320 P.3d 33
Okla. Civ. App.2014Background
- Motor vehicle collision occurred while Deputy Leach responded to a call for assistance; Burgins were involved and others injured/killed.
- Plaintiffs sued Leach, Waters, the Sheriff’s Department, and Pawnee County Board; federal removal occurred due to §1983 claims, but state law claims were remanded.
- On remand, trial court dismissed some claims and denied leave to amend; this appeal is under accelerated procedure focusing on issues raised in the petition in error.
- Statute 47 O.S. 2011 §11-106 provides privileges for emergency vehicle operation, potentially affecting liability.
- Plaintiffs alleged negligence, negligence per se, and §1983 claims; federal §1983 claims were dismissed and state law claims remained.
- Court affirms dismissal of negligence per se claim but reverses on remaining state-law claims and remands for amendment and further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Leach is properly named due to scope of employment | Burgin contends outside-scope conduct makes Leach personally liable | Defendants argue employees are immune when acting within scope | Leach properly named; outside-scope conduct pleaded |
| Whether §11-106 privilege applies to liability standard | Plaintiffs rely on reckless disregard under §11-106 | Privilege limits liability to reckless disregard when using emergency signals | §11-106 does not support negligence per se; still limits liability for reckless disregard when applicable |
| Whether plaintiffs stated a claim for operating emergency vehicle outside ordinary care | Allegations show reckless disregard outside employment scope | Allegations fail to state outside-scope liability | Plaintiffs stated a valid claim for reckless disregard outside the scope of employment |
| Whether amendment to add Pawnee County claims relates back or should be allowed | Pawnee County remained a party; amendment should be allowed | Relation back not applicable; state law claims dismissed by federal court | Amendment should be granted; Pawnee County should be recast as liable under G.T.C.A. |
| Whether petition states a valid County liability claim for Leach’s ordinary care | Petition gave fair notice of Pawnee County liability for Leach’s ordinary-care failures | Pawnee County not dismissed previously; limitations issues possible | Petition states a valid Pawnee County claim for Leach’s failure to use ordinary care |
Key Cases Cited
- Nail v. City of Henryetta, 911 P.2d 914 (1996 OK 12) (outside-scope conduct may render police liable personally)
- DeCorte v. Robinson, 969 P.2d 358 (1998 OK 87) (off-duty actions may exceed scope of employment)
- Carswell v. Oklahoma State University, 995 P.2d 1118 (1999 OK 102) (malicious/bad-faith evidence may show outside-scope liability)
- Gurich v. State ex rel. OK Dept. of Public Safety, 238 P.3d 1 (2010 OK 56) (reckless-disregard standard under emergency-vehicle privilege)
- Mansfield v. Circle K Corp., 877 P.2d 1130 (1994 OK 80) (use of statutory duty as the standard for negligence per se)
- Ohio Casualty Ins. Co. v. Todd, 813 P.2d 510 (1991 OK 54) (elements for negligence per se; statutory violation typically not per se unless criteria met)
- Gens v. Casady School, 177 P.3d 565 (2008 OK 5) (pleading standards; notice pleading sufficient without precise theory)
- Roth v. Mercy Health Ctr., Inc., 256 P.3d 64 (2011 OK 2) (liberal amendment and relation-back principles applied)