The Oklahoma Bar Journal September 2025

judgment, arguing that the offi cer’s actions were not within the scope of employment. 48 The trial court entered summary judgment against the city on the issue of liability, and the jury returned a verdict in favor of Mr. Nail in the amount of $100,000. 49 The Court of

Appeals reversed and remanded the judgment on the basis that the officer was acting outside the scope of his employment when he injured Mr. Nail. 50 The Oklahoma Supreme Court disagreed, finding that “the offi cer was acting within the scope of his employment” at the time he arrested the youth and took him to jail. 51 The court reasoned that based on the record, a jury could find the officer was not necessarily intending to hurt Mr. Nail when he shoved him and that his comments could be construed as a manifesta tion of disgust, rather than signal ing an intention to harm him. 52 The court ruled that while the officer’s conduct was clearly unprofessional, the facts themselves are susceptible to more than one rational conclu sion, thus leaving the determi nation of whether the officer was acting within the scope of employ ment well within the province of the jury. 53 Holman , Parker and Nail , the facts and procedural course of each case meant the Oklahoma Supreme Court had never squarely addressed the issue of whether a jury could find that a defendant was both act ing within the scope of employment and had also acted with malice or wanton and willful disregard. When this precise issue arose in DeCorte , Oklahoma jurisprudence was less than clear, leaving some question as to whether a defendant could start by acting within the scope of employment and then later exceed that scope. Although the DeCorte opinion would discuss this theory, the underlying principle would come from the Florida Supreme Court’s decision in McGhee . The Missing Piece Throughout the decisions in

asphalt surface, breaking his nose and cutting his face. 47 Mr. Nail filed suit against the city, alleging that the officer, either intentionally and maliciously or negligently, injured him by using excessive force. The city responded by filing a motion for summary

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.

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THE OKLAHOMA BAR JOURNAL