Truman v. Griese

#24707-a-DG

2009 SD 8

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

* * * *

MONNY TRUMAN, individually and as
special administrator of the Estate of
Patricia Truman, Deceased, STEVEN
ROUNDS and DEE ANN ROUNDS,
husband and wife, individually and as
conservators for CIARA ROUNDS and
ZACHARY ROUNDS, minors, and
as the natural parents of JESSE
GERARD ROUNDS, deceased
unborn child, Plaintiffs and Appellants,

v.

DARREN GRIESE, South Dakota
Department of Transportation
Pierre Region Traffic Engineer,
and JOHN DOES, employees of the
South Dakota Department of
Transportation, Defendants and Appellees.

* * * *

APPEAL FROM THE CIRCUIT COURT OF
THE SIXTH JUDICIAL CIRCUIT
HUGHES COUNTY, SOUTH DAKOTA

* * * *

HONORABLE LORI S. WILBUR
Judge

* * * *

ARGUED APRIL 23, 2008
REASSIGNED DECEMBER 9, 2008
OPINION FILED 02/11/09
RONALD A. PARSONS, JR.
A. RUSSELL JANKLOW
TAMARA A. WILKA of
Johnson, Heidepriem, Janklow,
Abdallah & Johnson, LLP
Sioux Falls, South Dakota Attorneys for plaintiffs
and appellants.

JEFFREY R. CONNOLLY
J. CRISMAN PALMER of
Gunderson, Palmer, Goodsell
& Nelson, LLP
Rapid City, South Dakota Attorneys for defendants
and appellees.
#24707

GILBERTSON, Chief Justice (on reassignment).

[¶1.] Monny Truman (Truman), individually and as special administrator of

his wife Patricia’s estate, and Steven and Dee Ann Rounds1 sued Darren Griese

(Griese), in his official capacity as South Dakota Department of Transportation

(DOT) Pierre Region Traffic Engineer, and employees of the DOT as John Does after

a car accident forty miles west of Pierre. Griese moved for summary judgment

based on sovereign immunity. The trial court granted Griese’s motion. Truman

appeals. 2 We affirm.

FACTS

[¶2.] The accident occurred at the intersection of three highways: South

Dakota Highway 34, South Dakota Highway 63, and United States Highway 14.

This intersection is also known as “Four Corners.” The traffic design of this

interchange is not easily conveyed in words. S.D. Highways 63 and 34 meet at a “T”

intersection. S.D. 34 forms the top of the “T,” running east-west. S.D. 63 forms the

bottom of the “T,” north-south, but continues west along the top-left part of the “T,”

merging at a right angle with S.D. 34.

[¶3.] U.S. 14 travels across top-right part of the “T,” east-west with S.D. 34,

then continues north-south with S.D. 63. However, U.S. 14 does not continue to a

1. Steven and Dee Ann sued individually; as conservators for their children,
Ciara and Zachary; and as the natural parents of their deceased unborn
child, Jesse. The Trumans are Dee Ann’s parents.

2. The plaintiffs/appellants will be referred to as Truman unless further
distinction is necessary. Likewise, the defendants/appellees will be referred
to as Griese.

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stop at the right angle intersection of the “T.” Instead, U.S. 14 curves between the

two roads, just southeast of the “T.” This curved route creates two “Y” intersections

at the junctions of U.S. 14 and S.D. 63 (south of the “T” intersection), and U.S. 14

and S.D. 34 (east of the “T” intersection). As a result of this design, the through-

traffic on U.S. 14 does not stop to make the direction change. See Attachment 1.

[¶4.] On February 13, 2004, Monny and Patricia Truman, Dee Ann Rounds,

twelve-year-old Ciara Rounds, and eight-year-old Zachary Rounds were driving in

Truman’s vehicle from Pierre to Rapid City. They traveled west-bound on U.S.

14/S.D. 34. Truman approached Four Corners and followed U.S. 14 along the south-

bound curve.

[¶5.] At the same time, Richard Giago was driving north on S.D. 63/U.S. 14

(The bottom of the “T”). Giago’s wife, Sue Ann, and son, Jayden, were passengers in

his vehicle. When Giago reached the point where S.D. 63/U.S. 14 diverge, he

continued northward on S.D. 63, across the “Y” junction. 3

[¶6.] The vehicles collided almost head on. The results were devastating.

Truman suffered broken bones, a skull injury, and permanent vision loss in his

right eye; Patricia was killed; Dee Ann suffered severe head injuries and multiple

broken bones; Dee Ann and Steven lost their unborn child, Jesse; Ciara and

Zachary suffered minor injuries; Giago and Jayden both suffered severe injuries and

were hospitalized; Sue Ann was killed.

3. Signs warned of the oncoming curve from both directions, and a double yellow
line crossed the junction down the center of U.S. 14, across S.D. 63’s north-
bound path.

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[¶7.] Truman brought claims against Griese for negligence, wrongful death

and loss of consortium. Truman alleged Griese violated duties imposed by SDCL

31-28-6 by failing to post additional traffic control signs at Four Corners. Griese

filed a motion for summary judgment on the basis of sovereign immunity. The trial

court entered an order in favor of Griese’s motion.

[¶8.] Truman appeals the following issue:

Whether Truman’s claims under SDCL 31-28-6, regarding the
necessity for and placement of highway warning signs, are barred by
sovereign immunity under the facts of this case. 4

STANDARD OF REVIEW

[¶9.] “Sovereign immunity is the right of public entities to be free from

liability for tort claims unless waived by legislative enactment.” Public Entity Pool

for Liability v. Score, 2003 SD 17, ¶7 n3, 658 NW2d 64, 67 n3 (citing Alden v.

Maine, 527 US 706, 715, 119 SCt 2240, 2247, 144 LEd2d 636 (1999)). “In the

absence of constitutional or statutory authority, an action cannot be maintained

against the State.” Id. (citing generally Lick v. Dahl, 285 NW2d 594 (SD 1979);

Darnall v. State, 79 SD 59, 108 NW2d 201 (1961); Griffis v. State, 68 SD 360, 2

NW2d 666 (1942); Mullen v. Dwight, 42 SD 171, 173 NW 645 (1919)) (emphasis

added).

4. Truman presents the issue as an all-encompassing holding “regardless of the
facts of any particular case.” (Appellants’ Brief, p. 2). Such an approach is
outside the scope of appellate review of this case. Throughout our numerous
cases dealing with governmental entities and potential liability for failure to
maintain highways, the question was, and continues to be, whether a
plaintiff has identified facts particular to his or her case that establish, as a
matter of law, that the function allegedly omitted is a ministerial function.

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[¶10.] It is settled that whether sovereign immunity applies is a question of

law. Bickner v. Raymond Township, 2008 SD 27, ¶10, 747 NW2d 668, 671 (citations

omitted). “Whether sovereign immunity precludes a plaintiff from pursuing a claim

is a question of law which is reviewed de novo.” King v. Landguth, 2007 SD 2, ¶8,

726 NW2d 603, 607 (citing Wulf v. Senst, 2003 SD 105, ¶19, 669 NW2d 135, 142

(citing Bego v. Gordon, 407 NW2d 801 (SD 1987))). Additionally, the predicate

question, whether the governmental duties under SDCL 31-28-6 are ministerial or

discretionary, is a question of law for this Court. Bickner, 2008 SD 27, ¶10, 747

NW2d at 671 (citing Hansen v. SD Dept. of Transp., 1998 SD 109, ¶18, 584 NW2d

881, 885).

ANALYSIS AND DECISION

[¶11.] No one can look at the facts surrounding this litigation without a sense

of sorrow. Lives were lost and lives were damaged. Yet our task is a narrow one--

to determine if the State of South Dakota’s sovereign immunity applies. In order to

make this determination, first, we identify Truman’s claim as it relates to this

action. Next, we address the distinction between ministerial and discretionary

duties in recognizing sovereign immunity. Then, we apply our sovereign immunity

analysis to SDCL 31-28-6. Finally, we address the inapplicability of Truman’s

evidence and arguments regarding “material facts” in the grant of summary

judgment on the basis of sovereign immunity. Because we conclude that Griese’s

duties under SDCL 31-28-6 are discretionary, sovereign immunity applies and the

trial court is affirmed.

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Truman’s Claim

[¶12.] It is useful to begin by restating the precise conduct that Truman

alleges does not have the protection of sovereign immunity. Broadly, Truman

asserts that the omission 5 of additional signs at Four Corners violated Griese’s duty

to install traffic control signs pursuant to SDCL 31-28-6. This alleged omission

could have occurred during one of two time periods-- either in the initial

engineering and design of the intersection, or when a duty to erect signs arose after

the intersection was built.

[¶13.] The State has not waived sovereign immunity or consented to suit for

any omission of signs that occurred during the initial engineering and design of

Four Corners.

To the extent that any public entity, other than the state,
participates in a risk sharing pool or purchases liability
insurance and to the extent that coverage is afforded
thereunder, the public entity shall be deemed to have waived
the common law doctrine of sovereign immunity and shall be
deemed to have consented to suit in the same manner that any
other party may be sued.

5. This Court has drawn a distinction between cases where existing signs are
knocked over or damaged, which only takes the ministerial task of restoring
or replacing, and cases where there was never a sign to begin with.

