#28751-r-LSW 

2019 S.D. 34 

IN THE SUPREME COURT 

OF THE 

STATE OF SOUTH DAKOTA 

* * * * 

KIMBERLYNN DAWN CAMERON, Plaintiff and Appellant, 

v. 

JASON ADAM OSLER Defendant, 

 and 

WASTE CONNECTIONS OF 

SOUTH DAKOTA, INC., Defendant and Appellee. 

 

* * * * 

APPEAL FROM THE CIRCUIT COURT OF 

THE SEVENTH JUDICIAL CIRCUIT 

PENNINGTON COUNTY, SOUTH DAKOTA 

* * * * 

THE HONORABLE CRAIG A. PFEIFLE 

Judge 

* * * * 

MICHAEL W. STRAIN of 

Strain Morman Law Firm 

Sturgis, South Dakota Attorneys for plaintiff and 

 appellant. 

CASSIDY M. STALLEY of 

Lynn, Jackson, Shultz 

 & Lebrun, P.C. 

Rapid City, South Dakota Attorneys for defendant and 

 appellee. 

* * * * 

 

 CONSIDERED ON BRIEFS ON 

 APRIL 29, 2019 

 OPINION FILED 06/19/19 
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WILBUR, Retired Justice 

[¶1.] After being injured in a car accident, Kimberlynn Cameron brought 

suit against Jason Osler. She subsequently filed an amended summons and 

complaint, adding a claim for vicarious liability and naming Osler’s employer, 

Waste Connections of South Dakota, Inc., as a defendant. However, Cameron failed 

to timely serve Osler, and he was dismissed from the suit, leaving only Waste 

Connections as a defendant. Waste Connections filed a motion to dismiss, asserting 

Cameron’s failure to timely serve Osler precluded suit against Waste Connections. 

The circuit court agreed and granted Waste Connections’ motion to dismiss. 

Cameron appeals. We reverse. 

Background 

[¶2.] Osler and Cameron were in an automobile accident on September 23, 

2014. When the accident occurred, Osler was operating a vehicle owned by his 

employer, Waste Connections. Cameron claimed she was injured as a result of the 

accident and that Osler was at fault. On August 29, 2017, she filed a summons and 

complaint against only Osler. She delivered the summons and complaint to the 

local sheriff’s office to be served upon Osler. However, Osler was never served with 

the summons and complaint because he could not be located. 

[¶3.] Cameron obtained new counsel and, shortly before the statute of 

limitations expired on her claim, she filed an amended summons and complaint. 

She named Waste Connections as a defendant and added a claim of vicarious 

liability against Waste Connections based on Osler’s negligence. Cameron timely 
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served Waste Connections with the amended summons and complaint, but she did 

not timely serve Osler. The suit against Osler was ultimately dismissed. 

[¶4.] Waste Connections, in its answer to Cameron’s suit, asserted the 

statute of limitations as a defense. It also filed a motion to dismiss, arguing that it 

could not be held vicariously liable for Osler’s conduct because Osler had been 

adjudicated not negligent based on the suit being dismissed against him with 

prejudice. In response, Cameron argued that dismissal of Osler did not affect her 

suit against Waste Connections because Osler was not a necessary party. In her 

view, she needed only to prove Osler acted negligently and did so within the scope of 

his employment, not that Osler could be held personally liable. 

[¶5.] After a hearing and after considering the parties’ briefs, the circuit 

court granted Waste Connections’ motion to dismiss. Cameron appeals, asserting 

the circuit court erred. We review de novo whether the circuit court erred in 

granting the motion to dismiss. Wojewski v. Rapid City Reg’l Hosp. Inc., 2007 S.D. 

33, ¶ 11, 730 N.W.2d 626, 631. 

Analysis 

[¶6.] Waste Connections’ liability, if any, arises from the doctrine of 

respondeat superior. “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.’” Kirlin v. 

Halverson, 2008 S.D. 107, ¶ 12, 758 N.W.2d 436, 444 (quoting Black’s Law 

Dictionary (8th ed. 2004)). The employer’s liability is merely a derivative of the 

employee’s. See Estate of Williams v. Vandeberg, 2000 S.D. 155, ¶ 12, 620 
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N.W.2d187, 190. Therefore, we have held that a plaintiff cannot proceed against an 

employer when the negligent employee has been released via a settlement with the 

plaintiff. Id. This is because “the release of the culpable party extinguishes any 

liability of the non-guilty principal.” Id. ¶ 14 (citing Theophelis v. Lansing Gen. 

Hosp., 424 N.W.2d 478, 480 (Mich. 1988)). 

[¶7.] Here, however, there has been no settlement and release of Osler. 

Rather, Cameron’s suit against Osler has been dismissed because the statute of 

limitations expired on her claim against Osler. We have not before examined 

whether a plaintiff can proceed against an employer when the plaintiff’s suit 

against the employee has been dismissed as time barred. According to Osler, 

multiple courts have held that such suit is permissible because the employee is not 

a necessary party to a vicarious liability claim and the employee’s negligence can be 

determined in the employee’s absence. In response, Waste Connections identifies 

contrary authority and contends that suit against an employer is precluded because 

the employee has been adjudicated not negligent via a dismissal with prejudice. 

