Nation v. Piedmont Indep. Sch. Dist. No. 22, Case No. CIV-18-1090-R

RUSSELL NATION, individually and as parent and next friend of J.N.,a minor and CAROL NATION, individually and as parent andnext friend of J.N., a minor, Plaintiffs, v. PIEDMONT INDEPENDENT SCHOOL DISTRICT NO. 22and HOLLY NOELLE MORRIS, Defendants.

Case No. CIV-18-1090-R

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

September 17, 2019

ORDER

Before the Court is the Motion to Dismiss (Doc. No. 25) filed by Defendant Piedmont Independent School District No. 22, directed to Plaintiff's Amended Complaint. Plaintiff responded in opposition to the motion (Doc. No. 31) and Defendant replied (Doc. No. 32). Upon consideration of the parties' submissions, the Court finds as follows.

Plaintiffs Russell and Carol Nation filed this action individually and on behalf of their son, J.N., who is a student in the Piedmont Independent School District. Plaintiffs allege that during the 2017-18 school year, Defendant Morris, who served as special needs/special education teacher for J.N., verbally and physically abused J.N., as well as other special needs students. Plaintiffs allege that members of the administration were warned of the abuse being inflicted by Morris but failed to take proper actions to stop the abuse.

In considering a motion under Rule 12(b)(6), the Court must determine whether the Plaintiff has stated a claim upon which relief may be granted. A motion to dismiss is properly granted when the complaint provides no "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). A complaint must contain enough "facts to state a claim to relief that is plausible on its face" and the factual allegations "must be enough to raise a right to relief above the speculative level." Id. at 555, 570 (citation omitted). Much of Defendant's motion argues that Plaintiffs' claims are legally insufficient without regard to the sufficiency of the factual underpinnings alleged by Plaintiffs.

In Count 1, Plaintiffs levy a number of claims against the District under the general heading of "negligence," specifically identifying "negligent hiring, retention, training, supervision and premises liability" in the heading. (Doc. No. 23, p. 3). Defendant District seeks dismissal of the Plaintiffs' negligence claims, arguing that the Oklahoma Governmental Tort Claims Act ("OGTCA") shields the District from liability for negligence. In its final argument in the motion, Defendant District also asserts that, because Plaintiffs allege Defendant Morris assaulted J.N., an intentional tort, the District cannot be held liable under the Act.

Under the GTCA, a governmental entity is liable for "torts for which a private person would be liable, unless the torts are committed outside the course and scope of employment or unless they are committed in bad faith or in a malicious manner." Tuffy's, Inc. v. City of Okla. City, 212 P.3d 1158, 1163 (Okla. 2009). "Scope of employment" is defined as an act where the employee performed the act "in good faith within the duties of his office or employment." Id. More specifically, an employee is said to be acting within the scope of employment if the employee is doing that which is customary within the particular trade, engaging in work assigned, "or if doing that which is proper, necessary and usual to accomplish the work assigned." Id.

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 advisedly, 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.

Rodebush v. Oklahoma Nursing Homes, Ltd., 867 P.2d 1241, 1245 (Okla.1993) (citations omitted); see also Baker v. St. Francis, 126 P.3d 602 (Okla. 2005). Ordinarily, the scope of employment determination is one for the jury based on the particular facts and circumstances. Roof v. New Castle Pub. Sch., No. CIV-14-1123-HE, 2015 WL 1040373, at *3 (W.D. Okla. Mar. 10, 2015).

Although Plaintiff's factual allegations are not substantially developed in the Amended Complaint, the Court finds them sufficient to avoid dismissal at this juncture. Plaintiffs allege that Defendant Morris both physically and verbally abused J.N. while serving as his special education teacher in the Piedmont School District during the 2017-18 school year. Although Plaintiffs' claims may not survive summary judgment, given that the issue requires consideration of the particular facts and circumstances, which are not before the Court at the Motion to Dismiss stage, the Court hereby denies the motion on this premise and turns to the issue of whether the OGTCA waives the District's sovereign immunity for Plaintiffs' claims.

