The Oklahoma Bar Journal September 2025

precluded judicial scrutiny over federal officers, the court in Lee held:

It is not pretended, as the case now stands, that the president had any lawful authority to do this, or that the legislative body could give him any such authority except upon pay ment of just compensation. The defense stands here solely upon the absolute immunity from judicial inquiry of everyone who asserts authority from the executive branch of the govern ment, however clear it may be made that the executive pos sessed no such power. 13 Thus, by 1882, the power of absolute sovereign immunity began to retreat as the judicial branch assumed the role of guard ing individual rights from the abuse of power by its coequal branches of government. In 1946, Congress passed the Federal Tort Claims Act, which statutorily allowed the United States to be sued in the district courts and waived its governmen tal immunity “for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment.” 14 Thus began the genesis of the modern tort claims acts among the states. Legislature enacted the Political Subdivision Tort Claims Act (codi fied at Okla. Stat. Tit. 51 §151, et seq. ), extending political subdivision tort liability for loss resulting from its torts or the torts of its employees acting within the scope of their Sovereign Immunity in Oklahoma In 1978, the Oklahoma

The GTCA distinguishes between a government employee acting within the ‘scope of employment’ and one who was not to determine whether sovereign immunity attaches. 23

employment or duties, subject to the limitations specified in the act. At that time, the doctrine of sovereign immunity in Oklahoma was no lon ger premised upon absolute immu nity from suit but rather stemmed from the dichotomy of the state as either sovereign or proprietor. 15 In Hershel v. University Hospital Foundation , the Oklahoma Supreme Court limited common law immu nity to functions of the state that were inherently governmental rather than merely proprietary. 16 Under this view, the state and its political subdivisions enjoyed immunity when acting in a leg islative or judicial/quasi-judicial capacity. However, in Vanderpool v. State , the Oklahoma Supreme Court would hold that the state could be sued without regard to whether the Legislature had given such consent, express or implied. 17 In the court’s opinion, the role of sovereign immunity began to wither upon the “re-examination of the soundness of the concept ... in the light of the expanded role of government in today’s society ... [resulting in] a retreat from the concept both legis latively and by case law.” 18 Following Vanderpool , the Legislature enacted the GTCA,

abrogated common law sover eign immunity once and for all and replaced it with statute. 19 Although the GTCA codified the doctrine of sovereign immunity in Oklahoma, it simultaneously waived that immunity for a wide swath of tort claims. Thus, the state and its political subdivisions are statutorily immune from tort claims unless the Legislature has expressly waived that immunity. 20 of immunity in certain instances. 21 Specifically, the act provides that the state or political subdivision “shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment.” 22 The GTCA distinguishes between a govern ment employee acting within the “scope of employment” and one who was not to determine whether sovereign immunity attaches. 23 “Scope of employment” is defined by the GTCA as “perfor mance by an employee acting in good faith within the duties of the employee’s office or employment or of tasks lawfully assigned by com petent authority.” 24 The Oklahoma Scope of Employment The GTCA serves as a waiver

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.

18 | SEPTEMBER 2025

THE OKLAHOMA BAR JOURNAL