## Facts

- Kimberlynn Dawn Cameron alleged she was injured in a September 23, 2014 automobile accident involving Jason Adam Osler.
- Osler was driving a vehicle owned by his employer, Waste Connections of South Dakota, Inc. (Waste Connections).
- On August 29, 2017, Cameron filed a summons and complaint naming Osler as a defendant and delivered the papers to the sheriff for service, but Osler was not located and was not served.
- Before the limitations period expired, Cameron filed an amended summons and complaint adding Waste Connections as a defendant and asserting that Waste Connections was vicariously liable for Osler’s alleged negligence under respondeat superior.
- Cameron timely served Waste Connections with the amended pleading.
- Cameron did not serve Osler within the time required, and the claim against Osler was dismissed with prejudice based on the service/limitations problem.
- Waste Connections moved to dismiss, arguing that because Osler had been dismissed, Cameron no longer had a viable basis to impose vicarious liability on Waste Connections.
- The circuit court granted Waste Connections’ motion and dismissed the claim against the employer.

## Issues

1. When an employee-driver is dismissed with prejudice due to the plaintiff’s failure to timely serve him, does that procedural dismissal bar a timely respondeat superior claim against the employer arising from the same alleged negligence?

## Decision

- The South Dakota Supreme Court reversed the circuit court’s dismissal of the claim against Waste Connections.
- The court held Cameron properly initiated a timely action against Waste Connections before the statute of limitations expired.
- The court held Osler’s dismissal for untimely service was a procedural disposition and did not amount to an adjudication that Osler was not negligent.
- The court remanded for further proceedings on Cameron’s vicarious liability claim against Waste Connections.

## Legal Principles

- Respondeat superior permits an employer to be liable for an employee’s tort committed within the scope of employment.
- For vicarious liability, the plaintiff must prove the employee’s underlying wrongful conduct and that it occurred within the scope of employment; the claim does not depend on obtaining a judgment against the employee in the same action.
- A procedural dismissal of the employee based on a personal defense (such as untimely service tied to limitations) does not decide the employee’s culpability and does not automatically defeat a vicarious liability claim against the employer.
- A dismissal “with prejudice” can function as a case-ending mechanism as to that defendant, yet still not constitute a merits determination that the employee was not negligent.
- To preclude respondeat superior liability on the ground that the employee was cleared of fault, there must be a merits-based resolution (or an affirmative determination) that the employee did not commit the alleged tort.

## Conclusion

The South Dakota Supreme Court held that Cameron’s timely claim against Waste Connections for respondeat superior liability could proceed even though Osler was dismissed with prejudice for untimely service, because that dismissal was procedural and did not determine whether Osler was negligent.


Cameron v. Osler, 930 N.W.2d 661 (2019)