In Fritz v. Howard Tp., 1997 SD 122, ¶20, 570 NW2d 240, 244, we concluded:
Once a warning sign is erected, it becomes
a physical and integral part of the highway. As
an appurtenant part of the highway the county
had a continuing duty to maintain and keep the
sign in reasonable repair for the safety of public
travel.
(quoting Kiel v. DeSmet Tp., 90 SD 492, 497, 242 NW2d 153, 155 (1976)).

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SDCL 21-32A-1. Pursuant to SDCL 3-22-1, the engineering and design of roadways

is specifically excluded from this State’s public entity pool for liability (PEPL). 6

Therefore, the State has not waived common law sovereign immunity for any

omission that occurred during this time period.

[¶14.] Instead, Truman’s claim alleges that changes have occurred in the

nature of the intersection since its construction, which requires the erection of new

warning signs. Truman does not identify any physical changes that have occurred

or that the road has fallen out of repair. Therefore, the only issue is whether the

legal requirements, duties, or standards applied to this intersection have changed.

[¶15.] The PEPL Memorandum of Liability Coverage to Employees of the

State of South Dakota, point 16, provides that the ministerial acts of a government

actor are not excluded from coverage. Because these acts are not excluded from

coverage, the PEPL fund provides coverage for damages that result from ministerial

acts. Thus, Truman argues, sovereign immunity has been waived for these acts.

[¶16.] The issue of PEPL coverage is not the definitive issue regarding

Griese’s purported liability. Even if, as argued by Truman and the dissent, PEPL

coverage is a statutory waiver of sovereign immunity in this case, such a waiver

6. This exclusion from PEPL coverage is also contained in PEPL Memorandum
of Liability Coverage to the Employees of the State of South Dakota 13-15,
point 10.

Even if PEPL coverage existed, such coverage is not necessarily relevant to
the issue of the waiver of sovereign immunity. This Court has unanimously
and recently held that the purchase of liability insurance does not waive
statutory governmental immunities. Unruh v. Davidson County, 2008 SD 9,
744 NW2d 839.

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alone does not create a duty where none would otherwise exist. See Gulbranson v.

Flandreau Tp. 458 NW2d 361, 363 (SD 1990); Zens v. Chicago, Milwaukee, St. Paul

& Pac. R.R. Co., 386 NW2d 475 (SD 1986). The waiver of immunity and consent to

be sued “in the same manner that any other party may be sued” contained in SDCL

21-32A-1 does not itself impose duties on a public official with PEPL coverage. “The

legislature’s intent to impose new duties upon public entities is simply not

expressed in SDCL 21-32A-1. In fact, the term “duty” is not used at all in this

statute.” Gulbranson, 458 NW2d at 363. “[T]he phrase ‘in the same manner’ refers

to a mode of procedure and not to the basis upon which a public entity may be

sued.” Id. Therefore, for Truman’s claims to survive summary judgment on the

basis of sovereign immunity, Truman must prove that Griese owed Truman a

ministerial duty as a matter of law.

[¶17.] Truman claims that the Legislature has waived sovereign immunity

for the omission of signs at Four Corners because, as he characterizes Griese’s

duties under SDCL 31-28-6, this omission is a ministerial duty.

Sovereign Immunity: Ministerial and Discretionary Duties

[¶18.] Shortly after the adoption of Article III, section 27 of our State

Constitution, this Court first recognized that sovereign immunity applied to the

construction and maintenance of highways. Bailey v. Lawrence County, 5 SD 393,

59 NW 219 (1894).

[W]hile it is true that the legislature has imposed upon counties
the duty of keeping in repair the bridges on the public highways,
and provided the method for raising revenue by taxation
requisite for such purpose, yet to hold that the counties are
thereby made liable for injuries caused by defects in such

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bridges, in the absence of legislation making them so liable,
would be a species of judicial legislation.

Id. at 221.

[¶19.] Shortly thereafter, we concluded that sovereign immunity applied to

discretionary governmental duties but not to ministerial ones. State v. Ruth, 9 SD

84, 68 NW 189 (1896). In Ruth we defined a ministerial duty as a narrow one. It is

where a governmental employee “disregarded a plain provision of the law[.]” Id. at

191. All other duties that fell outside that definition were discretionary. We also

noted that “[i]t is the nature of the particular duty, and not the character of the

office, which determines whether or not a duty is ministerial.” Id.

[¶20.] We have recently stated:

It is well-settled that suits against officers of the state in their
official capacity, are in reality suits against the State itself. It is
further settled that the State is generally immune from suit
under Article III Section 27 of the South Dakota Constitution.
With respect to individual capacity suits, state employees who
are sued in an individual capacity are entitled to immunity
dependent upon the function performed by the employee. State
employees are generally immune from suit when they perform
discretionary functions, but not when they perform ministerial
functions.

Sisney v. Reisch, 2008 SD 72, ¶12, 754 NW2d 813, 818-19 (citations omitted).

[¶21.] [A] ministerial act is defined as absolute, certain, and
imperative, involving merely the execution of a specific duty
arising from fixed designated facts or the execution of a set task
imposed by law prescribing and defining the time, mode and
occasion of its performance with such certainty that nothing
remains for judgment or discretion, being a simple, definite duty
arising under and because of stated conditions and imposed by
law. A ministerial act envisions direct adherence to a governing
rule or standard with a compulsory result. It is performed in a
prescribed manner without the exercise of judgment or discretion
as to the propriety of the action.

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Hansen, 1998 SD 109, ¶23, 584 NW2d at 886 (citations omitted) (emphasis in

original and added). See also King, 2007 SD 2, ¶12, 726 NW2d at 607; Wulf, 2003

SD 105, ¶20, 669 NW2d at 142; Casazza v. State, 2000 SD 120, ¶13, 616 NW2d 872,

875-76. “If the duties do not fall within [these] definition[s], they are not

ministerial and thus are discretionary for this is the limits of the abrogation of

sovereign immunity authorized by the Legislature.” Hansen, 1998 SD 109, ¶23, 584

NW2d at 886.

[¶22.] In order to find a duty “ministerial,” we must find a “governing rule or

standard” so clear and specific that it directs the government actor without calling

upon the actor to ascertain how and when to implement that rule or standard.

Moreover, in Hansen, we reviewed the duties of that DOT official and noted “one

could not pluck an ordinary citizen off the street and expect they could successfully

execute the duties of [this office].” 1998 SD 109, ¶29, 584 NW2d at 887-888. See

also Wulf, 2003 SD 105, ¶29, 669 NW2d at 146. 7

Nature of the Duties Under SDCL 31-28-6

[¶23.] SDCL 31-28-6 provides:

The public board or officer whose duty it is to repair or maintain
any public highway shall erect and maintain at points in
conformity with standard uniform traffic control practices on
each side of any sharp turn, blind crossing, or other point of
danger on such highway, except railway crossings marked as
required in § 31-28-7, a substantial and conspicuous warning
sign, which sign shall be on the right-hand side of the highway

7. Compare with Kyllo v. Panzer, 535 NW2d 896 (SD 1995) wherein we held an
automobile being driven by a state employee was a ministerial duty.
Presumably one could pluck off the street an adult in South Dakota and be
assured that the vast majority were capable of driving an automobile.

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approaching such point of danger. A violation of this section is a
Class 1 misdemeanor.

(Emphasis added.) Truman alleges that the omission of warning signs at Four

Corners is a violation of a ministerial duty under SDCL 31-28-6. We disagree.

[¶24.] Under SDCL 31-28-6, the “governing rule or standard” is not the mere

presence of a “sharp turn, blind crossing, or other point of danger,” but the existence

of “standard uniform traffic control practices.” See id. Contrary to Truman’s

position presented at oral argument, the language “in conformity with standard

uniform traffic control practices” does not refer to the characteristics of the

“substantial and conspicuous warning sign.” 8 Instead, this phrase, “in conformity

with standard uniform traffic control practices,” plainly modifies the “points” at

which signs “shall” be located. Therefore, any ministerial duties pertaining to the

placement of traffic control signs under this statute must be required by standard

uniform traffic control practices.

[¶25.] The placement of signs in situations that have neither standard nor

uniform practices must necessarily be outside any ministerial requirements of

SDCL 31-28-6. We have previously held that such sign placement, per SDCL 31-28-

6, requires “the exercise of judgment or discretion as to the propriety of the action.”

Hansen, 1998 SD 109, ¶23, 584 NW2d at 886. Therefore, in order to establish a

ministerial duty under this statute, “standard uniform traffic control practices”

must exist and delineate at which specific points signs must be erected at this type

of intersection. See SDCL 31-28-6.

8. Such characteristics include the size, shape and color of warning signs.

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[¶26.] This rule is neither new nor novel. In Bickner v. Raymond Township,

summary judgment was unanimously affirmed by this Court, in part, because

“Bickner cite[d] no provision in the MUTCD [a standard uniform traffic control

manual] that specifically requires a township to erect a warning sign in these

circumstances.” 2008 SD 27, ¶14, 747 NW2d 668, 672. As in Bickner, Truman has

failed to provide specific governing provisions from the MUTCD or any other

standard uniform traffic practice for intersections like Four Corners. The MUTCD

diagrams Truman has presented depict other types of intersections. These other

designs are inapplicable. See infra ¶¶37-40.

[¶27.] While Truman and the dissent seek to limit Bickner’s holding to the

failure of the plaintiff to cite to a specific section of the MUTCD manual, the actual

holding was broader and consistent with Hansen and Fritz v. Howard Tp., 1997 SD

122, 570 NW2d 240. In Bickner we held: “The [governmental entity] also cannot be

held liable under SDCL 31-28-6 because the [entity’s] decision to erect a warning

sign in the first place is protected by the doctrine of sovereign immunity. As this

Court recognized in Hansen, the initial decision to erect warning signs is

discretionary.” 2008 SD 27, ¶14, 747 NW2d at 672 (emphasis added).

