Sullins v. American Medical Response of Oklahoma, Inc.

OPALA, J.,

concurring in result.

11 The court holds today that a private entity is not a public trust's "agency" within the meaning of the Governmental Tort Claims Act merely because it is contractually obligated to a public trust to provide the latter with services. I concur in the court's bottom-line answer but not in its pronouncement. The determinative issue here is whether the defendant American Medical Response of Oklahoma, Inc. [AMR] may *265 claim implied immunity from tort liability as a municipal ageney. Just as the court does today, I would also answer in the negative. My bottom line is that EMSA (a public trust) lacks statutory power to confer public agency status on AMR (a nongovernmental entity).

I.

ANATOMY OF THE CONTROVERSY

T2 On 21 October 1999 Lloyd Sullins brought suit in the United States District Court for the Western District of Oklahoma against American Medical Response of Oklahoma, Inc. [AMR] and Warren Properties, Inc. His claim was based on an August 1998 incident in which he was injured after diving into the shallow end of a swimming pool at an Oklahoma City apartment complex. Sul-lins injured his spinal cord and nearly drowned. EMSA, the 911 emergency medical service in Oklahoma City, was called to the scene. Sullins claims the ambulance personnel dropped him on his head, exacerbating the injury.

T3 AMR is under contract to provide personnel to EMSA, a public trust created to deliver emergency medical services in Oklahoma. The trust indenture that created EMSA requires its selection of a contractor to maintain all dispatch and field functions. AMR was the operations contractor at the time of Sulling' injury.

A.

AMR's contention

{4 AMR raised a time-bar defense, alleging that the tort action is untimely because Sullins failed to give notice of his claim within one year of the date of injury. Notice is required by the Governmental Tort Claims Act (GTCA). 1 AMR claims that in its capacity as the EMSA-designated operations contractor it qualifies under that act as an agen-ey of a political subdivision which is protected by GTCA-conferred immunity.

B.

Sullins' contention

15 Sullins does not dispute that EMSA is a public trust; he urges that AMR functions as an independent private contractor who is not entitled to GTCA protection.

IL

THE LEGAL SOURCES OF IMMUNITY

T6 The only question before us is whether the AMR's contract with EMSA implicitly designates the former as an agency of, or appendage to, the latter so as to confer upon AMR EMSA's GTCA immunity from tort liability. I conclude that GTCA does not confer on AMR the immunity sought to be drawn from the contract under inquiry.

A.

Federal immunity law

T7 Some federal jurisprudence applies the common-law regime of immunity. In that system, but not in Oklahoma, government immunity from civil liability in tort is allocated on a "functional analysis." 2 In applying *266 this approach, federal courts look to the "na'ture of the functions" performed at the critical time and not necessarily to the status of the defendants. 3 This common-law approach followed by federal courts came to be developed during the nineteenth century. 4 There is here no place for a functional analysis. Oklahoma's legislative regime of immunity has rejected the notion AMR invokes in this context.

B.

Oklahoma's immunity law

8 In contrast to federal law, Oklahoma's immunity regime is governed solely by legislative enactments. The common-law doctrine of sovereign immunity stands abrogated in toto by Vanderpool v. State, 5 the watershed case that altered the essence of government immunity that protects public funds from tort claims by private persons. Vanderpool abrogates the judge-made source of that doctrine. It leaves unaffected the power of the legislature to occupy and regulate the entire Aeld of governmental tort liability. The legislative form of Oklahoma's governmental liability, which is incorporated into the body of this State's statutory law, 6 waives immunity "only to the extent and in the manner" provided in the Act. 7 Save solely for the Act's specific exceptions and limitations, the GTCA extends governmental accountability *267 to all torts for which a private person or entity would be liable. 8

19 Acting in a sovereign capacity, states create agencies to perform a wide range of functions at different levels. The subordinate units of government are not themselves sovereign bodies. 9 Rather, they serve as instrumentalities of the state acting pursuant to delegated authority. 10 - While EMSA may, in the context of this case, be regarded as falling under the umbrella of government immunity, AMR cannot enjoy the same protection without some explicit legislative declaration. There was here neither implicit nor explicit designation of AMR as public agency. No private contract may be viewed as rising to the status of a legislative declaration that is capable of cere-ating a municipal agency. In short, AMR's contention that tort immunity is ipso facto conferred, explicitly or implicitly, by contractual assignment and performance of functions that coincide with governmental mission is contrary to this court's post-Vanderpool exposition of statutory law.

