The Oklahoma Bar Journal September 2025

T orts

The Punitive Paradox: Scope of Employment, Punitive Damages and the Oklahoma Governmental Tort Claims Act By Pete G. Serrata III

I N OKLAHOMA, AN EMPLOYER CAN BE HELD VICARIOUSLY LIABLE for the tor tious acts committed by its employee if the act is “fairly and naturally incident to the busi ness” and is done “while the servant was engaged upon the master’s business ... although mistakenly or ill advisedly ... or from some impulse of emotion which naturally grew out of or was incident to the attempt to perform the master’s business.” 1 On this issue, the Oklahoma Supreme Court has made it clear that vicarious liability can be imposed even if the employee’s actions are found to “evince a wanton or reckless disregard for the rights of another, oppression, fraud or malice” for the purposes of awarding punitive damages. 2

The passage of the Political Subdivision Tort Claims Act in 1978, the predecessor to the Oklahoma Governmental Tort Claims Act (the GTCA or collec tively “the act”), established a leg islative framework for recognizing and limiting sovereign immunity in Oklahoma. The GTCA limits the imposition of vicarious liability on governmental entities to acts com mitted by public employees that are within the “scope of employment” as defined by the act. 3

The effect of the GTCA is two fold: First, the act defines the full extent of the state’s waiver of sov ereign immunity when it comes to claims for tort damages, whether the claims arise from common law, statute or constitutional violations. 4 Second, the GTCA abrogates the common law and limits vicarious liability to actions performed by an employee “acting in good faith within the duties of the employee’s office or employ ment.” 5 Thus, the question arises

whether a jury can find that a pub lic employee was acting within the “scope of employment” and still award punitive damages based on a finding that the employee’s con duct was in “reckless disregard” or “malicious.” Like all good law school pro fessors, the Oklahoma Supreme Court has answered this question with the truism, “It depends.” The Oklahoma Supreme Court’s semi nal case on the issue, DeCorte v. Robinson , builds upon prior

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

16 | SEPTEMBER 2025

THE OKLAHOMA BAR JOURNAL