[¶28.] The dissent makes much of the word “shall” as a mandatory directive

as it is found in the text of SDCL 31-28-6. See infra ¶¶53-54. However, “[s]tatutes

and court rules must be construed in their entirety. The effect of the word ‘shall’

may be determined by the balance of the text of the statute or rule.” Discover Bank

v. Stanley, 2008 SD 111, ¶21, 757 NW2d 756, 762-63 (citations omitted). In an

examination of the text of SDCL 31-28-6, it is only when that public official in the

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exercise of his or her discretion determines that the public highway contains “any

sharp turn, blind crossing or other point of danger on such highway” based upon

“standard uniform traffic control practices” that he or she “shall erect and maintain

. . . a substantial and conspicuous warning sign . . .” 9 The statute contained “shall”

in 1997 when the dissenter of today authored the unanimous opinion of Fritz in

which he held contrary to the position he now espouses:

Kiel [v. DeSmet Tp.] repeats a prior holding of this court, i.e.,
“that the failure of a governing board or body to install a road
sign in the first instance does not give rise to a cause of action
under [analogous statutes].” 90 SD [492,] at 497, 242 NW2d
[153,] at 156 [(1976)] (citing Dohrman v. Lawrence County, 82
SD 207, 143 NW2d 865 (1966); Reaney v. Union County, 69 SD
392, 10 NW2d 762 (1943)). Those cases dealt, not with defects
such as the washout in this case but with instances where a sign
was never erected to warn of sharp curves (Dohrman; Reaney) or
steep hills (Dohrman). The rationale for not imposing liability
for failure to erect warning signs was that these conditions were
inherent in the design or plan of the highway and did not result
from the highway becoming defective because it fell out of
repair. Dohrman, 82 SD at 210-11, 143 NW2d at 867; Reaney,
69 SD at 397, 10 NW2d at 764. Furthermore, as the Kiel court
noted, “It may be assumed that public authorities in the
discharge of their duties under this statute have a measure of
discretion in determining what curves, crossings and other points
of danger require a warning sign and failure to erect or install
one, is not ordinarily actionable.” 90 SD at 496, 242 NW2d at
155. 10

9. The dissent ignores the qualifying language, “at points in conformity with
standard uniform traffic control practices,” in discussing the duties under
SDCL 31-28-6. As a consequence, the dissent would supplant jury
determinations for the statute’s uniform standards. Such a conclusion
radically alters the discretionary/ministerial distinction from a question of
law to a question of fact, contrary to our longstanding precedent. See supra
¶10.

10. The dissent suggests that the duties under SDCL 31-28-6 are
ministerial because the statute provides for misdemeanor criminal penalties.
See infra ¶59. Following the dissent’s rationale, the existence of the criminal
(continued . . .)
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1997 SD 122, ¶15 n3, 570 NW2d at 243 n3 (emphasis added). The basis of his 1997

opinion was well founded as it soundly rested upon Kiel, which was also a

unanimous opinion of this Court. Moreover, in Hansen, we examined the issue for a

________________________
(. . . continued)
penalty itself makes all sign placement ministerial. The dissent declares
that “the duties [under SDCL 31-28-6] are not discretionary.” Id. This
directly contradicts the quoted passage from Fritz, which today’s dissenting
author wrote. Furthermore, if the dissent were correct and the criminal
penalty is the “fatal defect to the majority’s reasoning,” then all of our
previous cases finding discretionary duties under SDCL 31-28-6 have the
same fatal defect and would have to be overruled. Cases decided under
SDCL 31-28-6 and predecessor statutes: Bickner, 2008 SD 27, 747 NW2d 668
(“[T]here exists ‘a measure of discretion when determining when warning
signs are necessary and that failing to erect signs is generally not
actionable.’”); Hansen, 1998 SD 109, 584 NW2d 881 (Finding the placement of
warning signs a discretionary act in the absence of uniform traffic control
practices); Fritz, 1997 SD 122, 570 NW2d 240; Kiel , 90 SD 492, 242 NW2d
153 (1976) (adopting and quoting Jensen v. Hutchinson County, 84 SD 60,
166 NW2d 827 (1969) (Hanson, J., dissenting)); Dohrman, 82 SD 207, 143
NW2d 865 (1966); Reaney , 69 SD 392, 10 NW2d 762 (1943).

Further, the only ministerial duties that arise under SDCL 31-28-6
and could lead to criminal penalties are found in “standard uniform
traffic control practices.” According to the plain language of the
statute, it is only these “standard . . . practices” that the Legislature
has mandated and penalized. This is all that the Legislature has
stated “shall” be done. The dissent fails to address this qualifying
language in the statute. The Legislature has not required performance
in non-standard situations. Decisions regarding sign placement in
non-standard traffic control practices must be discretionary.

In order to evade sovereign immunity, the dissent transforms Griese’s
discretionary duty into a ministerial one by “reading out” the statute’s
“standard . . . practices.” In effect, this “reading out” is as much a
“species of judicial legislation” as if we were to “hold that the counties
are . . . made liable for injuries caused by defects in . . . bridges, in the
absence of legislation making them so liable.” Bailey, 59 NW at 221;
see supra ¶18.

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third time and construed SDCL 31-28-6 as creating a discretionary duty upon the

defendant protected by sovereign immunity. 11

[¶29.] Additionally, Truman fails to recognize that in order for a government

actor to be “in conformity with” standards and to “perform [them] in a prescribed

manner,” the standard must preexist the act itself. Without preexisting standards,

there is no stated policy for the state actor to implement. 12 If the Legislature or

other policy maker has not demanded performance, the decision to act or not is

discretionary. Furthermore, absent evidence of new standards for this traffic

design, Truman implicitly challenges the initial engineering and design of Four

Corners. As stated above, omissions from the initial engineering and design are

clearly protected by sovereign immunity. See supra ¶13.

[¶30.] Ultimately, Truman argues that Four Corners contains a design that

he believes is unsafe. Because of its non-standard design, he is unable to establish

standard uniform traffic control practices regarding the placement of warning signs.

11. The dissent once again raises the same type of arguments that it raised in its
solitary dissent in Hansen and which we rejected at that time. We continue
to reject those arguments today. See 1998 SD 109, ¶¶ 39-54, 584 NW2d 881,
889-895 (Sabers, J., dissenting).

12. This Court has previously recognized the distinction between creating
governmental policy and merely implementing the same. See King, 2007 SD
2, ¶11, 726 NW2d at 607 (quoting Kyllo v. Panzer, 535 NW2d 896, 902 (SD
1995)) (noting that sovereign immunity extends to employee’s discretionary
acts because “such discretionary acts participate in the state’s sovereign
policy-making power.”) (emphasis added); Wulf, 2003 SD 105, ¶20, 669 NW2d
at 143 (“a ministerial act is the simple carrying out of a policy already
established. . .”); Nat’l Bank of SD v. Leir, 325 NW2d 845, 850 (SD 1982).

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Without standard uniform traffic control practices, the placement or omission of

signs by government actors is discretionary under SDCL 31-28-6. 13

[¶31.] Wulf, 2003 SD 105, 669 NW2d 135, so heavily relied upon by Truman

and the dissent, is obviously distinguishable. See infra ¶¶62-65. It did not deal

with SDCL 31-28-6 or the subject of the placement of highway signage. More

importantly, Wulf dealt with a very specific DOT policy regarding sanding and

plowing roadways during snowstorms. This policy dictated exactly when and how

sanding was to occur. The Wulf court followed Hansen in concluding that the

specific DOT Policy 2571, regarding the times and methods for sanding in a

snowstorm, amounted to a virtual check-list with no discretion as to whether to do

sanding, when to do it, or how to do it. Thus, the duties of the defendant DOT

supervisors “may be defined and applied with relative ease,” and were ministerial.

Wulf, 2003 SD 105, ¶32, 669 NW2d at 147 (quoting Hansen, 1998 SD 109, ¶31, 584

NW2d at 888 (quoting DuBree v. Commonwealth, 393 A2d 293, 295 (Pa 1978)). In

reaching this conclusion, we also held that “but for” DOT Policy 2571:

Decisions made by Senst and Bultje as to how to allocate snow
plow operators, resources and equipment, how many workers to
call in for any given winter storm event, how many trucks to put
on the road at any given time and where on the highways to
place those vehicles are all discretionary and subject to
sovereign immunity.

13. The question of whether the State should re-engineer, redesign, or
reconstruct these types of intersections is beyond the authority of this Court.
That is a policy decision best left to the DOT and the Legislature. This Court
will defer to their discretion in the design of Four Corners and similar
intersections.

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Wulf, 2003 SD 105, ¶28, 669 NW2d at 145-146. Thus, what limited relevance Wulf

brings to the question now before us actually supports Griese’s argument.

