaching a significant number of documents to his response, Plaintiff has failed to specifically controvert Defendant’s statements of fact and refer to supporting material. The Defendant’s statements of fact are deemed admitted.

In making this arrest, the officers were allowed to use reasonable force.

However, excessive force and intentional harm cannot be in good faith and is not privileged. Plaintiff contends the during the take down and prior to being handcuffed the officer stated “You don’t like that?” then “lake that!” and then struck Plaintiff in the ribs with his knee twice more. Plaintiff contends the officer’s actions were vengeful. He also contends that upon arrival at the hospital, his arm was hurt when he was yanked out of the police car.

Defendant was under the influence of methamphetaminc and marijuana. He had been taking meth daily, and had ingested about 1 V2 grams of meth shortly before the incident. He ran a stop sign and red light while being pursued by officers at speeds reaching 80 miles per hour through Enid’s neighborhoods, finally stopping in a yard between two homes. He was ordered out of the vehicle at gunpoint and ordered to the ground. After he was secured, he was taken directly to the hospital for treatment where he was examined and discharged.

Under these facts, no reasonable juror could conclude that the officers acted negligently, maliciously, or outside of the scope of their authority. Summary judgment is granted in favor of the Defendant City of Enid.

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