Oklahoma

quick facts

Oklahoma Government Tort Claims Act

Liability against government entities is governed by the Oklahoma Governmental Tort Claims Act (“OGTCA”). ¹ Although it broadly “adopt[s] the doctrine of sovereign immunity,” it waives immunity and imposes liability “for loss resulting from its torts or the torts of its employees acting within the scope of their employment . . . where the state or political subdivision, if a private person or entity, would be liable for money damages.” ² Suits brought under the OGTCA are brought directly against the government entity. ³ In other words, the OGTCA appears to expressly prohibit courts from creating an implied cause of action for violations of the Oklahoma Constitution. ⁴

Think Intentional Torts, Not Constitutional Rights

As the “private person” language of the OGTCA suggests, liability against the State is largely based on traditional theories of tort liability. Significantly, however, where the underlying tort involves an element of malice or bad faith, courts have held that the OGTCA does not apply. ⁵ In these instances, immunity does not apply and victims of government misconduct may directly sue the official responsible for the injury. Where the OGTCA does apply, however, it provides an exclusive remedy, including for torts “arising from . . . the Oklahoma Constitution.” ⁶ Although this would appear to be a tepid endorsement of implied constitutional causes of action, Oklahoma courts have not recognized as much. ⁷

Even when wrongdoing can be established, either under traditional theories of tort liability or under an implied constitutional cause of action, the OGTCA includes exemptions from liability for certain government conduct. This includes, for example, torts arising out of the “operation or maintenance of any prison, jail or correctional facility.” ⁸ In other words, even if Oklahoma courts began recognizing implied constitutional causes of action, they would still be subject to the OGTCA’s exemptions. ⁹