Norgeot v. State ( 1983 )

FOSHEIM, Chief Justice

(concurring in result).

I agree with the majority that since the State can act only through its employees, Merrill v. Birhanzel, 310 N.W.2d 522 (S.D.1981); Plumbing Supply Co. v. Board of Education, Etc., 32 S.D. 270, 142 N.W. 1131 (1913); Bailey v. Lawrence County, 5 S.D. 393, 59 N.W. 219 (1894), it would be unreasonable and inconsistent to hold that the State can waive immunity for its employees and not for itself. However, the majority opinion then leaves me. In an apparent attempt to maintain consistency with Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982) and National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982), the opinion illogically concludes that even though a state employee is acting within the scope of his employment, immunity may nevertheless exist for the State but not for the employee. If waiver of immunity is unseverable from employee to State, then it logically follows that immunity is also unseverable from the State to an employee acting within the scope of employment.