[¶32.] In conclusion, “[a]ny decision regarding the installation of additional

markers at this [location] was a discretionary function. The circuit court’s grant of

summary judgment has not been shown to be improper as sovereign immunity bars

[plaintiff’s] negligence claim against the DOT employees.” King, 2007 SD 2, ¶21,

726 NW2d at 610.

Truman’s Evidence and Material Facts
Concerning Sovereign Immunity

[¶33.] In order to determine whether the sovereign immunity defense applies,

a court must, to some extent, consider the factual context of the case. A valid basis

for summary judgment exists when the legal conclusion is made that an act was

discretionary in its context, thus under the aegis of sovereign immunity. However,

Truman and the dissent argue that the MUTCD diagrams and other evidence

create a question of fact. Because a question of fact exists, they argue, a jury should

determine the applicability of these diagrams. Further, they argue, this question of

fact precludes summary judgment. We disagree.

[¶34.] The introduction of factual information in order to properly categorize

a government actor’s duty as ministerial or discretionary does not transform

sovereign immunity analysis from a question of law to a question of fact.

[I]n the final analysis, the decision as to whether a public
official’s acts are discretionary or ministerial must be determined
by the facts of each particular case after weighing such factors as
the nature of the official’s duties, the extent to which the acts
involve policymaking or the exercise of professional expertise
and judgment, and the likely consequences of withholding
immunity.

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Hansen, 1998 SD 109, ¶23, 584 NW2d at 886 (citations omitted) (emphasis in

original). We have consistently held that a determination of sovereign immunity

and whether the governmental duty was discretionary is a question of law for the

courts. See supra ¶10. To place such an issue in the hands of the jury is a de facto

judicial repeal of sovereign immunity and relegates the matter to a jury question of

negligence. Instead of a single standard concerning the application of sovereign

immunity, as is cited in the cases above from Ruth in 1896 onward, such a repeal

would lead to each of our State’s 66 counties having its own standard for sovereign

immunity, set not by the Legislature, but by a local county jury.

[¶35.] Even if Truman’s evidence did raise what he argues are factual issues,

this evidence would not create a question for the jury. “The existence of a duty in a

negligence action is a question of law. . . .” Kirlin v. Halverson, 2008 SD 107, ¶10,

758 NW2d 436, 444 (quoting Hohm v. City of Rapid City, 2008 SD 65, ¶3, 753 NW2d

895, 898 (citing State Auto Ins. Cos. v. B.N.C., 2005 SD 89, ¶20, 702 NW2d 379,

386)). The doctrine is the same when a motorist sues a governmental entity over

the conditions of highways under its jurisdiction. Fritz, 1997 SD 122, ¶8, 570 NW2d

at 242. When the defendant is a government actor, however, sovereign immunity

analysis requires a further classification of the defendant’s duty. The trial court

must classify the defendant’s duty as either discretionary or ministerial. This is a

legal determination. See supra ¶10. Therefore, the factual circumstances that

inform the trial court’s classification are part of the trial court’s duty analysis. The

factual circumstances are only applicable to the legal questions of the existence or

classification of a government actor’s duty; they are not relevant to the jury’s domain

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#24707

in deciding issues of breach, causation, and damages. Therefore, consideration of

these circumstances does not diminish the jury’s role. Truman’s argument is

incorrect. The evidence he presents does not automatically create a question for the

jury or preclude summary judgment.

[¶36.] Truman also suggests that the trial court erred because his evidence

establishes that Griese’s duties are ministerial. After considering the evidence

presented, we disagree. One of Truman’s experts believes that the curve on U.S. 14

was constructed “to allow free flow of traffic along U.S. 14 from east west to north

south.” Further, “the curve [was] installed to provide a high speed transition for the

major road[, U.S. 14].” The MUTCD designs offered by Truman do not show or

contain this traffic design or this type of interchange. 14

14. If SDCL 31-28-6 were interpreted to require the government actor to apply
standardized diagrams to non-standard intersections, he or she would be
forced to use his or her skill and judgment to alter the designs to the traffic
scenario presented at Four Corners. Such an adaptation, essentially, would
be an exercise of his or her discretion.

Moreover, the MUTCD signage designs do not require direct adherence.
Instead, MUTCD defers to engineering judgment and studies when making
sign placement decisions. Therefore, the MUTCD requires the engineer to
exercise his or her discretion and expertise.

Section 2A.03 – Standardization of Application provides:
...
Guidance: Signs should be used only where justified by
engineering judgment or studies, as noted in Section 1A.09.
Results from traffic engineering studies of physical and traffic
factors should indicate the locations where signs are deemed
necessary or desirable. . . .

(Emphasis added.)

Section 2B.05 STOP Sign Applications provides:
(continued . . .)
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#24707

[¶37.] One diagram presented by Truman, the “acute angle intersection,”

focuses solely on the geometry of the U.S. 14/S.D. 63 junction. This design shows a

stop sign at the end of the U.S. 14, contrary to the curve’s “free flow” traffic

design. 15 This narrowed focus on one part of Four Corners’s geometry neglects the

multiple traffic factors presented, and portrays a totally different traffic scenario

and design. The diagram’s “acute angle,” or “sharp turn” as Truman argues, is a

________________________
(. . . continued)
Guidance: STOP signs should be used if engineering judgment
indicates that one or more of the following conditions exist. . . .

(Emphasis added.)

Section 2B.08 YIELD Sign Applications provides:
Option: YIELD signs may be used instead of STOP signs if
engineering judgment indicates that one or more of the following
conditions exist. . .
D. An intersection where a special problem exists and
where engineering judgment indicates the problem to
be susceptible to correction by the use of the YIELD
sign.

(Emphasis added.).

15. Truman suggests that traffic on U.S. 14 makes a left-hand turn
onto S.D. 16/U.S. 14. This is not accurate. The curve creates a continuous
path for U.S. 14 throughout the transition. No turn is required. This
diagram does not represent the same traffic or geometric design; it is not the
“exact same design.” See infra ¶69. Truman’s expert suggests that the
continuous “free flow” of traffic on U.S. 14 was part of the planned design
when the curve was installed decades ago. The curve was installed so that
traffic on U.S. 14 did not have to proceed to the “T” intersection, stop moving,
and then turn to continue. Quite simply, Truman and the dissent suggest
returning to a traffic design similar to that which existed before the curve
was installed; traffic on U.S. 14 (the “major road”) stops before proceeding. In
essence, they suggest that the implementation of a “free flow” traffic design
on U.S. 14 is problematic. Their positions, therefore, directly challenge the
roadway’s initial engineering and design. The initial design is protected by
sovereign immunity. See supra ¶13.

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#24707

right-hand turn from the angled street onto the horizontal street. However, traffic

on U.S. 14 does not make a right-hand “sharp turn” onto S.D. 63. Drivers

approaching Four Corners from U.S. 14/S.D.34 who want to reach S.D. 63’s

continued path proceed straight on S.D. 34 to the “T” intersection where S.D. 63 and

34 merge. This “acute angle” diagram does not depict the traffic design of Four

Corners. Therefore, this diagram is inapplicable.

[¶38.] Similarly, the “channelized intersection” diagram differs in its basic

traffic design. The curve of the channelized intersection is a one-way, right-hand

turning lane. This design does not permit traffic to travel in both directions on the

curve, as evident by the absence of a centerline. Furthermore, the signs depicted in

the diagram would not have been visible or applicable to either Truman or Griese,

given their directions of travel. This design is also inapplicable.

[¶39.] Truman presents a number of witnesses’ deposition testimony,

including the Stanley County Sheriff, to suggest the existence of a “blind crossing”

or a “point of danger.” None of this testimony is relevant to the question of

sovereign immunity. Truman and his witnesses provide no statutory definition for

what constitutes a “blind crossing” or “point of danger” 16 under any “standard

uniform traffic control practice” that would give rise to a ministerial duty. See

SDCL 31-28-6.

16. Although we do not reach the factual issues in this case, the record
indicates the following information: the accident rate at Four Corners is 1.08
per million users; the statewide average accident rate during this time period
was 2.0 per million users; the 2.0 figure is also used by the DOT as a
threshold to justify the spending of Road Safety Improvement funds.

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#24707

[¶40.] Considering the chain of implications that results from Truman’s

argument, a logical inconsistency becomes apparent. If the duty in SDCL 31-28-6 is

ministerial, then it is not protected by sovereign immunity. If the duty is not

protected by sovereign immunity, then a jury must determine what “standard

uniform traffic control practices” are. If the jury must determine what “standard . .

. practices” are, then these “standard . . . practices” are subject to interpretation. If

“standard . . . practices” are subject to interpretation, then they are not “absolute,

certain and imperative.” See supra ¶21. If they are not “absolute, certain and

imperative,” then they do not fit our definition of “ministerial.”17 If they do not fit

our definition of “ministerial,” then they are “discretionary.” If they are

“discretionary,” then they are protected by sovereign immunity.

[¶41.] As a matter of law, absent the “standard uniform traffic control

practices” required by SDCL 31-28-6, the MUTCD designs and the deposition

testimony do not establish a ministerial duty. Truman presents no issues of fact

relevant to sovereign immunity. The trial court correctly concluded that Griese’s

duties were discretionary.

CONCLUSION

[¶42.] One can only imagine the reaction of an average citizen if he or she,

per our analysis in Hansen and Wulf, were “plucked off the street” and informed it

was now his or her legal duty to place “substantial and conspicuous warning signs”

at any “sharp turn, blind crossing or other point of danger” as defined by “standard

17. This Court’s definition of ministerial acts is presented at ¶¶19-22 supra.

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#24707

uniform traffic control practices” on every highway in this state. See supra ¶22.