IIL

SUMMARY

[10 There is no Oklahoma common law of governmental immunity. 11 That body of knowledge stands abrogated in toto by Van-derpool. 12 Statutory law does not permit judicial extension of immunity without explicit legislative authority. EMSA, gua public agency, is powerless to transfer its own GTCA-conferred immunity by contract with some private entity. 13 - That power, whose regulation is vested solely in the legislature, must be exercised by unambiguous statutory text.: Courts will not divine immunity from silence. Nor will protection from tort liability be derived from any unclear or doubtful enactment's language. 14

. 51 O.S.1991, §§ 151 et seq.

. First American Bank v. Okla. Indus. Finance Auth., (Opala, J. dissenting) 1997 OK 155, ¶ 24 , 951 P.2d 625, 639 . See, e.g., Richardson v. McKnight, 521 U.S. 399, 403-4 , 117 S.Ct. 2100, 2103-04 , 138 L.Ed.2d 540 (1997) (private prison guards, unlike those who work directly for the government, do not enjoy immunity from suit in a § 1983 case); Clinton v. Jones, 520 U.S. 681, 694 , 117 S.Ct 1636, 1644 , 137 L.Ed.2d 945 (1997) (in a § 1983 action there is no absolute immunity for damages arising from "unofficial conduct"); Buckley v. Fitzsimmons, 509 U.S. 259, 268-69 , 113 S.Ct. 2606 , 125 L.Ed.2d 209 (1993) (there is no absolute immunity for a prosecutor's conspiracy to manufacture false evidence that was later introduced at grand jury proceedings and at trial, or for a prosecutor's out-of-court statements to the press); Burns v. Reed, 500 U.S. 478, 484-86 , 111 S.Ct. 1934, 1938-39 , 114 L.Ed.2d 547 (1991) (prosecutors have absolute immunity for their actions in participating in a probable-cause hearing but not in giving advice to the police); Forrester v. White, 484 U.S. 219, 224 , 108 S.Ct. 538, 542 , 98 L.Ed.2d 555 (1988) (a judge is not entitled to absolute immunity for the "administrative" act of dismissing an employee); Malley v. Briggs, 475 U.S. 335, 342-43 , 106 S.Ct. 1092, 1096-97 , 89 L.Ed.2d 271 (1986) (a police officer is not entitled to absolute immunity for false statements made in a warrant application}; Cleavinger v. Saxner, 474 U.S. 193, 201 , 106 S.Ct. 496, 500 , 88 *266 L.Ed.2d 507 (1985) (there is no absolute immunity for prison disciplinary board members who adjudicate free from various procedural safeguards, including, the right to counsel, cross-examination, a transcript, and direct judicial review); Briscoe v. LaHue, 460 U.S. 325, 342 , 103 S.Ct. 1108, 1119 , 75 L.Ed.2d 96 (1983) (all witnesses, including those who give perjured testimony, are absolutely immune from civil suit under § 1983); Harlow v. Fitzgerald, 457 U.S. 800, 810 , 102 S.Ct. 2727, 2734 , 73 L.Ed.2d 396 (1982) (government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known); Butz v. Economou, 438 U.S. 478, 511-13 , 98 S.Ct. 2894, 2913-14 , 57 L.Ed.2d 895 (1978) (federal officials are not liable for mere mistakes in judgment, whether the mistake is one of fact or one of law); Imbler v. Pachtman, 424 U.S. 409, 420-25 , 96 S.Ct. 984, 990-93 , 47 L.Ed.2d 128 (1976) (state prosecutors have abso-Jute immunity for the initiation and pursuit of a criminal prosecution, including presentation of the state's case at trial).

. Briscoe, supra note 2 at 342, at 1119; Forrester, supra note 2 at 229, at 545 ("it [is] the nature of the function performed, not the identity of the actor who performed it, that inform{[s] our immunity analysis") (emphasis added); Cleavinger, supra note 2 , at 201, at 501 (absolute immunity "flows not from rank or title or 'location within the Government' but from the nature of the responsibilities of the individual official"), quoting Butz, supra note 2 at 511, at 2913.

. See Bradley v. Fisher, 13 Wall. 335 , 80 U.S. 335, 347 , 20 L.Ed. 646 (1871). In this early judicial immunity case, the Supreme Court affirmed the distinction between a judge acting within and without his judicial capacity. "The principle, therefore, which exempts judges of courts of superior or general authority from liability in a civil action for acts done by them in the exercise of their judicial functions, obtains in all countries where there is any well-ordered system of jurisprudence. It has been settled doctrine in the English courts for many centuries, and has never been denied, that we are aware of, in the courts of this country. It has, as Chancellor Kent observes, 'a deep root in the common law.' Yates v. Lansing, 5 Johnson, 282 , 291."

