Kirlin v. Halverson

Kim Halverson (defendant) worked for PKJ, Inc. (defendant), which was owned by Kelly Cawthorne (defendant) and other members of his family. PKJ had provided heating, ventilation, and air conditioning (HVAC) services to a local retail center, Empire Mall, for around 15 years when PKJ lost its contract to another company, Carrier Commercial Services (Carrier). Despite this loss, one day, Cawthorne was on the roof of the mall continuing to do ductwork when he saw Carrier’s employee, James Scott Kirlin (plaintiff), servicing the HVAC unit. Cawthorne was angry and rude to Kirlin, even smacking Kirlin’s hand away when he tried to shake hands with Cawthorne. The mall’s operations manager had to go to the roof and defuse the matter, telling Cawthorne to allow Kirlin, who would be in town working a few more days, to do his work. However, the next day, Cawthorne assigned Halverson to continue maintaining the ducts at Empire Mall. Kirlin had permission to use air conditioning filters that PKJ had in a storage area on the roof. When Halverson saw Kirlin removing filters from the storage area, he confronted Kirlin, telling him that he was not going to use PKJ’s filters. Halverson physically assaulted Kirlin, also accusing him of having been the guy who had waved or gestured toward him the day prior in a separate incident. When Kirlin tried to call the police, Halverson knocked the phone from Kirlin’s hand and beat and kicked him until he became unconscious. Halverson was arrested on various charges, and Kirlin and his wife (plaintiff) sued PKJ, Cawthorne, and Halverson on several claims, including vicarious liability under a theory of respondeat superior and several types of negligence. Cawthorne and PKJ moved for summary judgment, which a circuit court granted. The Kirlins appealed. The South Dakota Supreme Court reversed the circuit court’s finding on the duty element of Kirlin’s negligence claims and considered his vicarious-liability claim.