Winters v. Overton ( 1999 )

MEMORANDUM OPINION

Opinion by

CAROL M. HANSEN, Presiding Judge:

¶ 1 Plaintiff/Appellants, Edwin D. Winters and Kathleen C. Winters, seek review of the trial court’s order granting the motion to dismiss of Defendant/Appellee, Randel L. Overton, on the grounds he is entitled to immunity under the Governmental Tort Claims Act. The Winters sued Overton and Defendant, K.T.E.N. Limited Partnership (KTEN), a television station, for slander, alleging Overton, “an employee of the Oklahoma State Fire Marshall’s office,” “made false and defamatory statements that [they] had spread flammable liquids throughout their residence for the purpose of destroying their home by fire.” They alleged Overton made these statements in a television interview with a KTEN employee and KTEN broadcast the statement “over the television air waves to the general public.” The Winters alleged both Overton and KTEN acted “maliciously, recklessly, and in bad faith.”

¶ 2 Overton moved to dismiss for failure to state a claim upon which relief may be granted, asserting he was immune from suit under the Governmental Tort Claims Act (GTCA), 51 O.S.1991 § 151 et seq., because he was acting in the scope of his employment with the Fire Marshall “at the time of the Accident,” and the Winters had provided no notice as required by the GTCA, 51 O.S.Supp.1992 § 156.¹ The trial court agreed and granted the motion to dismiss. It expressly determined there was no just reason for delay and directed its order was a final appealable order pursuant to 12 O.S.Supp.1995 § 994(A).

¶3 The Winters appeal, contending (1) Overton’s acts were outside the scope of his employment and the notice requirements of the GTCA do not apply to a personal action against Overton, and (2) “Overton’s conduct constituted performance of discretionary act by a government employee, thereby precluding the notice requirement of the [GTCA].” The Winters’ second contention of error appears to reflect a misunderstanding of the GTCA; however, we do not reach that issue because we reverse the trial court’s order based on the first contention of error.

¶4 The GTCA provides the “state, its political subdivisions, and all of their employees acting with the scope of their employment” are immune from liability for torts except to the extent waived in the act. 51 O.S.1991 § 152.1. “Scope of employment” is defined as “performance by an employee acting in good faith within the duties of his office or employment or of tasks lawfully assigned by a competent authority....” 51 O.S.Supp.1994 § 152(9). A state or political subdivision employee acting within the scope of his or her employment may not be named as a defendant. 51 O.S.1991 § 163(C). The state or political subdivision is not liable for the tort of an employee acting outside the scope of his or her employment. 51 O.S.1991 § 153(A). The state’s liability under the act is “exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise.” 51 O.S. 1991 § 153(B).

¶ 5 In reviewing a motion to dismiss, we will take as true all of the allegations in the petition together with all reasonable inferences to be drawn from them. Indiana Nat. Bank v. State Dept. of Human Services, 1994 OK 98, 880 P.2d 371, 375. If Overton maliciously, recklessly, and in bad faith made a false statement to a television reporter that the Winters spread flammable liquids throughout their home in order to destroy it by fire, then he is not protected from liability by the GTCA because such conduct would not be in good faith within the duties of his employment. Therefore, the Winters may sue him personally without complying with the GTCA. The trial court’s order dismissing the petition is REVERSED and this matter is REMANDED for further proceedings consistent with this opinion.

JONES, C.J., concurs. ADAMS, J., concurring specially with separate opinion.

1 . Overton also argued the Winters’ claim was barred by the statute of limitations, 12 O.S.Supp. 1996 § 95(4), because their cause of action arose on July 8, 1996 and their petition was filed on July 21, 1998. The Winters responded that their original petition was filed on July 8, 1997. They dismissed it without prejudice on July 23, 1997, and refiled it on July 21, 1998 pursuant to 12 O.S.1991 § 100. The trial court did not address the issue except to state its ruling was based on the other grounds asserted by Overton.