Kirlin v. Halverson

• Decision Date: 05 November 2008
• Docket Number: No. 24710.,24710.
• Citation: 2008 SD 107,758 N.W.2d 436
• Parties: James Scott KIRLIN and Kristin Kirlin, Plaintiffs and Appellants, v. Kim HALVERSON, Defendant, Kelly Cawthorne, and PKJ, Inc., d/b/a Empire HVAC, Defendants and Appellees.
• Court: South Dakota Supreme Court

758 N.W.2d 436

2008 SD 107

James Scott KIRLIN and Kristin Kirlin, Plaintiffs and Appellants, v. Kim HALVERSON, Defendant Kelly Cawthorne, and PKJ, Inc., d/b/a Empire HVAC, Defendants and Appellees.

No. 24710.

Supreme Court of South Dakota.

Argued April 22, 2008.

Decided November 5, 2008.

N. Dean Nasser, Jr., Nasser Law Offices, P.C., Sioux Falls, South Dakota, Attorneys for plaintiffs and appellants.

Michael L. Luce, Luce Law Office Sioux Falls, South Dakota, Attorney for defendants and appellees Kelly Cawthorne and PKJ, Inc., d/b/a Empire HVAC.

Daniel K. Brendtro, Sioux Falls, South Dakota Attorney for defendants and appellees Kelly Cawthorne and PKJ, Inc. d/b/a Empire HVAC.

GILBERTSON, Chief Justice.

¶ 1. On August 31, 2005, plaintiff James Scott Kirlin (Kirlin) commenced a lawsuit in the South Dakota Second Judicial Circuit for personal injuries and other losses against defendants Kim Halverson (Halverson), Kelly Cawthorne (Cawthorne) and PKJ, Inc. d/b/a Empire HVAC (PKJ) resulting from an assault that Halverson perpetrated upon Kirlin. Kirlin's wife, plaintiff Kristin Kirlin, concurrently commenced an action against the defendants for loss of consortium. The Kirlins' claims against Cawthorne and PKJ, Inc. alleged liability based on alternative theories of respondeat superior, civil conspiracy, and negligence. Cawthorne and PKJ moved for summary judgment. The circuit court granted their motion and we affirm in part, reverse in part and remand.

FACTS AND PROCEDURE

¶ 2. Cawthorne worked in the heating, ventilation and air conditioning (HVAC) business in Sioux Falls, South Dakota. Cawthorne, his wife, Pamela Cawthorne, and father, John Cawthorne were equal shareholders in PKJ and operated an HVAC business through that entity. Cawthorne managed the operations of the business. By the spring of 2005, PKJ had been in business for about 15 years and serviced approximately 580 accounts in Sioux Falls. One of those accounts was the Empire Mall where PKJ was the principal HVAC service provider.

¶ 3. By the spring of 2005, Cawthorne learned that the Macerich Corporation, owner of the Empire Mall, was reevaluating its HVAC servicing arrangements. Macerich entered into a nationwide contract with Carrier Commercial Services (Carrier) for HVAC maintenance at its retail malls, including the Empire Mall. There is some disagreement between the parties as to the precise moment at which Cawthorne learned that PKJ had lost its contract with Macerich. However, it is clear that Cawthorne and PKJ were aware Carrier had secured the contract to do work previously performed by PKJ at the Empire Mall by the time of the events relevant to this lawsuit.

¶ 4. On June 15, 2005, Cawthorne was atop the Empire Mall performing duct maintenance when he spotted Kirlin, wearing a Carrier uniform, working on an HVAC unit. Cawthorne was admittedly incensed upon seeing a Carrier employee performing work that for the previous 15 years had been performed by PKJ. He "just felt compelled to go over there and ask him who he was and what was he doing." Kirlin testified during his deposition that as soon as he told Cawthorne that he worked for Carrier and that he was performing maintenance on the HVAC units, Cawthorne "immediately started yelling obscenities at me...." Kirlin stated that he tried to settle Cawthorne down and that he extended his hand to Cawthorne in an attempt to shake hands. At this point, Cawthorne batted Kirlin's hand away and continued to berate him.

¶ 5. Eventually, Kirlin called the Empire Mall operation's manager, Tim Kelly (Kelly), to come up and "defuse the situation...." Kelly told Cawthorne that he was to stay away from Kirlin and leave him to his work. Cawthorne was made aware that Kirlin, who came from Omaha, Nebraska to service the HVAC units, would be at the Empire Mall for several more days performing maintenance.

¶ 6. On the following day, June 16, 2005, Cawthorne assigned Halverson to the Empire Mall to continue the duct maintenance. Halverson had been employed by PKJ for about 10 years. He was also married to a cousin of Pamela Cawthorne. Kirlin was again on the rooftop and had crawled inside the "penthouse," a storage shack atop the mall, to get some air conditioning filters. PKJ kept "thousands of dollars worth of motors, refrigerants, and other parts" as well as filters in the penthouse. Kirlin had been informed by Kelly that he was free to use the filters stored inside the penthouse.