. 1983 OK 82 , 672 P.2d 1153, 1156-57 . Vander pool teaches that in the absence of a statute conferring partial or total immunity, the state, its political subdivisions and their employees acting within the scope of their employment would stand liable in tort in the same manner as a private individual or corporation.

. The GTCA was the Legislature's response to this court's abrogation of sovereign immunity in Vanderpool, supra note 5 at ¶21-23, 1156-1157 (1983). The act is both an adoption and conditional waiver of the sovereign immunity doctrine. The terms of 51 O.S.1991 § 152.1 provide in pertinent part:

"A. The State of Oklahoma does hereby adopt the docirine of sovereign immunity. The state . whether performing governmental or proprietary functions shall be immune from liability for torts.

B. The state, only to the extent and in the manner provided in this act waives its immunity. .22"

{emphasis added).

The terms of 51 0.$.1991 § 153(A) provide in pertinent part:

''The state ... shall be liable for loss resulting from its torts ... subject to the limitations and exceptions specified in this act and only where the state ... if a private person or entity, would be liable for money damages under the laws of this state."

(emphasis added).

. 51 0.$.1991 § 152.1(B).

. The terms of 51 0.$.1991 § 153 provide:

"A. The state or a political subdivision shall be liable for loss resulting from its torts or the torts of its employees acting within the scope of their employment subject to the limitations and exceptions specified in this act and only where the state or political subdivision, if a private person or entity, would be liable for money damages under the laws of this state. The state or a political subdivision shall not be liable under the provisions of this act for any act or omission of an employee acting outside the scope of his employment.

B. The liability of the state or political subdivision under this act shall be exclusive and in place of all other liability of the state, a political subdivision or employee at common law or otherwise."

(emphasis supplied). See also Hughey v. Grand River Dam Authority, 1995 OK 56 , ¶ 3-5, 897 P.2d 1138, 1141-42 .

. First American Bank, supra note 2 at ¶ 11, at 636. Sovereign power resides either in the federal government or in the several states. See Community Communications Co., Inc. v. City of Boulder, Colo., 455 U.S. 40, 50 , 102 S.Ct. 835, 842 , 70 L.Ed.2d 810 (1982); United States v. Kagama, 118 U.S. 375, 379-81 , 6 S.Ct. 1109, 1111-12 , 30 L.Ed. 228 (1886).

. Id. Government "bodies, with limited legislative functions, ... derived from, or exist in, subordination to" state sovereign bodies. Kagama, supra note 9 , 118 U.S. at 379 , 6 S.Ct. at 1111-12 ; See also Benson & Gold Chevrolet, Inc. v. Louisiana Motor Vehicle Comm'n, 403 So.2d 13, 20 (La.1981) ("'the principle is well established that an administrative agency must act in conformity with its statutory authority, which it cannot exceed"). See in this context Shenefield, The Parker v. Brown State Action Doctrine and the New Federalism of Antitrust, 51 Antitrust L.J. 337, 341 (1982) ('[slubordinate [state] agencies operate under delegations of state sovereign power, and can only follow state policy.").

. Common-law protection of judges from tort liability is a rubric entirely distinct from "governmental tort immunity." See Pulliam v. Allen, 466 U.S. 522 , 104 S.Ct. 1970, 1974 , 80 L.Ed.2d 565 (1984). In the Anglo American world of law judges are not regarded as government agents when exercising an adjudicative function. Farrell v. State, 204 Misc. 148 , 123 N.Y.S.2d 29, 32 (N.Y., 1953); Cromelin v. U.S., 177 F.2d 275, 277 (5th Cir., 1949); see Abimbola A. Olowofoyeku, Suing Judges: A Study of Judicial Immunity, Clarendon Press Oxford (1993), pgs. 158, 162 et seq.

. See supra note 5.

. Delegata potestas non potest delegari-one to whom authority stands delegated by law may not, without specific empowerment, redelegate it to another. Bushert v. Hughes, 1996 OK 21 , 912 P.2d 334, 339 ; New Orleans v. Sanford, 69 So. 35, 41 , 137 La. 628 .

. Gunn v. Consolidated Rural Water & Sewer, 1992 OK 131, ¶ 7 , 839 P.2d 1345, 1349 ; Jarvis v. City of Stillwater, 1983 OK 88, ¶ 8-10 , 669 P.2d 1108, 1111 .