Center for America

State Tort Law Profile

State List

 

Oklahoma

Last updated 08/25/2009

Analysis prepared for the Center for America by Shook, Hardy & Bacon L.L.P

Liability

Joint and Several

Economic Damages

Limited

Joint and several liability applies only if (1) responsibility attributed to defendant is greater than 50%; or (2) a joint tortfeasor acted with willful and wanton conduct or with reckless disregard and the conduct is the proximate cause of the injury.  Does not apply to actions brought by or on behalf the state.  

Okla. Stat. Ann. tit. 23 § 15 (as amended by H.B. 1603, Reg. Sess. (Okla. 2009)).

 

Non-Economic Damages

Limited

See above.

 

May a Jury Allocate Fault Among All Persons Contributing to an Injury?

Yes

Bode v. Clark Equip. Co., 719 P.2d 824 (Okla. 1986); Paul v. N.L. Indus., 624 P.2d 68 (Okla. 1980).

Market Share Liability

No

The Oklahoma Supreme Court has indicated that, if it applied market share liability, the court would only apply it to fungible products.

Case v. Fibreboard Corp., 743 P.2d 1062 (Okla. 1987).

 

Defenses

Comparative Negligence

Yes, modified

A plaintiff may not recover if his or her negligence is of greater degree than the combined negligence of any person causing such damage.  

Okla. Stat. Ann., tit. 23  §§ 13-15.

Comparative negligence does not reduce recovery in strict product liability cases.

Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla. 1974).

 

Assumption of Risk

No, in negligence actions

Yes, in product liability actions

“What is in actuality lack of due care or heedlessness on the part of a plaintiff is often mislabeled assumption of risk.  For risk assumption to avail as a defense to a tort claim for negligence there must either be an express agreement, a pre-existing status between the defendant and plaintiff, or an element of consent to the harm that is known and appreciated by the plaintiff.  Anything falling outside these areas is simply contributory negligence.”

Thomas v. Holliday, 764 P.2d 165 (Okla. 1988).

A consumer can assume the risk of a known defect without specific technical knowledge of the cause of the product’s dangerous defective condition.  Assumption of risk requires a showing that he danger was known, the risk was understood, and the taking of the risk was unreasonable.

Kirkland v. General Motors Corp., 521 P.2d 1353 (Okla. 1974); Holt v. Deere & Co., 24 F.3d 1289 (10th Cir. 1994); see also Okla. Stat. Ann. tit. 23, § 12.

 

Product Misuse

Yes

The defense of misuse or abnormal use of a product refers to cases where the method of using a product is not that which the maker intended or is a use that could not reasonably be anticipated by a manufacturer. A distinction is made between use for an abnormal purpose and use for a proper purpose but in a careless manner. The Oklahoma Supreme Court has emphasized the latter element of foreseeability, stating that “to determine whether the use of a product is abnormal, we must ask whether it was reasonably foreseeable by the manufacturer. A manufacturer is not liable for injuries resulting from such use if it is not foreseeable.”  

Fields v. Volkswagen of Am., Inc., 555 P.2d 48 (Okla. 1976); see also Stuckey v. Young Exploration Co., 586 P.2d 726, 730 (Okla. 1978); Basford v. Gray Mfg. Co., 11 P.3d 1281, 1293 (Okla. App. 2000).

 

Compliance With Government Standards

No

Evidence of compliance or noncompliance with government standards is admissible, but not determinative.

Attocknie v. Carpenter Mfg., Inc., 901 P.2d 221, 228 (Okla. App. Ct. 1995); Bruce v. Martin-Marietta Corp., 544 F.2d 442 (10th Cir. 1976).

 

Statute of Repose

No, except in cases involving improvements to real property*

10-year statute of repose in tort actions involving improvements to real property.

Okla. Stat. Ann. tit. 12 § 109; see also Morin v. Coral Swimming Pool Supply Co., 867 P.2d 494 (Okla. App. Ct. 1993) (declaring statute constitutional); Riley v. Brown & Root, Inc., 836 P.2d 1298 (Okla. 1992); St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915 (Okla. 1989).

