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BARNARD v. SUTTON2014 OK CIV APP 30321 P.3d 999Case Number: 110841Decided: 11/21/2013Mandate Issued: 03/26/2014DIVISION ITHE COURT OF CIVIL APPEALS OF THE STATE OF OKLAHOMA, DIVISION ICite as: 2014 OK CIV APP 30, 321 P.3d 999
TERESA J. BARNARD, Plaintiff/Appellant,v.EDDIE EUGENE 
SUTTON, Defendant/Appellee,andOklahoma State University, Justin R. Hart, 
Thomas W. Allen, James Battles, Jr., Joe Juller, Robet A. Distefano, and James 
S. Distefano, Defendants.

APPEAL FROM THE DISTRICT COURT OF PAYNE COUNTY, OKLAHOMA
HONORABLE PHILLIP C. CORLEY, JUDGE

AFFIRMED

Rex D. Brooks, REX D. BROOKS, ATTORNEY AT LAW, Oklahoma City, Oklahoma, for 
Plaintiff/Appellant,Mort G. Welch, Sherry L. Smith, WELCH & SMITH, P.C., 
Oklahoma City, Oklahoma, for Defendant/Appellee.


ROBERT D. BELL, JUDGE:
¶1 Plaintiff/Appellant, Teresa J. Barnard, appeals from the trial court's 
grant of summary judgment to Defendant/Appellee, Eddie Eugene Sutton, in this 
tort action arising from an automobile accident. For the reasons set forth 
below, we affirm.
¶2 In February 2006, Sutton was employed as the head men's basketball coach 
at Oklahoma State University (OSU). On February 10, 2006, Sutton negligently 
drove a motor vehicle into Plaintiff's vehicle, causing her injuries. Sutton's 
vehicle was furnished to him by OSU as part of his employment compensation 
package. At the time of the accident, Sutton was in route from the performance 
of work in his office on the OSU campus to the Stillwater Municipal Airport to 
catch a flight with his team for an out-of-town game. Sutton was admittedly 
intoxicated at the time of the accident and subsequent testing revealed a .22 
blood alcohol level. Four OSU employees, Defendants Thomas A. Allen, James 
Battles, Jr., Justin R. Hart and Joe Muller (Employee Defendants), came to 
Sutton's aid after he fell in the parking lot on OSU's campus and witnessed 
Sutton before he left in his car for the airport. Muller offered to drive Sutton 
to the airport and subsequently followed him in a separate car along the way, 
twice attempting to stop Sutton.
¶3 Plaintiff filed the instant suit on August 8, 2007. She sued Sutton for 
negligence, contending he was not acting within the scope of his employment 
because of his intoxication. She sued OSU pursuant to the Governmental Tort 
Claims Act, 51 O.S. 2001 §151 
et seq. (GTCA), claiming OSU was liable for Sutton's acts performed 
within the scope of his employment. She also claimed OSU was negligent in its 
hiring, training and supervision of the Employee Defendants. Plaintiff's claims 
against the Employee Defendants asserted they negligently assisted or enabled 
Sutton to drive the vehicle while he was under the influence. She alleged those 
defendants were not acting within the scope of their employment with OSU when 
they assisted Sutton.1
¶4 On their motion, the trial court granted summary judgment to the Employee 
Defendants. Division II of this Court subsequently affirmed that judgment in 
Barnard v. Allen, Case No. 106,629 (Dec. 30, 2009) (unpublished), 
cert. denied April 7, 2010. The Court held, "even if [the Employee 
Defendants] were acting outside the scope of their employment and knew or should 
have known Sutton was intoxicated, [they] owed no duty to protect Barnard from 
Sutton's negligent driving." Slip Opinion at ¶17.
¶5 On September 20, 2010, Plaintiff moved to transfer venue of her case to 
Oklahoma County. That motion was pending when OSU made - and Plaintiff accepted 
- an offer of judgment for $175,000.00. The trial court entered judgment for 
Plaintiff against OSU in that amount on November 23, 2010. Plaintiff thereafter 
filed a release and satisfaction as to OSU. Plaintiff's motion to transfer venue 
was denied by order dated December 23, 2011, on the ground Plaintiff failed to 
show she could not receive a fair trial in Payne County.
¶6 Plaintiff then filed a motion for partial summary judgment against Sutton, 
arguing Sutton's intoxication prevented him from acting within the scope of his 
duties, within the meaning of the GTCA, when he struck Plaintiff's vehicle. 
Sutton countered by filing a motion to dismiss or, in the alternative, motion 
for summary judgment. Therein, Sutton argued the judgment entered for Plaintiff 
against OSU bars her claims against Sutton. Specifically, Sutton claimed the 
undisputed material facts establish he was driving a vehicle furnished by OSU 
for his use, acting within the scope of his employment, when his vehicle struck 
Plaintiff's vehicle and caused her injuries. Thus, Sutton asserts, he is immune 
from suit under the GTCA.
¶7 The trial court concluded that after the Employee Defendants were granted 
judgment, the only remaining defendants were OSU and Sutton. Plaintiff's claim 
against OSU was premised on the school's vicarious liability for Sutton's 
negligence committed within the scope of his employment. Her claim against 
Sutton was based on his negligence committed outside the scope of his 
employment. The trial court held that when Plaintiff accepted the offer of 
judgment from OSU, she also accepted that Sutton was acting within the scope of 
his employment when he committed his negligent acts against her. Based on that 
finding, the court held as a matter of law Sutton was acting within the scope of 
his employment at the time of the accident, notwithstanding his intoxication. 
The trial court overruled Plaintiff's motion and granted Sutton's motion. From 
said judgment, Plaintiff appeals. This matter stands submitted for accelerated 
appellate review without appellate briefs on the trial court record pursuant to 
Rule 13(h), Rules for District Courts, 12 O.S. 2011, Ch. 2, App., and 
Rule 1.36, Oklahoma Supreme Court Rules, 12 O.S. 2011, Ch. 15, App. 
1.
¶8 This Court's standard of review of a trial court's grant of summary 
judgment is de novo. Hoyt v. Paul R. Miller, M.D., Inc., 1996 OK 80, ¶2, 921 P.2d 350, 351-2. Summary judgment 
is proper when the evidentiary materials "establish that there is no genuine 
issue as to any material fact, and that the moving party is entitled to judgment 
as a matter of law." Shelley v. Kiwash Elec. Co-op., 1996 OK 44, ¶15, 914 P.2d 669, 674.
¶9 As previously set forth, Plaintiff sued OSU pursuant to the GTCA. "The 
Oklahoma Governmental Tort Claims Act is the exclusive remedy by which an 
injured plaintiff may recovery against a governmental entity for its 
negligence." Speight v. Presley, 2008 OK 99, ¶11, 203 P.3d 173, 176. "Under the GTCA, 
[a governmental entity] cannot be held liable for acts or omissions of its 
employees acting outside the scope of their employment." Morales v. City of 
Okla. City ex rel. Okla. City Police Dept., 2010 OK 9, ¶4, 230 P.3d 869, 873 n.5. Stated 
otherwise, "If an employee is acting outside the scope of employment, the GTCA 
does not apply." Speight at ¶11, 203 P.3d at 176.
¶10 OSU is a governmental entity covered by the GTCA. 51 O.S. Supp. 2010 §152(13) 
(definition of "State" includes "university"). Sutton was clearly an employee of 
OSU at the time of the accident. 51 
O.S. Supp. 2010 §152(7) ("'Employee' means any person who is authorized to 
act in behalf of a political subdivision or the state . . ."). An essential 
prerequisite for Plaintiff to recover any damages from OSU for Sutton's conduct 
was a determination that Sutton was acting within the scope of his employment 
when he drove his vehicle into Plaintiff's. If Sutton's conduct fell outside the 
scope of his employment, the GTCA would not have applied and OSU would have been 
immune from Plaintiff's suit.
¶11 By accepting OSU's offer of judgment in this case brought pursuant to 
the GTCA, Plaintiff implicitly acquiesced in a legal truism: OSU's liability 
arose only because Sutton's tortious acts were committed within the scope of his 
employment. Whether Sutton's intoxication constituted conduct falling outside 
the scope of his employment, see, e.g., Holman v. Wheeler, 1983 OK 72, 677 P.2d 645, is not at issue in this 
opinion. By accepting OSU's offer of judgment, Plaintiff accepted that Sutton 
was acting within the scope of his employment when he caused her injuries.
¶12 The GTCA further provides:


