YOUR FACT SITUATION MAY BE IMMUNE FROM LIABILITY PURSUANT TO 51 O.S. 155(14) OF THE TORT CLAIMS ACT WHICH PROVIDES:
"THE STATE OR A POLITICAL SUBDIVISION SHALL NOT BE LIABLE IF A LOSS OR CLAIM RESULTS FROM:
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14. ANY LOSS TO ANY PERSON COVERED BY ANY WORKERS' COMPENSATION ACT OR ANY EMPLOYER'S LIABILITY ACT(.)"
WHETHER THE VOLUNTEER IS COVERED BY AN EMPLOYER'S LIABILITY ACT DEPENDS UPON THE APPLICABLE ACT'S WORDING AND ITS DEFINITION OF " EMPLOYEE " AND IS A QUESTION OF FACT. TO DETERMINE WHETHER A VOLUNTEER IS COVERED BY WORKERS' COMPENSATION, IT IS NECESSARY TO EXAMINE THE WORKERS' COMPENSATION ACT. THE DEFINITION OF "EMPLOYEE" UNDER THE WORKERS' COMPENSATION ACT, 85 O.S. 3(4) (1992) STATES, IN PERTINENT PART:
(TEXT OF STATUTE)
THIS DEFINITION SPEAKS SPECIFICALLY ONLY TO THE VOLUNTARY WORKER WHO VOLUNTEERS AS A FIRE FIGHTER, PEACE OFFICER OR CIVIL DEFENSE WORKER. THIS DEFINITION DOES NOT APPEAR TO INCLUDE THE VOLUNTEER PRESENTED BY YOUR FACT SITUATION, YET THE WORDING DOES NOT CLEARLY EXCLUDE OTHER VOLUNTEERS, EITHER. THEREFORE, WHETHER THE VOLUNTEER IN YOUR FACT SITUATION IS CONSIDERED AN EMPLOYEE ACCORDING TO THIS DEFINITION IS A QUESTION OF FACT.
THUS, WE CAN CONCLUDE THAT A CITY CAN BE LIABLE TO A VOLUNTEER WORKER, BUT THAT GENERAL PRINCIPLE IS SUBJECT TO CERTAIN EXCEPTIONS WHICH REQUIRE FACTUAL DETERMINATIONS TO BE MADE IN EACH INDIVIDUAL CASE.
WHILE NOT DIRECTLY RAISED BY YOUR QUESTION, ANOTHER IMPORTANT ISSUE TO CONSIDER IS WHETHER A MUNICIPALITY CAN BE HELD LIABLE FOR THE TORTS COMMITTED BY A MUNICIPALITY VOLUNTEER WHILE ACTING WITHIN THE SCOPE OF HIS OR HER ASSIGNED DUTIES. THE ACT STATES THAT A MUNICIPALITY SHALL BE LIABLE FOR "THE TORTS OF ITS EMPLOYEES ACTING WITHIN THE SCOPE OF THEIR EMPLOYMENT(.)" 51 O.S. 153. THUS, IT MUST HE DETERMINED WHETHER A VOLUNTEER IS AN EMPLOYEE.
THE DEFINITION OF "EMPLOYEE" IS SET FORTH IN 51 O.S. 152(5) OF THE ACT AS FOLLOWS:
"ANY PERSON WHO IS AUTHORIZED TO ACT IN BEHALF OF A POLITICAL SUBDIVISION OR THE STATE WHETHER THAT PERSON IS ACTING ON A PERMANENT OR TEMPORARY BASIS, WITH OR WITHOUT BEING COMPENSATED OR ON A FULL-TIME OR PART-TIME BASIS."
THIS IS A BROAD DEFINITION WHICH CAN BE INTERPRETED TO INCLUDE VOLUNTEERS. TO DETERMINE WHETHER A VOLUNTEER FITS INTO THIS DEFINITION, A VARIETY OF FACTORS MUST BE CONSIDERED, SUCH AS 1) WHETHER THE VOLUNTEER WAS AUTHORIZED TO ACT IN BEHALF OF THE POLITICAL SUBDIVISION AND 2) WHETHER THE VOLUNTEER WAS ACTING WITHIN THE SCOPE OF EMPLOYMENT. THUS, WHETHER A VOLUNTEER IS CONSIDERED AN EMPLOYEE PURSUANT TO THE ACT'S DEFINITION IN 51 O.S. 152(5) IS A QUESTION OF FACT WHICH CANNOT BE ANSWERED BY THIS OPINION.
ON THE OTHER HAND, I WOULD BE REMISS IF I DID NOT NOTE THAT THE STATE OF OKLAHOMA AND ITS POLITICAL SUBDIVISIONS ARE CLEARLY IMMUNE FROM LIABILITY FOR INJURY TO A PERSON WHO IS ASSIGNED TO COMMUNITY SERVICE PURSUANT TO A SENTENCE, MUNICIPAL COURT ORDER, AS A CONDITION OF PAROLE OR ANY OTHER CIRCUMSTANCE LISTED IN 57 O.S. 227(A). SECTION