[¶8.] In Krekelberg v. City of Minneapolis, No. CIV. 13-3562, 2018 WL 

3621031 (D. Minn. July 30, 2018), a federal district court examined whether a 

plaintiff’s liability claim against the city could proceed even though suit against the 

negligent employees had been dismissed. The court acknowledged that a dismissal 

with prejudice because of an expired statute of limitations acts as an adjudication 

on the merits. Id. at *3. The court, however, found “a meaningful distinction 

between a dismissal that actually confronts the merits of the agent’s liability and a 

dismissal for some other purely procedural or tactical reason.” Id. The court also 
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considered that a plaintiff need not bring suit against the employee before bringing 

suit against the employer based on respondeat superior. Id.; accord Leow v. A & B 

Freight Line, Inc., 676 N.E.2d 1284, 1288 (Ill. 1997). Therefore, the district court 

“rejected the notion that an ‘on-the-merits’ dismissal of an agent plainly disposed of 

the corresponding vicarious liability claim against the principal.” Krekelberg, 2018 

WL 3621031, at *5. 

[¶9.] The Iowa Supreme Court reached the same result in Brosamle v. 

Mapco Gas Products, Inc., 427 N.W.2d 473, 475–76 (Iowa 1988). The Iowa court, 

however, focused on the underlying purpose of the doctrine of respondeat superior. 

In particular, the court observed that the doctrine is intended to hold the master 

liable for the servant’s negligence, and “[t]he right of an injured party to sue and 

hold the employer liable is, in effect, a direct or primary right.” Id. The court 

recognized that a dismissal of an employee with prejudice constitutes an 

adjudication on the merits, and “the master has no liability unless the servant is 

liable.” Id. However, because an employee’s negligence is not actually adjudicated 

and because an employee is not a necessary party, the court held that a dismissal 

would not summarily terminate litigation against the employer. Id. at 476; Cohen 

v. Alliant Enters., Inc., 60 S.W.3d 536, 538–39 (Ky. 2001). 

[¶10.] Similarly relying on principles attendant to the doctrine of respondeat 

superior, the Delaware Supreme Court emphasized that “the employer’s liability 

hinges upon the employee’s culpability—as distinguished from the employee’s 

liability.” Verrastro v. Bayhosptialists, LLC, No. 233, CIV. 2019 WL 1510458, *3 

(Del. April 8, 2019). The court further reasoned that treating a dismissal as an 
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adjudication on the merits is “not intended to encompass procedural dismissals that 

do not adjudicate the wrongfulness of the agent’s conduct.” Id. at *5. Ultimately, 

the court held that “in a negligence action against a principal based on the doctrine 

of respondeat superior, the dismissal of the agent on a defense personal to the agent 

does not automatically eliminate the principal’s vicarious liability.” Id. at *6. The 

court also overruled a previous case to the extent that it could be read “to eradicate 

otherwise timely claims against a principal because claims based on the same facts 

would be time-barred if made against the principal’s agent[.]” Id. (overruling Greco 

v. Univ. of Delaware, 619 A.2d 900 (Del. 1993)). 

[¶11.] Focusing particularly on the lack of an actual adjudication on the 

merits, the Virginia Supreme Court held that a suit against the employer may 

proceed even though the suit against the employee is time barred. Hughes v. Doe, 

639 S.E.2d 302, 304 (Va. 2007). The court observed that “the crux of respondeat 

superior liability is a finding that the employee was negligent.” Id. In the court’s 

view, therefore, there must be an “affirmative finding that [the employee] was not 

negligent” to preclude suit, rather than a dismissal that merely terminated the 

plaintiff’s ability to hold the employee personally liable. Id.; accord Cohen, 60 

S.W.3d at 539. 

[¶12.] In a similar vein, a Maryland appellate court determined “context 

matters.” Women First OB/GYN Assoc. LLC v. Harris, 161 A.3d 28, 40 (Md. Ct. 

App. 2017). The court examined the conflicting views of other courts and found 

“that an ‘adjudication on the merits’ may not have the same meaning procedurally 

as it does substantively.” Id. at 39. Rather, “[t]he dismissal with prejudice is 
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simply the procedural mechanism to permanently remove the agent as a defendant 

in the case when it was not necessary to include him as a defendant in the case to 

begin with.” Id. at 46. The court also considered the lack of risk of double recovery, 

namely that the plaintiff received nothing of value from the dismissed employee. 

Ultimately, the court held that suit would not be barred against the employer 

unless dismissal of the employee is “given in exchange for consideration and the 

merits of the tort claim against the agent [has] actually been adjudicated before the 

dismissal[.]” Id. at 45. 

