Under Okla.Stat. tit. 76, § 9 (1976), a party may use necessary force to protest himself, any relative or guest. Furthermore, a party found to be using necessary force will not be liable for the resulting injuries. Foster v. Emery, 495 P.2d 390, 391 (Okla. 1972) (defendant not liable for night shooting death of a 15-year-old male trespasser in a residential area of Oklahoma City). Therefore, while neither party disputes that Dr. Ontko violated the Oklahoma City ordinance when he fired his shotgun, Dr. Ontko has a valid right to claim self-defense and defense of others.
Silk v. Phillips Petroleum Co., 1988 OK 93, ¶ 13, 760 P.2d 174, 177. Although there is no clear law on the issues of gross mistake or misconduct as jury issues, it is clear that because these questions are founded on concepts of heightened negligence that they too must be decided by a jury. See Foster v. Emery, 1972 OK 38, ¶ 17, 495 P.2d 390, 393 ("As a practical matter, it may be said that it is rarely proper for the court, as opposed to the jury, to decide that a given course of conduct [d]oes amount to wantonness or wanton conduct."). Whether or not there was conduct by which the umpire's award should be set aside is a question for the jury.
[C]onduct [that] exhibits a conscious indifference to consequences in circumstances where probability of harm to another within the circumference of the conduct is reasonably apparent, although harm to another is not intended, but only that the act is so unreasonable and dangerous that the actor either knows or should know that there is an eminent likelihood of harm.Foster v. Emery, 495 P.2d 390, 392–93 (Okla.1972). Having carefully reviewed plaintiffs' Complaint, and presuming all of plaintiffs' factual allegations are true and construing them in the light most favorable to plaintiffs, the Court finds that plaintiffs have not set forth sufficient allegations to show that Fitz and Whittington acted with willful and wanton negligence.
Dayton Hudson Corp. v. American Mutual Liability Insur. Co., 621 P.2d 1155, 1161, n. 24 (Okla. 1980) (quoting Wooten v. Shaw, 205 Okla. 283, 237 P.2d 442, 444 (1951)). "Willful and wanton misconduct" goes beyond gross negligence in that the actor knows that the conduct will probably result in injury. Foster v. Emery, 495 P.2d 390, 392 (Okla. 1972). Southwestern Bell alleges that its admitted breach of contract in failing to print the Debtors' ad in the 1988 Yellow Pages was not the result of gross negligence or willful and wanton conduct. It argues that the computer "did it" and that its conduct amounts, at most, to mere negligence.
Moran v. City of Del City, supra note 50, at ¶ 11, 77 P.3d at 592 (quoting Prosser and Keeton on the Law of Torts, 182 (5th ed.1984) (discussing negligence of an actor)). Foster v. Emery, 1972 OK 38, 495 P.2d 390, 392 (equating mere carelessness and inadvertence with negligence). Altman v. Aronson, 231 Mass. 588, 591-592, 121 N.E. 505, 506 (1919) (defining negligence and gross negligence).