(concurring in part & concurring specially in part).
[¶ 22.] I concur in Issue 2 and concur specially in Issue 1.
[¶ 23.] The majority opinion is correct in asserting that the State “is immune from suit in state courts without legislative consent!].]” Bego v. Gordon, 407 N.W.2d 801, 806 (S.D.1987) (citations omitted). However, the legislature consented to suit in this case. The South Dakota Legislature established the Public Entity Pool for Liability (PEPL) fund, effective March 1, 1987. This fund is to provide a “sole source for payment of valid tort claims against all member public entities of the state and their officer and employees for all liability they may incur based upon negligence ... in performing ... acts within an employee’s scope of employment!].]” SDCL 3-22-1. The State is considered a “member, to the extent it elects to participate.” SDCL 3-22-2(9). Clearly, the State has conditionally waived sovereign immunity, but the extent thereof is a question of fact.
[¶ 24.] Under the principles of agency, the State is amenable to suit for the negligent actions or inactions of its employees:
Whether a principal will be held liable for the conduct of an agent is determined by the nexus between the agent’s employment and the activity which actually caused the injury. Liability will be imposed upon the principal when the nexus is sufficient to make the resulting harm foreseeable. In other words, if the agent’s employment puts him in a position where his harmful conduct would not be ‘so unusual or startling that it would be unfair to include the loss caused by the injury among the costs of the employer’s business,’ then the principal is liable for the injury.
Olson v. Tri-County State Bank, 456 N.W.2d 132, 135 (S.D.1990) (internal quotation omitted). Obviously, a nexus existed here between the defendant’s employment (to supervise the prison guards and protect the basic rights of inmates) and the activity causing the injury (a prison guard raping an inmate).
[¶ 25.] However, I concur specially because Casazza failed to establish that there was a genuine issue of material fact. There was testimony that some inmates complained about Martin Aponte’s tendency to sexually assault women within the prison before Casazza was even incarcerated. Yet, there was no showing, other than mere allegations, that any agents of the State were aware of these complaints:
Q: You indicated that complaints had gone out through [an inmate].
A: Uh-huh.
Q: Who were the persons specifically who made the complaints, if you recall?
A: I’m not sure.
Q: Okay. Were you a person who made complaints?
A: No.
[¶26.] There was also testimony from one inmate who stated that she sent five letters to state legislators and state senators referring to “specific incidences with Martin Aponte and his behavior.” However, she further testified that she did not have any information about Aponte’s raping inmates, but simply accused Aponte of bringing contraband into the prison facili*878ties. In fact, she testified that at the time she wrote the letters, she had no information about sexual contact by Aponte with inmates. Even these letters are not in the record.
[¶ 27.] Clearly, all of the allegations that complaints of sexual contact were made to prison personnel were unsubstantiated and there was no showing that these complaints were communicated to any of the defendants or anyone responsible to report to them.
[¶ 28.] In summary, there was no showing that genuine issues of material fact existed and summary judgment should be affirmed.