## Facts

- PKJ, Inc. (Empire HVAC) had long serviced the Empire Mall but was replaced by Carrier Commercial Services under a national maintenance contract.
- James Kirlin, a Carrier employee, worked on the mall’s rooftop HVAC units.
- The day before the assault, PKJ manager and co-owner Kelly Cawthorne confronted Kirlin on the roof, angrily yelled obscenities, and was calmed by the mall’s operations manager, who told Cawthorne to allow Kirlin to finish his work.
- Despite knowing Carrier held the contract, Cawthorne assigned PKJ employee Kim Halverson to continue rooftop duct work the next day.
- Kirlin had permission to use air filters stored in a rooftop storage area to complete Carrier’s work.
- Halverson confronted Kirlin over the filters, accused him of prior disrespectful gestures, knocked Kirlin’s phone away as he tried to call police, and beat and kicked him until he lost consciousness.
- Halverson was arrested and criminally charged; Kirlin claimed personal injuries and Kristin Kirlin claimed loss of consortium.
- The Kirlins sued Halverson, Cawthorne, and PKJ, alleging negligence, civil conspiracy, and respondeat superior against Cawthorne/PKJ.
- The circuit court granted summary judgment for Cawthorne and PKJ on all claims; the Kirlins appealed.

## Issues

1. Whether Cawthorne and PKJ owed Kirlin a duty of reasonable care supporting the Kirlins’ negligence theories, making summary judgment improper.
2. Whether PKJ could be held vicariously liable under respondeat superior for Halverson’s intentional assault as conduct within the scope of employment.

## Decision

- The Supreme Court affirmed in part, reversed in part, and remanded.
- It reversed summary judgment on the negligence duty issue, holding the record could support a legal duty and that the duty analysis was resolved too narrowly on summary judgment.
- It affirmed summary judgment in substantial part on respondeat superior, holding Halverson’s violent assault lacked a sufficient work-related nexus to fall within the scope of employment.

## Legal Principles

- Duty is a question of law and may arise from the relationship between the parties and policy considerations, including foreseeability.
- Employer knowledge of prior hostility and workplace decisions that place parties into renewed contact can make harm foreseeable and support a duty of reasonable care.
- Respondeat superior requires that the employee’s act be of the kind employed to perform, occur within authorized time/space limits, and be motivated at least in part by a purpose to serve the employer.
- An employer is not vicariously liable for an employee’s intentional, violent tort merely because employment provided the occasion, the tort occurred at work, or it followed a workplace dispute; there must be a close connection between the job’s duties and the tortious conduct.
- Personal retaliation and extreme criminal violence generally fall outside the scope of employment absent a sufficient business-serving purpose.

## Conclusion

The court permitted the Kirlins to proceed on negligence theories because the circumstances could support a duty based on foreseeability and the defendants’ role in creating or failing to address a known risk of confrontation, but it limited respondeat superior by holding the employee’s brutal assault was primarily personal and not sufficiently connected to job duties to impose vicarious liability.


Kirlin v. Halverson, 758 N.W.2d 436 (S.D. 2008)