United States District Court, W.D. Oklahoma
RUSSELL NATION, individually and as parent and next friend of J.N., a minor and CAROL NATION, individually and as parent and next friend of J.N., a minor, Plaintiffs,
PIEDMONT INDEPENDENT SCHOOL DISTRICT NO. 22 and HOLLY NOELLE MORRIS, Defendants.
L. RUSSELL, UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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 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.”
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
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).
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
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
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
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.
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
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.
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 violated its mandatory duties under the Oklahoma
Children's Code, which it contends created a
non-discretionary duty and therefore Defendant cannot rely on
§ 155(5). To the extent Plaintiffs rely on the alleged
violation of Okla Stat. tit. 10A § 1-2-101(B)(1), the
mandatory reporting provision of the Oklahoma Children's
Code, the Court finds dismissal is appropriate. Accepting
Plaintiffs' factual allegations as true, they do not
sufficiently allege violation of the statute because the
definitions therein limit the scope of the Code's
the relevant timeframe Section 1-2-101(B)(1) provided:
Every person having reason to believe that a child under the
age of eighteen (18) years is a victim of abuse or neglect
shall report the matter promptly to the Department of Human
Id. Section 1-1-105(2) defines abuse in a
limited manner as “harm or threatened harm to the
health, safety, or welfare of a child by a person responsible
for the child's health, safety, or welfare. . . .”
Section 1-1-105(52) defines “person responsible for the
child's health” to include:
a parent; a legal guardian; custodian; a foster parent; a
person eighteen (18) years of age or older with whom the
child's parent cohabitates or any other adult residing in
the home of the child; an agent or employee of a public or
private residential home, institution, facility or day
treatment program as defined in Section 175.20 of Title 10 of
the Oklahoma Statutes; or an owner, operator, or employee of
a child care facility as defined by Section 402 of Title 10
of the Oklahoma Statutes.
definition Ms. Morris is not a person responsible for
J.N.'s health, safety or welfare, and therefore, the
District cannot be held liable for any alleged failure of its
employees to follow the Oklahoma Children's Code and
report the alleged abuse. See M.C. v. Hollis
Indep. School Dist. No. 66 of Harmon County,
Oklahoma, No. CIV-15-343-C, 2017 WL 1102680, *6 (W.D.
Okla. Mar. 23, 2017). Accordingly, Defendant District is
entitled to dismissal of Plaintiffs' negligence claim
premised on the alleged failure to follow the dictates of
Amended Complaint's allegations of negligence include
assertions that Defendant negligently retained Ms. Morris
following the allegations of abuse. (Doc. No. 23, ¶
20(C). As set forth above in Langkamp, negligent
retention claims fall within the discretionary function
exception and accordingly, the motion is granted with regard
to this claim.
Court finds dismissal inappropriate on Plaintiffs'
negligent investigation claim, Amended Complaint ¶
20(D). In Najera v. Indep. School Dist. Of Stroud,
60 F.Supp.3d 1202 (W.D. Okla. 2014), this Court considered a
motion to dismiss addressing a negligence claim similar to
that levied by Plaintiffs herein. Plaintiffs alleged the
minor child was sexually harassed and assaulted by the
softball coach. They pled several theories of negligence,
including failure to maintain safe school premises, negligent
supervision of students and teachers in the gymnasium where
the abuse was alleged to have occurred, and failure to
prevent the continued sexual assault and harassment after the
District was warned of its employee's conduct. The Court
concluded the District was immune under § 155(5) from
the claims that it failed to maintain safe school premises
and negligent supervision of students and teachers in the
gym. The Court refused to dismiss the negligence claim as it
related to allegations that the District failed to prevent
the continued harassment of the student victim once it had
There is no controlling decision from the Oklahoma Supreme
Court on the issue of whether the discretionary function
exemption applies to a case in which a plaintiff alleges that
a school district had notice of a ...