Respondent alleged her child died as the result of Pam Gaither’s negligence. She brought a timely wrongful death and survival action against appellant South Carolina Department of Disabilities and Special Needs (State Agency). After the statute of limitations expired, respondent was permitted to amend her complaint under Rule 15(c), SCRCP, to add appellant Fairfield/Newberry Disabilities Special Needs Board (Local Board) as a defendant.
The circuit court filed an order granting summary judgment under Rule 56(d), SCRCP, holding:
1) Gaither and Local Board are employees of State Agency;
2) Gaither and Local Board are independent contractors of State Board, which is liable for Gaither’s negligence because the State Board is either Gaither’s “ostensible principal” or because State Board owes a non-delegable duty to respondent;
3) State Agency is estopped from arguing that Local Board and Gaither are not its independent contractors;
4) Respondent’s amended complaint adding Local Board as a defendant relates back to the original complaint under Rule 15(c), SCRCP; and
5) Whether State Agency, Local Board, and/or Gaither breached the applicable standard of care is a jury issue.
Local Board and State Agency appealed.
Local Board raises only one issue: whether the circuit court erred in permitting respondent to add it as a defendant after the expiration of the statute of limitations. Unlike the majority, I feel that we must address this issue and would reverse. Jackson v. Doe, 342 S.C. 552, 537 S.E.2d 567 (Ct.App.2000). State Agency raises a number of issues, which I have addressed below.
*370A. Employer/Employee Relationship
The circuit court concluded that Gaither and Local Board are employees of State Agency by applying a four-part test traditionally used to distinguish an employee/employer (master/servant) relationship from a principal/independent contractor relationship in the context of workers’ compensation cases. E.g., Nelson v. Yellow Cab Co., 349 S.C. 589, 564 S.E.2d 110 (2002). In my opinion, where as here the legislature has created governmental entities and defined their duties and responsibilities, we should examine the applicable statutes to determine the nature of their relationship. Under these circumstances, there is no need to resort to the workers’ compensation test.
State Agency was created by the “South Carolina Mental Retardation, Related Disabilities, Head Injuries, and Spinal Cord Injuries Act” (the Act). S.C.Code Ann. § 44-20-240 (2002). It is authorized to coordinate and oversee programs, and to contract with other state and local agencies to provide services and programs, § 44-20-250, and to employ its own staff. § 44-20-220. The Act provides for the creation of, and continuation of, county-based special needs and disabilities boards, § 44-20-375. These local boards are “public entities,” § 44-20-375(D), and, among other things, are authorized to employ personnel or contract with service vendors. § 44-20-385(5).
In my opinion, there is no evidence in the record to support the trial court’s holding that Local Board is an employee of the State Agency. Moreover, I can find nothing to support the conclusion that Gaither was an employee of State Agency as opposed to Local Board. To the extent the majority reverses the order granting summary judgment to respondent on her claim that Gaither and Local Board are the State Board’s employees, I concur.
B. Agency
I agree with the majority that the finding of a principal-agent relationship between State Agency and/or Local Board or Gaither must be reversed as there is simply no evidence respondent relied upon any representations by State Agency.
*371C. Non-delegable Duty
In my opinion, the trial court erred in granting respondent summary judgment and holding that State Agency was vicariously liable for Gaither’s alleged negligence. Unlike the majority, however, I would not hold that there is no evidence of such a duty, but would instead hold that there is a material question of fact whether such a duty may exist. Compare Madison ex rel. Bryant v. Babcock Center, Inc., 371 S.C. 123, 638 S.E.2d 650 (2006) (State Agency may be liable for negligent supervision by third party). I would therefore reverse the summary judgment ruling with the understanding that the trial court may conclude upon remand that there is such a duty.
D. Estoppel
As a sanction for perceived discovery abuses by State Agency the trial judge held State Agency was estopped from denying Local Board and Gaither are its independent contractors, a ruling which State Agency has appealed. Unlike the majority, I believe that we must address the issue now. If we leave it in effect, State Agency’s liability will be established by estoppel. It then matters not that we have reversed the principal-agency holding, or the employer-employee/independent contractor-principal holding, or that we remain unconvinced at this juncture that there exists a non-delegable duty. For this reason, I would address the estoppel ruling, which I conclude must be reversed.
In estopping State Agency, the trial court relied on Rule 37, SCRCP. Specifically, the court cites Rule 37(a)(3) for the proposition that “an evasive or incomplete answer is to be treated as a failure to answer,” finds State Agency’s discovery responses were evasive and incomplete, and estops the Agency as a sanction, citing Rule 37. As State Agency points out, however, the first clause of Rule 37(a)(3) provides “For purposes of this subdivision,” thereby limiting its reach to situations where a party may move for an order compelling discovery [Rule 37(a)], and not affecting these situations in which a court may impose discretionary sanctions [Rule 37(b)]. I make no judgment whether State Agency’s discovery conduct was appropriate, but would merely hold that the trial judge cannot *372rely upon Rule 37(a)(3) to estop State Agency under Rule 37(b).
E. Improper Defendant
The circuit court also held that State Agency waived its right to allege it was not the proper defendant because the defense of “improper defendant” is an affirmative defense under Rule 8(c), SCRCP, which the Agency failed to plead and thereby waived. I agree with State Agency that there is no such “affirmative defense:” it is the plaintiffs burden to prove her case against the defendant, not the defendant’s obligation to prove he is not the proper party. I would reverse the order to the extent it holds State Agency may not deny that it may be liable for Gaither’s alleged negligence.
CONCLUSION
For the reasons given above, I concur in part and dissent in part.