[¶13.] In contrast to the above authorities, other courts have held that an 

employer cannot be held vicariously liable unless a viable cause of action exists 

against the employee. In Stephens v. Petrino, 86 S.W.3d 836, 843 (Ark. 2002), the 

Supreme Court of Arkansas determined that any liability against an employer is 

eliminated when an employee has been released or dismissed and the employer has 

been sued solely on the theory of vicarious liability. A previous Arkansas case 

explained the basis for that conclusion, namely that suit against the employer 

cannot be had because a dismissal of the suit against the employee with prejudice 

constitutes an adjudication on the merits. Hartford Ins. Co. v. Mullinax, 984 

S.W.2d 812, 816 (Ark. 1999). 

[¶14.] Michigan likewise precludes a suit against the employer when the suit 

against the employee has been dismissed with prejudice. Al-Shimmari v. Detroit 

Med. Ctr., 731 N.W.2d 29, 37 (Mich. 2007). Although initially recognizing that 

“[n]othing in the nature of vicarious liability . . . requires that a judgment be 

rendered against the negligent agent[,]” see id. at 36, the Supreme Court of 
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Michigan ultimately concluded that “the dismissal of the claims against [the 

employee] prevents plaintiff from arguing the merits of the negligence claim against 

[the employee]” because the dismissal acts as an adjudication on the merits. Id. at 

37. If the employee is considered not negligent, then the “[p]laintiff consequently is 

unable to show that [the employer is] vicariously liable for the acts of [the 

employee].” Id.; accord Law v. Verede Valley Med. Ctr., 170 P.3d 701, 705 (Ariz. 

Dist. Ct. 2007) (holding there is no fault to impute to the employer when the suit 

against the employee has been dismissed with prejudice). 

[¶15.] New York’s highest court also requires a valid cause of action against 

the employee to proceed against the employer based on respondeat superior.

Karaduman v. Newsday, Inc., 416 N.E.2d 557 (N.Y. 1980). In Karaduman, the 

court held that “it is manifest that there can be no vicarious liability on the part of 

the employer if the employee himself is not liable[.]” Id. Thus, if the employee’s 

liability has been “effectively extinguished” when the statute of limitations expired, 

“any vicarious liability that [the employer] might have had in consequence of its 

employees’ alleged misconduct must similarly be deemed extinguished.” Id. at 546. 

See also Buettner v. Cellular One, Inc., 700 So. 2d 48, 48 (Fla. Dist. Ct. App. 1997) 

(The court held, without elaboration, that a dismissal of the suit against an 

employee on an expired statute of limitations “exonerated” the employee; therefore, 

the plaintiffs could not proceed against the employer.). 

[¶16.] Having considered the differing views, we find more reasoned the 

approach that considers the context of the dismissal before precluding suit against 

the employer for vicarious liability. Respondeat superior “is a legal fiction designed 
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to bypass impecunious individual tortfeasors for the deep pocket of a vicarious 

tortfeasor.” Bass v. Happy Rest, Inc., 507 N.W.2d 317, 320 (S.D. 1993). The 

employer’s vicarious liability “is a function of status and stems entirely from the 

tortious conduct of the [employee], not from any tortious conduct by the [employer.]” 

Women First, 161 A.3d at 45; accord Kocsis v. Harrison, 543 N.W.2d 164, 169 (Neb. 

1996). Therefore, “[i]t is the negligence of the servant that is imputed to the 

master, not the liability.” Cohen, 60 S.W.3d at 538 (emphasis added). Indeed, we 

have previously recognized: “[I]t is self-evident, because the master and servant are 

severally liable in such circumstances, that the right of plaintiff, at his option, to 

sue them separately would remain.” Melichar v. Frank, 78 S.D. 58, 62, 98 N.W.2d 

345, 347 (1950). 

[¶17.] Nevertheless, Waste Connections claims it “cannot be independently 

held liable on a theory of vicarious liability” because Cameron chose to name Osler 

as a party and Osler was dismissed. We disagree. First, Waste Connections directs 

this Court to no law in support of this proposition. Second, while “the foundation of 

the action against the employer is still negligence,” see Verrastro, 2019 WL 1510458, 

at *2, liability is imposed because the plaintiff brought suit against the employer 

and put on evidence that the employee committed a tort within the scope of 

employment, see Women First, 161 A.3d at 45. Therefore, contrary to Waste 

Connections’ view, Osler’s culpability can be established even though Osler has no 

civil liability to Cameron. See 2A C.J.S. Agency § 463 (June 2019 update) (“[T]he 

fact that an agent is able to escape liability because the statute of limitations has 
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run as to the agent will not necessarily insulate the principal from vicarious 

liability.”). 

[¶18.] Here, the dismissal of Osler was purely procedural and available to 

Osler because Cameron failed to serve him within the time limit allowed by the 

statute of limitations. The dismissal did not examine or determine Osler’s 

culpability, and there has been no release of Cameron’s claim or an exchange of 

value. Because Cameron properly initiated suit against Waste Connections prior to 

the expiration of the statute of limitations, the circuit court erred when it held that 

the dismissal of Osler terminated Cameron’s suit against Waste Connections. 

[¶19.] Reversed. 

[¶20.] GILBERTSON, Chief Justice, and KERN, JENSEN, and SALTER, 

Justices, concur.