Under the Act, sovereign immunity extends to the State's political subdivisions, including the District. 51 O.S. § 152(11)(b). Pursuant to the terms of the OGTCA, the State waives sovereign immunity from suit only in certain circumstances. See 51 O.S. § 153. As relevant here, the Act provides an exemption from liability for performing or failing to perform "any act or service which is in the discretion of the [Defendant] or its employees." 51 O.S. § 155(5). Defendant District argues this section precludes Plaintiff's negligence claims and further argues it is entitled to immunity from Count 1 under § 155(4) of the GTCA, which protects a political subdivision where the allegation is that it adopted or enforced or failed "to adopt or enforce a law, whether valid or invalid, including, but not limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy." Plaintiff's negligence claim includes ten subsections listing alleged failures by the District in its duties to Plaintiff, some of which are overlapping.¹

With regard to § 155(5), as noted by Plaintiffs,

the discretionary function exemption from governmental tort liability is extremely limited. This is so because a broad interpretation would completely eradicate the government's general waiver of immunity. Almost all acts of government employees involve some element of choice and judgment and would thus result in immunity if the discretionary exemption is not narrowly construed. Just as the waiver is not a blue sky of limitless liability, the discretionary exemption is not a black hole enveloping the waiver.

Nguyen v. State, 788 P.2d 962, 964 (Okla.1990)(footnote and citations omitted). The Court finds upon consideration of Plaintiffs' factual and legal allegations, that certain of the negligence claims are barred by § 155(5), while others survive the instant motion.

The Court declines to dismiss Plaintiffs' negligent supervision claims, ¶ 20(A), (E), and (I), in light of the absence of controlling authority on whether such claims are barred. Oklahoma has adopted the "planning-operational" approach, which protects discretionary functions in the policymaking process and as to planning decisions, but not negligent performance of any policy, see Franks v. Union City Pub. Schs., 943 P.2d 611, 613 (Okla. 1997). Although "[d]istinguishing between discretionary and ministerial activities can be difficult," Johnson v. Indep. Sch. Dist. No. 89 of Okla. Cnty., No. CIV-15-680-D, 2016 WL 1270266, *8 (W.D. Okla. Mar. 31, 2016), the Court finds that negligent supervision claims fall within the discretionary function provision.

The Oklahoma Supreme Court has not addressed the question of whether a political entity's failure to hire, train, supervise, monitor, and/or retain its employees falls under the § 155(5) discretionary function exception. See Houston v. Indep. Sch. Dist. No. 89 of Okla. Cnty., 949 F. Supp. 2d 1104, 1108 (W.D. Okla. 2013) (finding no controlling decision regarding the applicability of the discretionary function exception to a similar negligence claim). Nonetheless, the clear weight of authority supports finding that hiring, training, supervision, monitoring, and retention are actions that implicate a political entity's policy and planning functions and therefore fall under the discretionary function exemption of § 155(5). See Johnson v. Indep. Sch. Dist. No. 89 of Okla. Cnty., No. CIV-15-680-D, 2016 WL 1270266, at *8 (W.D. Okla. Mar. 31, 2016) (negligent supervision); Burris v. Okla. ex rel. Okla. Dep't of Corrections, No. CIV-13-867-D, 2014 WL 442154, at *9 (W.D. Okla. Feb. 4, 2014) (negligent hiring, training, supervision, and retention); Seals v. Jones, No. 12-DV-569-JED-TLW, 2013 WL 5408004, at *4 (N.D. Okla. Sept. 25, 2013) (negligent hiring and retention); Houston, 949 F. Supp. 2d at 1109 (negligent supervision and retention); Fumi v. Bd. of Conty. Comm'rs of Rogers Cnty., No. 10-CV-769-TCK-PJC, 2011 WL 4608296, at *6 (N.D. Okla. Oct. 3, 2011) (negligent training and supervision); Burns v. Holcombe, No. 09-CV-152-JHP, 2010 WL 2756954, at *15 (E.D. Okla. July 12, 2010) (negligent hiring, training, and supervision); Jackson v. Okla. City Pub. Schs., 333 P.3d 975, 979 (Okla. Civ. App. 2014) (negligent hiring, training, and supervision).

Langkamp v. Mayes Emergency Servs. Tr. Auth., No. 16-CV-0676-CVE-FHM, 2017 WL 875483, at *4 (N.D. Okla. Mar. 3, 2017). Thus, the Court finds that Plaintiffs' failure to supervise claims should be dismissed.

With regard to Plaintiffs' assertion that Defendant is liable for its employees' failure to report the alleged abuse to the Police, the Court finds Defendant is entitled to dismissal. In response to the Motion, Plaintiffs argue that Defendant...