Government Contractor Defense

Uncertain

A federal district court interpreting federal court rulings has found that the government contractor defense is not strictly limited to contracts for military equipment.

Andrew v. Unisys Corp., 936 F. Supp. 821 (W.D. Okla. 1996).

 

McLawsuits Permitted? 

Can a food manufacturer, distributor, seller, or retailer be sued based on an individual's weight gain, obesity, or obesity-related health condition?

No

H.B. 1603, Reg. Sess. (Okla. 2009) (to be codified at Okla. Stat. Ann. tit. 76, § 36 (effective Nov. 1, 2009)).

Compensatory Damages

Is there a statutory limit on economic damages?

No

 

 

Is there a statutory limit on non-economic damages?

Yes

Non-economic damages are generally limited to $400,000.

The noneconomic damage cap does not apply in cases of professional negligence against a physician if the judge and jury find, by clear and convincing evidence, that 1) the injured person suffered permanent and substantial physical abnormality or deformity; 2) permanent physical functional injury which prevents the injured person from independently caring for themselves; or 3) the defendant's acts were reckless, grossly negligent, fraudulent or intentional.  The cap also does not apply if the trier of fact finds by a preponderance of evidence that the above criteria is met.  

H.B. 1603, Reg. Sess. (Okla. 2009) (to be codified at Okla. Stat. Ann. tit. 23, § 61.2 (effective Nov. 1, 2009)).

 

Noneconomic damages in obstetric and emergency care cases are limited to $300,000.  In 2004, the $300,000 noneconomic damage limit was extended to any medical liability action provided the defendant has made an offer of judgment and the verdict awarded plaintiff is less than 1 ½ times the amount of the final offer.

Requires annual adjustment of damage cap based upon any positive increase in Consumer Price Index.  

The noneconomic damage cap does not apply if nine or more jurors find: (1) by clear and convincing evidence defendant committed negligence; or (2) by a preponderance of the evidence defendant was willful or wanton.  

Limits do not apply in wrongful death actions.

Okla. Stat. Ann., tit. 63 § 1-1708.1F (section terminates on Nov. 1, 2010).

 

Is recovery for medical monitoring permitted without physical injury?

Unlikely

Cole v. Asarco Inc., 256 F.R.D. 690, 695 (N.D. Okla. 2009) (“Oklahoma law requires plaintiffs to demonstrate an existing disease or physical injury before they can recover the costs of future medical treatment that is deemed medically necessary.”).

 

Punitive Damages

Is there a statutory limit?

Yes

Punitive damages may not exceed the greater of $100,000 or compensatory damages.  Where the jury finds by clear and convincing evidence that the defendant acted with malice or an insurer intentionally acted in bad faith, punitive damages may not exceed the greater of $500,000 or two times compensatory damages or the amount of the increased financial gain to the defendant.  

Okla. Stat. Ann., tit. 23 § 9.1.

 

Is there any restriction on imposing multiple punitive damage awards for same conduct?

No

 

Does the state receive a portion of the punitive damage award?

No

 

What standard is used?

Clear and convincing evidence

Okla. Stat. Ann., tit. 23, § 9.1.

Procedures 

Venue

 

 

Conducive to Abuse - 
Does the statute permit forum shopping?


No

Civil action against a domestic corporation may be brought in the county in which it is situated, or has its principal office or place of business, or in which any of the principal officers thereof may reside, or be summoned, or in the county where the cause of action or some part thereof arose, or in any county where a codefendant of such corporation created by the laws of this state may properly be sued.

Okla. Stat. Ann. tit. 12, § 134.

 

In addition to the other counties in which an action may be brought against a nonresident of this state, or a foreign corporation, such action may be brought in any county in which there may be property of or debts owing to such defendant, or where such defendant may be found, or in any county where a codefendant may properly be sued; if such defendant be a foreign insurance company the action may be brought in any county where such cause of action, or any part thereof, arose, or where the plaintiff resides or where such company has an agent.