¶ 7. As Kirlin was crawling out of the penthouse with an arm full of filters, he was met by Halverson. Halverson testified at his deposition that he told Kirlin, "if you work for Carrier, you can get your own filters" and that "[Kirlin] wasn't going to use our filters[.]" Kirlin, stated he "decided just not to cause any waves and [to] set the filters down." Kirlin then "asked Mr. Halverson why he was making it so tough on us up here." At that point, "[Halverson] grabbed ahold [sic] of me ... and started slamming me up against the building[.]" According to Kirlin, Halverson said to him, "you're that little faggot that waved at me, aren't you? You think you're fuckin' smart, don't you?" Kirlin denied Halverson's allegation and asked him who he was. Seeing the name "Kim" on Halverson's uniform, he then asked if that was Halverson's name to which he replied, "yeah, my name's Kim, have you got a problem with that?" Halverson continued to slam Kirlin against the penthouse and insinuate that he had gestured to him the day before. Kirlin told Halverson that he was going to call the police. Halverson replied, "go ahead and call the cops you little fucker." However, as Kirlin grabbed his phone to call the police, Halverson knocked it from his hand and shoved him. Kirlin then decided to "get the heck out of there." As Kirlin was back-stepping, he "struck out" at Halverson hitting him on the chin "once, maybe twice" with a closed fist. Halverson then started chasing Kirlin around the rooftop eventually catching him, then beating and kicking him into unconsciousness. When Kirlin awoke, police and fire department EMTs were at his side.

¶ 8. Halverson was arrested and charged with aggravated assault, simple assault and interference with emergency communications. He was acquitted on the aggravated assault charge, but was convicted of simple assault and the interference charge. He was sentenced to 365 days and 30 days in jail for the convictions, to be served concurrently. While the criminal prosecutions were proceeding against Halverson, the Kirlins commenced their civil actions against Halverson, Cawthorne and PKJ. Cawthorne and PKJ filed a motion for summary judgment in regard to the theories of respondeat superior and civil conspiracy, as well as the various forms of negligence that the Kirlins set forth as a basis for liability. The motion was heard on September 4, 2007. On October 12, 2007, the circuit court entered its memorandum opinion granting summary judgment for Cawthorne and PKJ.

¶ 9. The Kirlins raise four issues on appeal:

1. Whether the record establishes a basis for vicarious liability of Cawthorne and PKJ on a theory of respondeat superior for injuries inflicted upon Kirlins by an on-duty employee of PKJ.

2. Whether or not Halverson departed from the scope of his employment, does a genuine issue of material fact exist on any theory brought against Cawthorne and PKJ based on a tort duty arising under Restatement (Second) of Torts, § 317, or any other basis of negligence out of which a duty can arise.

3. Whether the record establishes a basis for the liability of Cawthorne and PKJ on a theory of civil conspiracy.

4. Whether the record establishes clear and convincing evidence that there is a reasonable basis to believe willful, wanton, or malicious conduct by Cawthorne and PKJ, supporting punitive damages.

STANDARD OF REVIEW

[¶ 10.] Our standard of review of a circuit court's grant of summary judgment is well settled:

[W]e must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper.

Wojewski v. Rapid City Reg'l Hosp., Inc., 2007 SD 33, ¶ 12, 730 N.W.2d 626, 631 (quoting Read v. McKennan Hosp., 2000

SD 66, ¶ 8, 610 N.W.2d 782, 784) (additional citations omitted). "The existence of a duty in a negligence action is a question of law subject to de novo review by this Court." Hohm v. City of Rapid City, 2008 SD 65, ¶ 3, 753 N.W.2d 895, 898 (citing State Auto Ins. Companies v. B.N.C., 2005 SD 89, ¶ 20, 702 N.W.2d 379, 386).

ANALYSIS AND DECISION¹

[¶ 11.] 1. Whether the record establishes a basis for vicarious liability of Cawthorne and PKJ on a theory of respondeat superior for injuries inflicted upon Kirlin by an on-duty employee of PKJ.

[¶ 12.] The ancient doctrine of respondeat superior is well established as "holding an employer or principal liable for the employee's or agent's wrongful acts committed within the scope of the employment or agency." Black's Law Dictionary, (8th ed 2004). In giving meaning to the phrase "within the scope of employment," we have stated:

"[W]ithin the scope of employment" has been called vague but flexible, referring to "those acts which are so closely connected with what the servant is employed to do, and so fairly and reasonably incidental to it, that they may be regarded as methods, even though quite improper ones, of carrying out the objectives of the employment."

Deuchar v....