A judgment or settlement in an action or claim under this act shall 
    constitute a complete bar to any action by the claimant against an employee 
    whose conduct gave rise to the claim resulting in that judgment or 
    settlement.
51 O.S. 2001 §160. Plaintiff's 
settlement with OSU constitutes a complete bar to her claims against Sutton, 
"whose conduct gave rise to the claim resulting in" the settlement and judgment 
against OSU.
¶13 On the basis of the foregoing and upon de novo review, we conclude 
there exists no issue of disputed material facts and Sutton is entitled to 
judgment as a matter of law. Because Sutton is entitled to judgment as a matter 
of law, we need not address Plaintiff's allegation that the trial court erred in 
denying her motion to transfer venue. The judgment of the trial court is 
affirmed.

¶14 AFFIRMED.

BUETTNER, P.J., and JOPLIN, C.J., concur.

FOOTNOTES

1 
Plaintiff's also named as a defendant another OSU employee, Robert A. Distefano 
(later amended to James S. Distefano). She later dismissed Distefano from the 
case.


Citationizer© Summary of Documents Citing This DocumentCite
Name
Level
None Found.Citationizer: Table of AuthorityCite
Name
Level
Oklahoma Supreme Court Cases CiteNameLevel 1996 OK 44, 914 P.2d 669, 67 OBJ        1190, Shelley v. Kiwash Elec. Cooperative, Inc.Discussed 1996 OK 80, 921 P.2d 350, 67 OBJ        2308, Hoyt v. Paul R. Miller, M.D., Inc.Discussed 2008 OK 99, 203 P.3d 173, SPEIGHT v. PRESLEYDiscussed 2010 OK 9, 230 P.3d 869, MORALES v. CITY OF OKLAHOMA CITY ex rel. OKLAHOMA CITY POLICE DEPT.Discussed 1983 OK 72, 677 P.2d 645, Holman By & Through Holman v. WheelerDiscussedTitle 51. Officers CiteNameLevel 51 O.S. 152, DefinitionsDiscussed 51 O.S. 151, Short TitleCited 51 O.S. 160, Injuries for Which Political Subdivision Liable - Recovery of Payments - Limitations of ActionsCited