Okla. Stat. Ann. tit. 12, § 137.

 

Venue in actions brought under the Affordable Access to Health Care Act is limited to the county where cause of action arose; county where any defendant resides; or county where corporation defendant has its principal office or place of business or any county where corporation codefendant may be sued.  Requires courts to transfer or dismiss case upon finding lack of venue. The court must transfer rather than dismiss a case upon finding lack of venue if dismissal would operate as dismissal with prejudice.

Okla. Stat. Ann. tit. 12, § 130.

Class membership in class action lawsuits, unless otherwise agreed to by the defendants, shall include residents of the state, or nonresidents who 1) own an interest in property located in the state where the property is relevant to the class action or 2) have a significant portion of the nonresidents cause of action arising from conduct occurring within the state.

H.B. 1603, Reg. Sess. (Okla. 2009) (to be codified at Okla. Stat. Ann. tit. 12, § 2023 (effective Nov. 1, 2009)).

 

If the court, upon motion by a party or on the court’s own motion, finds that, in the interest of justice and for the convenience of the parties, an action would be more properly heard in another forum either in this state or outside this state, the court shall decline to exercise jurisdiction under the doctrine of forum non conveniens and shall stay, transfer or dismiss the action.

H.B. 1603, Reg. Sess. (Okla. 2009) (to be codified at Okla. Stat. Ann. tit. 12, § 140.2 (effective Nov. 1, 2009)).

 

Class Actions

 

 

Is there a right to an immediate appeal of class certification?

Yes

Okla. Stat. tit. 12 § 993(A)(6); Okla. Sup. Ct. R. 1.60(g).

Appeal Bonds

Does the amount of the required bond place undue pressure on the defendant to settle rather than appeal?

No, courts have discretion to lower the appeal bond and there is a limit on the bond in tobacco lawsuit appeals.

The maximum appeal bond that may be required in any civil action under any legal theory is limited to $25 million, regardless of the amount of the judgment.

The appeal bond in any action or litigation involving a tobacco product manufacturer that is a party to the Master Settlement Agreement shall be in an amount not to exceed 100% of the judgment, exclusive of interest and costs, 10% of the net worth of the judgment debtor, or $25 million, whichever is less.

Okla. Stat. tit. 12, § 990.4(B)(1), (B)(5) (as amended by H.B. 1603, Reg. Sess. (Okla. 2009) (effective Nov. 1, 2009)).

 

Evidence 

Has the state adopted Daubert, which requires the judge  to act as a "gatekeeper" against unreliable expert testimony in civil actions?

Yes

The Oklahoma Supreme Court adopted Daubert and KumhoTire as appropriate standards for Oklahoma trial courts in deciding the admissibility of expert testimony in civil matters in Christian v. Gray, 65 P.3d 591 (Okla. 2003).  See also Okla. Stat. tit. 12, § 2702 (as amended by H.B. 1603, Reg. Sess. (Okla. 2009) (stating standards for expert opinion testimony)(effective Nov. 1, 2009).

State law requires courts to consider specified criteria in determining whether expert is qualified to testify on whether health care provider departed from accepted standards of health.  It also requires court to state on record any reason for admitting testimony if the court departs from the criteria.

 

 Private Lawsuits Under Consumer Protection Statutes

Must each individual plaintiff show that he or she relied on the allegedly unfair or deceptive practice at issue?

Plaintiff must show actual proximate causation

Okla. Stat. tit. 15, § 761.1(A).

What is the level of scienter (intent) required of a defendant?

Not addressed

Are class actions permitted?

Yes

Are statutory damages (an amount set by statute) provided for even if a plaintiff cannot show an actual economic injury?

No

A consumer may recover actual damages.

Okla. Stat. tit. 15, § 761.1(A),(B).

Does the plaintiff automatically receive treble (triple) damages regardless of the intent of the defendant? 

