(concurring in part and dissenting in part).
[¶43.] Senst and Bultje do not create government policy, as their duties merely required them to implement the Department’s previously established policy. The distinction between creating and implementing government policy should not be ignored when determining whether sovereign immunity applies. 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. Therefore, Senst *149and Bultje should not be shielded from liability by sovereign immunity for their failure to inspect, maintain the roadway, plow and sand from 5-7 a.m., and require Preheim to maintain insurance.
[¶ 44.] This Court made the distinction between discretionary and ministerial acts clear in Ritter, where it stated:
The reason state employees are shielded from lawsuits by the state’s immunity when they perform discretionary acts within the scope of their authority is that such discretionary acts participate in the state’s sovereign policy-making power. In contrast, a ministerial act is simply carrying out of a policy already established[.]
Ritter v. Johnson, 465 N.W.2d 196, 198 (S.D.1991) (additional and internal citations omitted). The majority opinion states at ¶ 28, “[decisions made by Senst and Bultje as to how to allocate snow plow operators, resources and equipment, and how many workers to call in for any given winter storm event, how many trucks to put on the road at any given time, where on the highways to place those vehicles, and how much salt to use are all discretionary and subject to sovereign immunity.” The majority opinion goes on to state at ¶30 that “[tjhere were no clear standards as to when or how often Bultje was to inspect these roads and in particular Highway 42.” A review of the record indicates that the Department has created specifications regarding these issues and all that remained was for Senst and Bultje to implement those policies.
[¶ 45.] The contract between Preheim and the DOT provided specific equipment requirements, clear direction on the priority and time spent plowing each road, priority of roads for application of sanding and mixture rates for sanding. The contract also contained the requirement that Preheim maintain insurance.
[¶ 46.] Performance Standard # 2524 provided specifications for snow and ice control, giving requirements as to the priority of roads to be plowed, how often the roads are to be inspected, and the type of plows to be used and how they are to be used when plowing. This standard also requires that plowing be continued between 5 and 7 a.m.
[¶ 47.] Policy # 2531 details specific performance standards for sanding and salting and provides a table to show the sand and salt mixture to be used depending upon the temperature.
[¶ 48.] Policy # 13 provides “specifications for abrasive material and gradation of salt.”
[¶ 49.] Policy # 23 establishes the priority of routes for winter maintenance operations.
[¶ 50.] In a policy letter dated October 29, 1996, the Department provided guidelines for the reassignment of snow removal equipment during storms.
[¶ 51.] Policy #2531 and #13 allow the Region Engineer some discretion but this discretion was not extended to Bultje. More important, the duties neglected in this case remain predominantly ministerial. A ministerial act is always a ministerial act, even though it includes elements of discretion. For example, driving a car is a ministerial act, even though it involves discretion in choosing the lane, the route and the speed. Likewise, the Department has created policy regarding winter maintenance operations which leaves little room for discretion, particularly with regard to Bultje’s duties.
[¶ 52.] The fatal defect in the majority opinion is demonstrated by the following example:
Assume Bultje did absolutely nothing to inspect, absolutely nothing to plow snow *150and absolutely nothing to maintain the roadway despite a severe snowstorm lasting days.
The majority opinion would conclude that Bultje was not subject to liability because those three duties were discretionary. In fact, under a proper ruling, the jury should determine in each instance whether Bultje’s inaction constituted negligence, with liability for injuries and damages caused thereby.
[¶ 53.] Although Senst and Bultje 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. Their failure to inspect, plow snow, maintain the roadway, sand, start at 5 a.m. and to purchase insurance (or require the same of a sub-contractor)8 are and remain ministerial acts.
. The majority opinion is also fatally flawed in its statement that "[i]t is this DOT policy which establishes Senst and Bultje's responsibilities, not the contract between DOT and Preheim.” Majority opinion, ¶ 12. The statement presumes that the contract does not represent DOT policy which Senst and Bultje were responsible for enforcing. However, the contract between Preheim and the DOT was drawn by the DOT and presumably represents DOT policy. Senst and Bultje are the parties charged with supervising Preheim and enforcing the contract. Their failure to do so is a failure to enforce DOT policy (a ministerial duty) and they should be liable for that failure. Furthermore, if Senst and Bultje fail to enforce the contract, who will? Under the majority opinion, nobody is liable when the DOT fails to ensure its contractors are fulfilling their contract requirements. Again, a proper ruling would allow the jury to determine whether this failure constituted negligence.