How much stronger would their reaction be when they realize that the failure to

place a sign in every conceivable place would result in their being subjected to suit

and criminal charge 18 simply based on a plaintiff’s pleading disagreeing with the

initial placement decision, and a jury being allowed to “Monday morning

quarterback” his or her conclusions about what is a “sharp turn, blind crossing or

other point of danger,” even if he or she somehow followed “standard uniform traffic

control practices?” There is a reason that the duty to select appropriate places for

warning signs was entrusted to defendant Griese, who happens to be the Pierre

Region Traffic Engineer of the South Dakota Department of Transportation. Given

the thousands of miles of highways in this state that run over all kinds of terrain,

such an undertaking is not a ministerial task for amateurs; it calls for a person with

professional training to exercise professional discretion in the performance of his or

her duties under SDCL 31-28-6.

[¶43.] SDCL 31-28-6 requires appropriate warning signs in places where

“standard uniform traffic control practices” indicate or where the exercise of the

engineer’s discretion determines a “sharp turn, blind crossing or other point of

danger” exists. Thus, there are basically three options when one looks at SDCL 31-

28-6: signs everywhere, signs nowhere, or signs at some points placed there by the

exercise of the collective discretion of experts as expressed in uniform standards and

the individual discretion of experts in non-standardized situations. Under our

18. Violation of SDCL 31-28-6 is a class one misdemeanor.

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#24707

settled law, absent applicable uniform standards, the individual expert’s decisions

are protected by sovereign immunity until the Legislature decides otherwise.

[¶44.] The serious consequences of this accident are tragic. Yet, sovereign

immunity precludes this action against these defendants. For the above reasons,

we affirm.

[¶45.] KONENKAMP and ZINTER, Justices, concur.

[¶46.] MEIERHENRY, Justice and SABERS, Retired Justice, dissent.

SABERS, Retired Justice (dissenting).

[¶47.] I respectfully dissent. Griese argues and the trial court declared that

summary judgment was appropriate because “the duty under [SDCL] 31-28-6 is a

discretionary duty and therefore . . . sovereign immunity applies.” I disagree. In

fact, I believe that when certain factual circumstances exist, 19 the duty mandated

by SDCL 31-28-6 is ministerial. Additionally, there are at least eight reasons why

summary judgment should not have been granted by the trial court and affirmed by

the majority of this Court in this case.

19. In footnote 4, the majority claims Truman “presents the issue as [ ] all-
encompassing[: ] ‘regardless of the facts of any particular case.’” Supra ¶8
n4. Truman’s statement is taken out of context as he states the issue as
follows: “Whether all claims for violation of the mandatory duty imposed by
SDCL § 31-28-6 are barred under the doctrine of sovereign immunity,
regardless of the facts of any particular case . . . .” Clearly, Truman is not
arguing that sovereign immunity should apply or not apply “regardless of the
facts of any particular case” as implied by the majority. Rather, Truman is
cautioning this Court to consider the far-reaching implications of its decision.

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#24707

Sovereign Immunity & the PEPL Fund

[¶48.] “Sovereign immunity is the right of public entities to be free from

liability for tort claims unless waived by legislative enactment.” Public Entity Pool

for Liability v. Score, 2003 SD 17, ¶7 n3, 658 NW2d 64, 67 n3 (citing Alden v.

Maine, 527 US 706, 715, 119 SCt 2240, 2247, 144 LEd2d 636 (1999) (citations

omitted)). Specifically, the South Dakota Constitution, Article III, section 27

proclaims: “The Legislature shall direct by law in what manner and in what courts

suits may be brought against the state.” “Therefore, in the absence of legislative

enactment the state is immune from liability in tort.” Bego v. Gordon, 407 NW2d

801, 804 (SD 1987). To that end, our Legislature has defined the conditions for the

waiver of sovereign immunity in SDCL 21-32A-1, which states:

To the extent that any public entity, other than the state,
participates in a risk sharing pool or purchases liability
insurance and to the extent that coverage is afforded
thereunder, the public entity shall be deemed to have waived the
common law doctrine of sovereign immunity and shall be deemed
to have consented to suit in the same manner that any other
party may be sued. . . .

(Emphasis added.)

[¶49.] SDCL ch. 3-22 sets forth the laws governing this state’s public entity

pool for liability (PEPL) fund. The first section, in part, sets forth the fund’s

coverage:

The purpose of this program is to provide a fund as the sole
source for payment of valid tort claims against all member
public entities of the state and their officers and employees for
all liability they may incur based upon negligence in the
operation of motor vehicles or negligence in performing other
acts within an employee’s scope of employment . . . .

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#24707

SDCL 3-22-1 (emphasis added). The breadth of coverage is notable. However, the

statute continues:

Excluded from coverage under this chapter are claims involving
employee grievances and awards for back pay, workers’
compensation, employee health programs, single point-source
pollution damage, asbestos related injuries, and claims arising
from engineering and design of any public roadway in this state
by any employee of any entity.

Id. Additionally, the PEPL Fund Memorandum (memo) includes nearly all the

exclusions listed in the statute and significantly expands the list. 20 Remarkably,

20. It states, in pertinent part:
This Memorandum does not extend coverage or apply to any
liability:
1. Assumed under contract, except this exclusion shall not
apply to rental car contracts entered into by employees or to
contracts specifically added by endorsement hereto;
2. Arising out of the ownership, maintenance or use of any
aircraft except this exclusion shall not apply to the extent
PEPL purchases insurance for such purposes;
3. Due to declared or undeclared war, riot, a concerted act of
civil disobedience and similar occurrences or acts or
conditions incident thereto. However this exclusion does not
apply to liability arising from actions taken to protect
persons or property;
4. Under workers’ compensation, disability benefits,
unemployment compensation or similar laws;
5. For bodily injury to an employee arising out of and in the
course of employment by the State;
6. For injury to the spouse, child, parent, brother, or sister of
the employee in 5, above, as a consequence of the bodily
injury to that employee;
7. Arising out of the actual, alleged, or threatened discharge,
release or escape of pollutants;
8. Resulting from or contributed to in any manner by the
hazardous properties of nuclear material;
9. For injuries resulting from or contributed to in any manner
by the presence of asbestos;
(continued . . .)
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#24707

________________________
(. . . continued)
10. Arising from or contributed to in any manner by acts, errors
or omissions in the engineering or design of any public
roadway or public transportation project;
11. For back pay and benefits and any costs relating to
reinstatement of an employee, except this exclusion does not
apply to any damages which may be awarded to an employee
under any federal law or as a result of violations of an
employee’s rights as guaranteed by the United States
Constitution;
12. For employee grievances, actions and awards, except this
exclusion does not apply to any damages which may be
awarded to an employee under any federal law or as a result
of violations of an employee’s rights as guaranteed by the
United States Constitution;
13. For fines, penalties, punitive damages or exemplary
damages;
14. For failure to perform, or breach of, a contractual obligation;
15. Arising out of providing or the failure to provide medical
professional services by employees of the University of South
Dakota School of Medicine, except this exclusion shall not
apply to employees of the University of South Dakota School
of Medicine’s Division of Health Sciences;
16. For damages that are a result of a discretionary act or task.
This exclusion does not apply if the damages are the result of
a ministerial act or task;
17. To the extent the occurrence is covered by any valid and
collectible liability insurance, except this exclusion shall not
apply to liability insurance of the employee that protects the
employee while driving a State owned or leased vehicle;
18. For damages measured by contract, as set forth in SDCL ch.
21-2;
19. For damages to property owned by the State;
20. Arising out of the ownership, operation, engineering or
design of any airport, landing strip or similar facility.
However, this exclusion shall not apply to state-owned
hangars in the cities of Brookings, Vermillion, and Pierre,
South Dakota;
21. For refund of taxes, fees and assessments;
22. For claims where notice was not given by the claimant within
180 days after the injury or as required by SDCL ch. 3-21;
23. Arising out of the employee obtaining remuneration or
financial gain to which the employee was not legally entitled;
24. Arising from collecting or attempting to collect taxes;
(continued . . .)

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#24707

the statute and the memo exclude very specific claims, including “claims arising

from engineering and design of any public roadway[.]” However, neither the statute

nor the memo excludes liability for the claim here: failure to erect and maintain

substantial and conspicuous warning signs on roadways approaching sharp turns,

blind crossings, or other points of danger. Instead, we are left with the following

potentially applicable exclusion: “16. For damages that are a result of a

discretionary act or task. This exclusion does not apply if the damages are the

result of a ministerial act or task[.]” Therefore, when state employees are covered

under the PEPL fund, sovereign immunity is waived, to the extent of coverage, for

damages resulting from that employee’s failure to perform a ministerial duty, but it

is not waived for liability resulting from failure to perform a discretionary duty.

________________________
(. . . continued)
25. Arising from providing or attempting to provide emergency
disaster relief services pursuant to SDCL ch. 33-15;
26. Arising from activities or facilities of the South Dakota
Building Authority or its employees;
27. Arising from activities or facilities of the South Dakota
Health and Educational Facilities Authority or its employees;
28. Arising from activities or facilities of the South Dakota
Housing Development Authority or its employees except this
exclusion shall not apply to the South Dakota Housing
Development Authority, its commissioners, officers and
employees, with respect to liability arising from the
construction of residential and other structures under the
Governor’s House and Daycare Building Project at Mike
Durfee State Prison in Springfield, South Dakota;
29. Arising from activities or facilities of the South Dakota
Science and Technology Authority;
30. Arising out of the employee’s willful and wanton misconduct.

PEPL Memorandum of Liability Coverage to the Employees of the State of
South Dakota 13-15. The specificity of several of the exclusions is notable.