No

If act is unconscionable, a consumer may seek a civil penalty of up to $2,000 for each violation.

Okla. Stat. tit. 15, § 761.1(B).

Does every prevailing plaintiff receive attorneys' fees and costs?

No

A prevailing party may recover attorneys fees and costs of up to $10,000 if the court finds a claim or defense was asserted in bad faith, was not well grounded in fact, or was unwarranted by existing law or a good faith argument for the extension, modification, or reversal of existing law. 

Okla. Stat. tit. 15, § 761.1(A).

 

Is conduct authorized by or in compliance with a state or federal statute or regulation exempt from the act? 

Yes

“Nothing in this act shall apply to:  … Actions or transactions regulated under laws administered by the Corporation Commission or any other regulatory body or officer acting under statutory authority of this state or the United States, or to acts done by retailers or other persons acting in good faith on the basis of information or matter supplied by others and without knowledge of the deceptive character of such information or matter.”

Okla. Stat. tit. 15, § 754(2).

 

 Jury Service

Automatic exemptions and disqualifications based on occupation eliminated?

Some remain

Judges, sheriffs, attorneys, convicted felons, and legislators  during the session are disqualified from jury service.  Jailers or law enforcement officers are eligible to serve in noncriminal actions only.

Okla. Stat. tit. 38, § 28(C) (as amended by S.B. 74, Reg. Sess. (Okla. 2008)).

 

Are the grounds for obtaining an excuse from service closely defined?

Yes

Grounds include:

1. A mental or physical condition that causes him or her to be incapable of performing jury service.

2. Undue or extreme physical or financial hardship, which is limited to circumstances in which an individual would be required to abandon a person under his or her personal care or supervision due to the impossibility of obtaining an appropriate substitute caregiver, incur costs that would have a substantial adverse impact on the payment of the individual’s necessary daily living expenses, or suffer physical hardship that would result in illness or disease. Undue or extreme physical or financial hardship does not exist solely based on the fact that a prospective juror will be required to be absent from his or her place of employment. 

Okla. Stat. tit. 38, § 28(B).

 

May jurors automatically postpone and reschedule service?

Yes

Jurors have the right to one automatic postponement with a simple and convenient method of rescheduling jury service to a more convenient time within 6 months.

Okla. Stat. tit. 38, § 28.1.

 

Is a juror's employment and leave time adequately protected during service?

Yes

A juror who notifies his or her employer of such summons within a reasonable period of time after receipt of a summons and prior to his or her appearance for jury duty may not be terminated, removed or otherwise subject to any adverse employment action as a result of such service. An employee may not be required or requested to use annual, vacation, or sick leave for time spent responding to a summons for jury duty, time spent participating in the jury selection process, or time spent actually serving on a jury.

Okla. Stat. tit. 38, §§  34, 35.

 

Is there a limit on the frequency of jury service?

Yes

Citizens are required to serve no more than once every two years.

Okla. Stat. tit. 38, § 28(B).

 

Is the length of service limited to no more than one day or one trial?

Yes*

Okla. Stat. tit. 38, §§ 21, 23.1.

Juror per diem

$20 plus mileage

Okla. Stat. tit. 28, § 86(A).

Is additional compensation available on lengthy trials?

Yes

Citizens who not fully compensated by their employers would be eligible for compensation of up to $200 per day after the 10th day of service.

Okla. Stat. tit. 28, § 86(D).

 

Is the potential penalty for nonappearance sufficient to encourage participation?

Yes

Individuals who fail to respond for jury service are subject to a fine up to $500 or community service.

Okla. Stat. tit. 21, § 567B.

 

Problem Jurisdictions

 

 

The American Tort Reform Association includes Oklahoma on its "watch list" of areas that show signs of developing into Judicial Hellholes.

 

 

 

This Analysis provides a brief overview of the law.  It is not a substitute for consulting with an attorney and is not intended to provide legal advice.  If you know of developments that are more recent than those reflected above, please send an email to LegalReform@lawexec.com Original material © 2009 Center for America.