Bosh v. Cherokee County Building Authority
2013 OK 9
Okla.2013Background
- May 17, 2011 detention-center assault on detainee Daniel Bosh by jailers, including Chronister, resulting in vertebral fracture and surgery.
- Detention center staff attacked detainee while restrained at booking desk; video captured some actions but others off-camera.
- Plaintiff filed state tort and civil rights claims on Sep. 29, 2011; Authority removed to federal court and moved to dismiss under the OGTCA.
- Federal court granted dismissal of state tort claims April 5, 2012, but allowed amendment to plead an excessive force claim under Okla. Const. art. 2, § 30.
- August 30, 2012 the federal court certified three questions of Oklahoma law under the Revised Uniform Certification of Questions of Law Act; this court reformulated them into three questions.
- This opinion answers (1) whether art. 2, § 30 provides a private remedy notwithstanding the OGTCA, and (2) whether respondeat superior applies to municipal liability under art. 2, § 30; and (3) retroactivity of the ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Private remedy under art. 2, § 30 despite OGTCA | Bosh asserts constitutional right to excessive-force action exists regardless of OGTCA. | Authority argues OGTCA immunizes governmental entities from tort liability; art. 2, § 30 provides limited relief. | Art. 2, § 30 provides a private cause of action for excessive force notwithstanding the OGTCA. |
| Respondeat superior as basis for municipal liability under art. 2, § 30 | Plaintiff seeks municipal liability for detainee's injuries. | Defendant contends federal-style §1983 standards govern,not state respondeat superior. | Common law theory of respondeat superior applies to municipal liability under art. 2, § 30 when acts occur within scope of employment. |
| Retroactivity of the decision | Retroactive application necessary to remedy past injuries. | No retroactive obligation implied; prospective only. | Today's decision is retroactive to matters in litigation pipeline as of Bryson and related proceedings. |
Key Cases Cited
- Washington v. Barry, 2002 OK 45, 55 P.3d 1036 (OK Supreme Court 2002) (private action for excessive force despite OGTCA for prisoners and detainees)
- Bryson v. Oklahoma County ex rel. Oklahoma County Det. Ctr., 2011 OK CIV APP 98, 261 P.3d 627 (Okla. CIV. App. 2011) (Court of Civil Appeals recognized excessive-force claim for pre-incarcerated detainees)
- Nail v. City of Henryetta, 1996 OK 12, 911 P.2d 914 (OK Supreme Court 1996) (scope of employment and employer liability concepts cited in applying OGTCA)
- Tuffy's, Inc. v. City of Oklahoma City, 2009 OK 4, 212 P.3d 1158 (OK Supreme Court 2009) (municipality liable for officer acts within scope of employment in policing context)
- N.H. v. Presbyterian Church (U.S.A.), 1999 OK 88, 998 P.2d 592 (OK Supreme Court 1999) (wilful assaults can be within scope of employment under certain circumstances)
- Rodebush By and Through Rodebush v. Oklahoma Nursing Homes, Ltd., 1998 OK 160, 867 P.2d 1241 (OK Supreme Court 1998) (scope-of-employment analysis for employer liability)
- Holman v. Wheeler / Holman, 1983 OK 72, 677 P.2d 645 (OK Supreme Court 1983) (scope of employment and immunity principles for governmental actors)
- Cherry-picked related authorities cited in opinion, N/A (N/A) (various Oklahoma authorities on scope of employment and immunity)