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#24707

[¶50.] If the Legislature wanted to provide immunity for failing to erect and

maintain signage, it could have simply removed the act from the broad coverage of

the statute. It chose not to do so. Instead, this Court is left to determine whether

the act is discretionary or ministerial.

Sovereign Immunity: Discretionary vs. Ministerial

[¶51.] A dichotomy exists: ministerial or mandatory acts are provided no

immunity, while discretionary acts are immunized. The difficulty arises in

distinguishing the discretionary acts from those that are ministerial. South Dakota

case law has identified factors helpful in drawing this distinction. These factors

include:

(1) The nature and importance of the function the officer is
performing;

(2) The extent to which passing judgment on the exercise of
discretion by the officer will amount necessarily to passing
judgment by the court on the conduct of a coordinate branch of
government;

(3) The extent to which the imposition of liability would impair
the free exercise of his discretion by the officer;

(4) The extent to which the ultimate financial responsibility will
fall on the officer;

(5) The likelihood that harm will result to members of the public
if the action is taken;

(6) The nature and seriousness of the type of harm that may be
produced;

(7) The availability to the injured party of other remedies and
other forms of relief.

King v. Landguth, 2007 SD 2, ¶11, 726 NW2d 603, 607 (citations omitted). Upon

applying these factors to this case, it is important to recognize that liability will not

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#24707

fall upon the officer exercising his duty, the likelihood of harm to the public is great,

and the nature and seriousness of the harm is extremely grave. Moreover, passing

judgment on the officer’s discretion will not be passing judgment upon a separate

branch of government and there is no real availability of relief to the injured

parties. Therefore, these factors favor the conclusion that the act at issue was

ministerial, not discretionary.

Statutory Interpretation & Genuine Issues of Material Fact

[¶52.] Due to the language of SDCL 31-28-6, however, the

ministerial/discretionary analysis is not even necessary. The statute provides:

The public board or officer whose duty it is to repair or maintain
any public highway shall erect and maintain at points in
conformity with standard uniform traffic control practices on
each side of any sharp turn, blind crossing, or other point of
danger on such highway . . . a substantial and conspicuous
warning sign, which sign shall be on the right-hand side of the
highway approaching such point of danger. A violation of this
section is a Class 1 misdemeanor.

SDCL 31-28-6 (emphasis added). This Court has previously recognized the

distinction between creating governmental policy and merely implementing the

same. See King, 2007 SD 2, ¶11, 726 NW2d at 607 (noting that sovereign immunity

extends to employee’s discretionary acts because “‘such discretionary acts

participate in the state’s sovereign policy-making power’” (quoting Kyllo v. Panzer,

535 NW2d 896, 902 (SD 1995) (emphasis added))); Wulf v. Senst, 2003 SD 105, ¶20,

669 NW2d 135, 143) (“a ministerial act is the simple carrying out of a policy already

established” (internal citations omitted)); Nat’l Bank of S.D. v. Leir, 325 NW2d 845,

850 (SD 1982) (“Although some discretion in its literal sense is involved in foster

care, social workers do not make policy decisions involving foster care placement.

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#24707

The criteria for placement . . . [is] already established. Social workers are merely

required to carry out or administer these previously established standards.”).

[¶53.] Here, however, by using the word “shall,” the statute sets forth a

mandatory duty: signs shall be erected when a sharp turn, blind crossing or other

point of danger exists. “Shall” is a mandatory directive. Fritz v. Howard Twp.,

1997 SD 122, ¶15, 570 NW2d 240, 242 (“When ‘shall’ is the operative verb in a

statute, it is given ‘obligatory or mandatory’ meaning.”). In a recent opinion

authored by Chief Justice Gilbertson, this Court unanimously declared that the

word “shall” directs mandatory action, leaving no room for discretion. We stated,

“The statutory definition of ‘shall’ . . . ‘manifests a mandatory directive and does not

confer any discretion in carrying out the action so directed.’” 2008 SD 111, ¶21, 757

NW2d 756, 762 (quoting SDCL 2-14-2.1) (emphasis added). There is a distinction

between policy making discretion and operational judgment. The defendants were

not creating policy. This statute does not require an exercise of discretion. Rather,

the employees were only required to make a factual judgment regarding the

conditions of the road. This is the only interpretation consistent with the plain

language of the statute, and which preserves legislative intent. Obviously, the

Legislature intended South Dakota travelers to be protected from and warned about

these points of danger, blind crossings, and sharp turns.

[¶54.] Curiously, the majority opinion, also penned by Chief Justice

Gilbertson, claims that the duties set forth in SDCL 31-28-6 under the directive of

the word “shall,” are in fact discretionary duties, rather than mandatory. With all

due respect, it is preposterous to attach opposite definitions to the same word just to

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achieve a certain result. If we interpret SDCL 31-28-6 to be entirely discretionary,

as the majority purports to do, the employees could ALWAYS avoid liability by

simply and arbitrarily saying the intersection was not a point of danger, blind

crossing, or sharp turn, despite compelling evidence to the contrary. To interpret

SDCL 31-28-6 in this manner would render useless the mandatory directive “shall.”

Moreover, that interpretation “is precisely the kind of absurd result we have always

said our statutory interpretation should avoid.” Dep’t of Social Services ex rel.

Wright v. Byer, 2004 SD 41, ¶17, 678 NW2d 586, 590-91. If the Legislature

intended the duties to be discretionary, it would have chosen more appropriate

statutory language.

[¶55.] Rather, in accordance with the mandatory directive, the defendants

had no discretion in deciding whether to erect and maintain the appropriate signage

if there was any sharp turn, blind crossing, or other point of danger. If any of these

conditions existed, the defendants were required to follow the law and construct the

signs. Truman claims that the Four Corners intersection qualifies as a sharp turn,

a blind crossing, 21 and a point of danger. Conversely, Griese claims that this

intersection does not meet any of those three characterizations. Importantly,

whether one or more of these conditions in fact existed raises a genuine issue of

material fact as to each condition. Such a determination should be decided by a

jury. Under these circumstances, summary judgment should not have been granted

or affirmed.

21. The record contains pictures and testimony indicating this Y configuration
qualifies as a “blind crossing.” See Attachment 2.

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#24707

[¶56.] Griese impliedly makes the alternative argument that even if the Four

Corners intersection can be characterized as a sharp turn, blind crossing, or other

point of danger, the statutory duty was met because the double yellow line in the

center of U.S. 14 indicates that northbound traffic on U.S. 14 must yield to incoming

traffic from S.D. 34. Griese claims this double yellow line was sufficient to

adequately warn of the danger. The double yellow line raises at least three genuine

issues of material fact: 22 (1) whether a double yellow line is a substantial and

conspicuous warning sign to the driver that he is required to yield to oncoming

traffic before proceeding across that lane of traffic; (2) whether the double yellow

line is “on the right-hand side of [each side of] the highway approaching such point

of danger[;]” and (3) whether a double yellow line conforms to the standard uniform

traffic control practices, for which South Dakota adopted the Manual on Uniform

Traffic Control Devices (MUTCD) in the South Dakota Local Government Roads

Signing Reference (SDLGRSR). 23

[¶57.] Section 2B of the MUTCD states that “regulatory signs shall be used to

inform road users of selected traffic law or regulations and indicate the applicability

22. I fail to understand how the majority can deny there are genuine issues of
material facts as to whether the officer “erect[ed] and maintain[ed] . . .
substantial and conspicuous warning sign[s] on the right-hand side” of “each
side of any sharp turn, blind crossing, or other point of danger[,]” and
specifically, whether the double yellow line meets these statutory
requirements.

23. The Foreword to the SDLGRSR states: “this publication is made up
primarily of excerpts taken from sections or parts of the Manual on Uniform
Traffic Control Devices, 2003 Edition.” No differences between the two
sources were found with regard to the sections pertinent to this case;
therefore, references will be made only to the MUTCD to prevent confusion.

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#24707

of the legal requirements.” MUTCD 2B.01, Application of Regulatory Signs

(Plaintiff’s Exhibit 6). If Griese and the DOT expected the double yellow line to

serve as an indicator that north-bound traffic was to yield, and not just that passing

was prohibited on this stretch of road,24 then a regulatory sign may be mandatory

under this section.

[¶58.] Each of these points raises genuine issues of material facts as to

whether the double yellow line meets both the plain language of SDCL 31-28-6 and

the requirements of the MUTCD section 2B.01. These are issues that should be

decided by a jury. See Fritz, 1997 SD 122, ¶16, 570 NW2d at 243. In this regard,

the grant of summary judgment was again inappropriate.

[¶59.] Lastly and importantly, the Legislature made violation of this statute

a Class 1 misdemeanor. If, as the majority holds, SDCL 31-28-6 provides the

highway officer discretion to erect and maintain a substantial and conspicuous

warning sign, then why did the South Dakota Legislature make it a crime to violate

the statute? The answer is simple: the duties are not discretionary. Criminalizing

discretionary duties defies common sense. This is a fatal defect to the majority’s

reasoning. Understandably, the Legislature wants its citizens safe from perilous

highway conditions that may be known to the highway department, but unknown to

the drivers of the road. Griese had a duty to abide by the statute under certain

circumstances, and failure to do so would be a Class 1 misdemeanor.

24. The MUTCD explains a double yellow line “indicates that passing is
prohibited in both directions on an undivided road or highway.” Manual on
Uniform Traffic Control Devices, available at www.mutcd.fhwa.dot.gov
(accessed on April 8, 2008).

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Case Law

[¶60.] South Dakota case law supports the determination that summary

judgment was improper here. In Hansen v. South Dakota Department of

Transportation, 1998 SD 109, 584 NW2d 881, the plaintiff suffered bodily injury

when her right front car wheel dropped into a hole that a construction crew created

on a bridge on Interstate 29. Hansen appealed the trial court’s decision to grant the

defendant’s motion to dismiss based on sovereign immunity. In affirming the lower

court, this Court noted that when a decision cannot be measured against a

predictable standard of care then the task is discretionary, thus invoking sovereign

immunity. Id. ¶23 (quoting 57 AmJur2d Municipal, County, School & State Tort

Liability § 120, at 132-33 (1988)). Based on this holding, Griese claims that Hansen

awards the governmental entity sovereign immunity under any set of facts. That

conclusion is incorrect.

[¶61.] Griese and the majority opinion fail to acknowledge that in Hansen, we

observed that “‘[w]here . . . a standard of care may be defined and applied with

relative ease, the public servant is not similarly deterred and the public interest in

the protection of the official weakens.’” Id. ¶31 (quoting DuBree v. Commonwealth,

393 A2d 293, 295 (Pa 1978)) (emphasis added). The standard may be “written or

the product of experience,” id. ¶23, and other jurisdictions have noted that if the

MUTCD mandates the traffic control device, it is not discretionary. Id. ¶31 (quoting

Patton v. City of Cleveland, 641 NE2d 1126, 1130 (OhioCtApp 1994)). Both SDCL

31-28-6 and the MUTCD dictate the governing standards for erecting and

maintaining roadway signage, and the officer simply needs to make a factual

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determination of whether the statutory conditions exist, thereby requiring him to

carry out his statutory duties. Importantly, Hansen did not declare that a violation

of SDCL 31-28-6 is always discretionary. In fact, the result in Hansen may well

have been different had the defendant who was sued in Hansen been the manager

of the road repair crew, instead of the Secretary of Transportation and Director of

Highways in charge of over 1,300 employees and a budget of nearly $270,000,000 in

1994. See id. ¶22. Obviously, as the Secretary of Transportation and Director of

Highways, his duties were generally discretionary and he was not the manager of

the road crew. The instant case, however, involves the DOT Pierre Region Traffic

Engineer and DOT employees – the precise people charged with carrying out this

statutory duty.

[¶62.] Even if the duties set forth in SDCL 31-28-6 were discretionary, a fact

which I do not concede, summary judgment is improper if there are genuine issues

of material fact. To support this proposition, Truman cites several cases. In

particular, he claims Wulf, 2003 SD 105, 669 NW2d 135; Kyllo, 535 NW2d 896;

National Bank of South Dakota, 325 NW2d 845; and Bego, 407 NW2d 801, support

his argument.

[¶63.] In Wulf, 2003 SD 105, ¶4, 669 NW2d at 138, the DOT contracted out

its winter road maintenance duties to Preheim Lawn and Landscape, Inc. The DOT

had established a winter safe highway maintenance plan for snow removal, sanding

and deicing as required by SDCL 31-5-8.3. In particular, the sanding policy

required the use of a specified sand/salt/chemical mixture and to commence sanding

at “5:00 a.m. [and continue] until 7:00 p.m. . . . unless (1) the traffic is moving safely

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#24707

or (2) conditions become too hazardous for continued operations.” Id. ¶31. While

the trial court granted summary judgment because “the decision to stop plowing

and sanding due to its ineffectiveness was a judgment call,” this Court held that the

trial court’s grant of summary judgment was improper because there were disputed

issues of material facts regarding the effectiveness of sanding, whether the traffic

was moving safely, and whether the proper sand/salt/chemical mixture was used.

Id.

[¶64.] The concurrence in part and dissent in part in Wulf noted that “[t]he

distinction between creating and implementing government policy should not be

ignored when determining whether sovereign immunity applies.” Id. ¶43 (Sabers,

J., concurring in part and dissenting in part). “Creating governmental policy

requires discretion and is entitled to sovereign immunity protection. Implementing

governmental policy is ministerial and is not entitled to sovereign immunity

protection.” Id. (emphasis in original); see also id. ¶32 (majority opinion) (“‘[O]nce it

is determined that the act should be performed, subsequent duties may be

considered ministerial.’” (quoting Hansen, 1998 SD 109, ¶23, 584 NW2d at 886)).

Furthermore, the concurrence/dissent in part noted that “[a]lthough [the

defendants] had some discretion as to how and when to perform their duties, that

discretion did not rise to the level of creating policy or shield them from liability for

negligence, if proven.” Id. ¶53 (emphasis in original). See also cases cited in ¶52,

supra; Elton v. County of Orange, 3 CalApp3d 1053, 1058, 84 CalRptr 27, 30 (1970)

(decisions regarding foster children “may entail the exercise of discretion in a literal

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sense, but such determinations do not achieve the level of basic policy decisions, and

thus do not [warrant immunity]”).

[¶65.] This case is similar to Wulf. There, the DOT policy mandated the

roads be sanded from 5 a.m. to 7 p.m. unless certain factual circumstances existed.

Here, the Legislature mandated that warning signs be erected and maintained if

certain factual circumstances existed. In Wulf, we determined that whether those

certain factual circumstances existed created a genuine issue of material fact to be

decided by the jury. Here, whether certain factual circumstances exist similarly

creates genuine issues of material facts to be decided by the jury. Summary

judgment was improper in Wulf, and therefore is similarly improper here.

[¶66.] Likewise, Kyllo, 535 NW2d at 903, Leir, 325 NW2d at 848, and Bego,

407 NW2d at 805, all reaffirmed the principle that state employees should be held

liable for negligently performing ministerial acts. These cases imply that a jury

trial should be afforded so the employee’s liability, if any, can be determined.

[¶67.] Furthermore, we presume the Legislature is aware of two of our cases,

Fritz, 1997 SD 122, 570 NW2d 240, and Braun v. New Hope Township, 2002 SD 67,

646 NW2d 737, where sovereign immunity was waived for violations of SDCL 31-

28-6. Specifically, in Braun, we noted that “SDCL 31-28-6 requires townships to

erect ‘substantial and conspicuous warning sign[s]’ on the right-hand side of the

highway for ‘point[s] of danger.’” 2002 SD 67, ¶17, 646 NW2d at 741 (emphasis

added). This is hardly the type of language that leads one to the result that SDCL

31-28-6 relieves an actor of liability for failure to erect a sign.

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[¶68.] The majority’s conclusion in this case directly conflicts with our recent

cases of Bickner v. Raymond Township, 2008 SD 27, 747 NW2d 668, and King, 2007

SD 2, 726 NW2d 603. In Bickner, summary judgment was affirmed in part because

“Bickner cite[d] no provision in the MUTCD that specifically requires a township to

erect a warning sign in these circumstances.” 2008 SD 27, ¶14, 747 NW2d at 672

(citation omitted). Here, Truman claims that the curve is an “acute angle curve.”

MUTCD has “designated the ‘acute angle intersection’ as one of its typical examples

for placement of warning signs at intersections.” Importantly, Bickner did not

declare that the governmental entity is always immune from liability under any

factual circumstances. Likewise, in King, summary judgment was affirmed because

the plain language of the MUTCD provision only required a single sign to be placed

at the culvert, not two double sided signs as advocated by the plaintiff. 2007 SD 2,

¶¶19-21, 726 NW2d at 609-10. Therefore, these cases are distinguishable from the

case before us.

[¶69.] MUTCD Figure 2A-2 depicts an acute angle intersection. This figure

and the accident site have the exact same design. Compare Attachment 3 with

Attachment 1 (depiction of accident site at the merging of U.S. 14 and S.D. 63). See

also Attachment 2. The majority opinion is mistaken in its determination that the

figure differs from the accident site because the figure shows a stop sign whereas

the U.S. 14/S.D. 63 junction is a “free flow” traffic design with no stop sign. 25 That

25. The “free flow” traffic design of this roadway, allowing for a vehicle in one
lane of traffic to cross another lane of oncoming traffic, with no stop sign or
signage whatsoever to alert either driver, only accentuates the dangerousness
of this roadway.

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#24707

is Truman’s point: the acute angle intersection is a road design for which the

MUTCD designates proper placement for a stop sign. Because the U.S. 14/S.D. 63

junction lacked a stop sign, it failed to conform to the MUTCD’s specifications.

Further, the majority’s statement that the two designs are different because “traffic

on U.S. 14 does not make a right-hand ‘sharp turn’ onto S.D. 63” is without merit.

A driver on U.S. 14 could just as easily make a right-hand sharp turn onto S.D. 63,

as could be done at the acute angle intersection depicted in Figure 2A-2 of the

MUTCD. 26 The geometrical and traffic designs of the accident site are the exact

same as depicted in the figure. Therefore, Griese violated his statutory duty by not

“erect[ing] and maintain[ing] at points in conformity with standard uniform traffic

control practices [MUTCD] . . . a substantial and conspicuous warning sign[.]” See

SDCL 31-28-6.

[¶70.] Truman also contends that the Four Corners intersection is a known

“point of danger.” He claims DOT traffic and safety engineer Cliff Reuer had

knowledge that the intersection contains two “points of conflict,” only one of which

is controlled by a stop sign. According to Reuer, crossing a lane of traffic is a point

of conflict. Truman’s expert Dave Daubert noted that “[t]hese . . . intersections have

been judged a problem for at least the past 40 years and need to be replaced or

signed to eliminate conflicting movements. . . . As long ago as 1954, manuals were

prepared indicating that Y intersections were a problem in regards to right-of-way

26. It is far less important for there to be a stop sign where a roadway allows for
a right-hand turn into a lane of traffic going in the same direction, than
where a roadway permits one to cross a lane of oncoming traffic, as in this
case.

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#24707

assignment.” 27 Stop signs, yield signs, other regulatory signs, or warning signs are

generally used to prevent accidents at potential “points of danger.” MUTCD section

2B.05 provides guidance as to when stop signs, for example, should be erected. 28

The existence of any of the conditions listed in section 2B.05, or any of the

applicable sections for other signs, creates genuine issues of material facts to be

decided by a jury. Thus, under these circumstances, summary judgment was

improper, and this Court should reverse.

[¶71.] Lastly, the Minnesota court of appeals case, Ostendorf v. Kenyon, 347

NW2d 834 (MinnCtApp 1984), provides guidance in this situation. In Ostendorf,

the victims collided on a stretch of highway that had three lanes: two west-bound

27. Daubert’s report stated:
The manual used for establishing the alignment of roadways
was developed by the American Association of State Highway
Officials (AASHO) (which SD has adopted, see King, 2007 SD 2,
¶15, 726 NW2d at 608) with the first full book form published
in 1954 as A Policy on Geometric Design of Rural Highways.
The type of intersection which is the subject of this collision is
described in the 1954 manual with recommendations on how to
improve the safety of the Y intersection. Even after the curve
for US 14 was constructed, the signing and markings could
have been installed to make the intersection safe.

28. Specifically, it states:
STOP signs should be used if engineering judgment indicates
that one or more of the following conditions exist:
A. Intersection of a less important road with a main road
where application of the normal right-of-way rule would
not be expected to provide reasonable compliance with the
law;
B. Street entering a through highway or street;
C. Unsignalized intersection in a signalized area; and/or
D. High speeds, restricted view, or crash records indicate a
need for control by the STOP sign.
MUTCD 2B.05 (2003).

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#24707

lanes separated from a single east-bound lane by double yellow lines. The traffic

signs on this highway, however, complied with MUTCD.

[¶72.] Ostendorfs sued the state alleging it failed to warn of the hazards of

this road through adequate signage. The lower court granted the State’s motion for

summary judgment on the defense of sovereign immunity. The Minnesota Court of

Appeals reversed the summary judgment noting that “[a] discretionary act is one

which requires a balancing of complex and competing factors at the planning,

rather than the operational, stage of development.” Id. at 837 (emphasis added).

Furthermore, the court noted that complying with the MUTCD is not enough.

Minnesota had a statute providing that the “commissioner may construct and

maintain other directional signs upon the trunk highways.” The court noted that,

according to the statute,

[T]he legislature apparently contemplated that at some point in
the operation and maintenance of a highway, it would become
apparent that additional signs were needed. That is the point
where the discretion in how to originally place warning signs is
exhausted and, as part of maintaining the highway, the State
has a duty to erect more or better signs.

Id. at 838 (emphasis added). Finally, the court noted that the plaintiff provided

evidence that the highway had a history of accidents and the state failed in its duty

to safely maintain the highway by not placing better or additional warning signs on

this stretch of road. The court found that the plaintiffs had, therefore, raised a

material issue of fact as to whether the state was negligent in not placing more or

better warning signs on the highway. Importantly, the court concluded:

The State’s placement of warning signs on the highway was not
a discretionary act after the State had knowledge of a dangerous
situation where warning could be provided by additional or

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better signs. Here the appellants raised an issue of material
fact as to whether the state was negligent in the maintenance of
its highway and summary judgment was not appropriate.

Id. Not only does the South Dakota statute create a duty to erect and maintain

warning signs under certain circumstances, but also, here, the state knew that this

stretch of highway created a dangerous driving transition. The record reflects a

similar accident occurred in the past, additional accidents have occurred at this

intersection and there have been several “terrifying ‘near misses.’” Stanley County

Sheriff Rathbun recalled that on occasion, people have come into his office to report

the “near misses.” Just as summary judgment was not appropriate in Ostendorf, it

was not appropriate in this case based on these additional facts.

CONCLUSION

[¶73.] In summary, there are at least eight reasons why summary judgment

should not have been granted by the trial court, and affirmed by the majority of this

Court:

1. The South Dakota Legislature enacted statutes authorizing the state to

obtain liability insurance and waive sovereign immunity “to the extent

of liability insurance coverage.” State employees are covered under the

PEPL fund and sovereign immunity is waived, to the extent of coverage,

for damages resulting from that employee’s failure to perform a

ministerial duty. Statutory interpretation leads me to conclude that the

duties set forth in SDCL 31-28-6 are ministerial, on more than one

account (i.e., “shall,” policymaking discretion vs. operational judgment,

and Class 1 misdemeanor classification).

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2. The Legislature has not removed this specific failure to act from

coverage under the PEPL fund; therefore, sovereign immunity is waived

for this situation.

3. The state waived sovereign immunity by violating a mandatory duty

imposed by SDCL 31-28-6 when it failed to erect and maintain

substantial and conspicuous signs at the Four Corners intersection.

4. There are genuine issues of material facts as to whether this roadway

constitutes a “sharp turn,” and whether a substantial and conspicuous

warning sign was placed on the right-hand side of each side of the

highway approaching such point of danger.

5. There are genuine issues of material facts as to whether this roadway

constitutes a “blind crossing,” and whether a substantial and

conspicuous warning sign was placed on the right-hand side of each side

of the highway approaching such point of danger.

6. There are genuine issues of material facts as to whether this roadway

constitutes any “other point of danger,” and whether a substantial and

conspicuous warning sign was placed on the right-hand side of each side

of the highway approaching such point of danger.

7. There are genuine issues of material facts as to whether the double

yellow line is a substantial and conspicuous warning sign to the driver

that he is required to yield to oncoming traffic before proceeding across

that lane of traffic, whether the double yellow line is on the right-hand

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side of each side of the highway approaching such point of danger, and

whether the double yellow line conforms to the MUTCD.

8. There are genuine issues of material facts as to whether crossing a lane

of traffic is a point of conflict, and whether the Four Corners intersection

meets the MUTCD signage requirements when such “intersections have

been judged a problem for at least the past 40 years and need to be

replaced or signed to eliminate conflicting movements.”

[¶74.] Common sense and South Dakota law directs that the highway officer

shall erect and maintain substantial and conspicuous warning signs under these

circumstances. To decide otherwise on summary judgment, as the majority does, is

a violation of both the United States and South Dakota Constitutions. See US

Const amend VII (“In [s]uits at common law, where the value in controversy shall

exceed twenty dollars, the right of trial by jury shall be preserved . . . .”); SD Const

art VI, sec 6 (“The right of trial by jury shall remain inviolate and shall extend to all

cases at law without regard to the amount in controversy . . . .”). By affirming the

trial court’s grant of summary judgment, this Court violates the plaintiff’s state and

federal constitutional rights to a jury trial, and undoubtedly, offends traditional

notions of justice.

[¶75.] In accordance with our standard of review, this Court is required to

view the facts in the light most favorable to the non-moving party. I disagree with

the majority and conclude that genuine issues of material facts exist, requiring a

reversal and remand for trial.

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[¶76.] Chief Justice Gilbertson concludes with the argument that “one can

only imagine the reaction of the average citizen if he or she” were “plucked off the

street” and required to perform the duties of the engineers of the State Highway

Department. I submit he is missing the whole point. The State Highway

Department has over a thousand employees who are educated, trained, and

equipped to do the jobs the Legislature has mandated them to do. Moreover, the

average citizen as a juror continually makes determinations on others’ competence,

skill, or lack thereof, or outright negligence.

[¶77.] In contrast, I submit that any right-thinking average citizen would be

“shocked” to be presented with the substantial injuries, damages, hospitalizations,

and the deaths of three people caused by the failure of this highway engineer to do

his duty as mandated by the South Dakota Legislature, and then to be told by the

majority of this Court that there is no remedy for these injuries and deaths, even

though caused by “the want of ordinary care or skill.” See SDCL 20-9-1. Equally

shocking to average South Dakota citizens may be the fact that the majority

declares “no remedy” without even providing the constitutional right to a jury trial.

[¶78.] Incredibly, under the majority’s view, the Highway Department could

arbitrarily, unreasonably, and capriciously design the busiest, most dangerous

intersection in South Dakota without stop signs or signage of any kind and never be

accountable, despite numerous injuries and deaths year after year.

[¶79.] Also incredible, under the majority’s view, the Highway Department

could arbitrarily, unreasonably, and capriciously design the busiest, most

dangerous intersection in South Dakota with inadequate signage or signage that

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goes out of repair, as here, and never be accountable, despite numerous injuries and

deaths year after year.

[¶80.] I am not suggesting a directed verdict on liability, but rather a reversal

and remand for a jury trial on the merits of this case in accordance with the state

and federal constitutions.

[¶81.] MEIERHENRY, Justice, joins this dissent.

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pierre sd - Google Maps Page 1 of 1

Address Pierre, S Dakota

http://maps.google.com/maps?f=q&hl=en&geocode=&q=pierre+sd&sll=37.0625,-95.677... 12/23/2008
Attachment 3

Figure 2A-2.