(specially concurring).
I commend the South Dakota Legislature for their special efforts in struggling to provide adequate remedies for persons wrongfully injured. SDGL 21-32-17 and SDCL 21-32A-2. I also commend the majority for its lucid opinion which brightens this otherwise complex and murky area of the law. I concur with the majority’s holding that sovereign immunity shields the school board members, the superintendent, and the coaches from liability for tortious, discretionary1 acts done within the scope of their employment. However, I must part company at the point where the legislative acts would attempt to extend sovereign immunity to shield any person who happens to work for the state from individual liability for all tortious acts done within the scope of their employment.
A person is individually liable to another for wrongful ministerial acts. That liability continues despite the fact that the same individual’s liability for discretionary acts may be shielded by sovereign immunity.
In Bego v. Gordon, 407 N.W.2d 801, 805-806 (S.D.1987), we stated in part:
In Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D.1986), we considered the doctrine [of sovereign immunity] in conjunction with Article VI, § 20, the “open courts” provision of the South Dakota Constitution.2 Id. at 290. In Oien, we interpreted the “open courts” provision as “ ‘a guarantee that “for such wrongs as are recognized by the law of the land the courts shall be open and afford a remedy.” ’ ” Id., quoting Simons v. Kidd, 73 S.D. 41, 46, 38 N.W.2d 883, 886 (1949). We wrote:
That is to say, where a cause of action is implied or exists at common law without statutory abrogation, a plaintiff has a right to litigate and the courts will fashion a remedy.
Id.
The common law recognizes that merely being an agent or employee does not alter the duties otherwise owed to third parties. See, e.g., Kelly v. State, 265 Ark. 337, 578 S.W.2d 566 (1979); Montanick v. McMillin, 225 Iowa 442, 280 N.W. 608 (1938); E.H. Emery & Co. v. American Refrigerator Transit Co., 193 Iowa 93, 184 N.W. 750 (1921); Delaney v. Rochereau, 34 La.Ann. 1123, 44 Am. Rep. 456 (1882). In Kelly, the court stated:
Everyone, whether he is principal or agent, is responsible directly to persons injured by his own negligence in fulfilling obligations resting upon him in his individual character and which the law imposes upon him, independent of contract. No man increases or diminishes his obligations to strangers by becoming an agent. If, in the course of his agency, he comes in contact with the person or property of a stranger, he is liable for any injury he may do to either, by his negligence, in respect to duties imposed by law upon him in common with all other men. *235578 S.W.2d at 567, quoting Montanick and Delaney, supra.
South Dakota has codified a similar statement of the law of negligence in SDCL 20-9-1 which provides in part, “[e]very person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill[.]” The fact of agency does not change this rule. In Kelly, supra, the Supreme Court of Arkansas justified the imposition of personal liability upon a state official in light of the above quoted passage, despite recognition of the doctrine of sovereign immunity contained in the Arkansas Constitution, (footnote omitted). 578 S.W.2d at 567.
Although the state, as sovereign, is immune from suit in state courts without legislative consent, Kruger v. Wilson, 325 N.W.2d 851, 852 (S.D.1982), citing [Conway v. Humbert, 82 S.D. 317, 145 N.W.2d 524 (1966)], the liability of a state employee for his own negligent or intentional acts is another matter. “Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or ... want of ordinary care[.]” SDCL 20-9-1. The remedy provided by common law and by this statute is supported not only by the “open courts” provision but by other substantial constitutional provisions.3
(Footnotes in original).
This court has consistently concluded that “the immunity available to the state does not extend to cover an employee conducting ministerial functions[.]” Kruger, supra at 854; accord Leir, supra; Conway, supra; Walters v. City of Carthage, 36 S.D. 11, 153 N.W. 881 (1915); State v. Ruth, 9 S.D. 84, 68 N.W. 189 (1896). In other words, ministerial conduct, if any, of Coaches Freidel and Meyer, whether omission or commission, is not shielded from individual liability by sovereign immunity even though within the scope of their employment.
A simple example illustrates this point:
1) A negligently drives his car into B causing injuries and damages. A is liable to B for the injuries and damages.
2) Same facts except that A happens to be going to pick up the mail for the state, county, city, or school board. A is individually liable to B for B’s injuries and damages even though A is within the scope of employment.
Sovereign immunity does not extend to shield A from individual liability to B in the second situation. See Kruger, supra.
In Baatz v. Arrow Bar, 426 N.W.2d 298, 304 (S.D.1988), we stated:
SDCL 20-9-1 is a simple codification of the common law of negligence. In essence, then, the South Dakota Constitution and existing statutory law provide that an injured person has a right to a remedy against a wrongdoer. Zacher v. Budd Co., 396 N.W.2d 122 (S.D.1986); Oien v. City of Sioux Falls, 393 N.W.2d 286 (S.D.1986); Daugaard v. Baltic Coop Bldg. Supply Ass'n, 349 N.W.2d 419 (S.D.1984). This is so whether the wrongdoer acts alone or with another wrongdoer. Bego, supra.
The legislature can impose reasonable restrictions upon available remedies and even upon these rights in accordance with the constitution, as long as they do not violate the constitution; but they cannot destroy these rights in violation of the constitution.
Even the provision of the constitution that .provides for sovereign immunity im*236plicitly compels this result. Art. Ill, § 27 provides:
§ 27. Suits Against the State. The Legislature shall direct by law in what manner and in what courts suit may be brought against the state.
Although this provision of the constitution relates to procedure, not substance, it implies that substance should be provided or specified by the legislature. The remedy provided by the legislature must be reasonable, i.e., constitutionally sound. In other words, Article III, § 27 authorizes the legislature to specify when the state will waive its sovereign immunity, but the legislature may not expand the scope of that immunity. In Oien, supra, we held that the extension of sovereign immunity beyond traditional bounds was unconstitutional under the “open courts” provision of the South Dakota Constitution. See S.D. Const, art. VI, § 20.
Therefore, by attempting to extend sovereign immunity to shield ministerial acts as opposed to discretionary acts, the South Dakota Legislature overreached its bounds in enacting SDCL 21-32-17 and SDCL 21-32A-2. Likewise, the South Dakota Supreme Court erred when issuing its opinion for Governor Janklow by not limiting the sovereign immunity shield to liability for discretionary acts, as opposed to ministerial acts. In re Request for Opinion of Supreme Court, 379 N.W.2d 822 (S.D.1985). In fairness to the then existing members of the court, this exact point was not specifically raised or addressed in the opinion. Nevertheless, it reinforces the concerns expressed by Justice Henderson in his dissent about issuing advisory opinions and binding the court “in factual situations which have not been tried in a court of law,” that is, where there is not a real case with a live controversy. Id. at 828.
ín conclusion, I agree with the majority opinion that the acts of Coaches Freidel and Meyer, in designing and supervising the weight program, constitute discretionary acts as a matter of law and shield them from liability to Gasper.4
. Whether sovereign immunity shields an individual state employee from liability turns on whether the employee's acts are discretionary or ministerial. Numerous factors are to be weighed when deciding whether an act is discretionary or ministerial. See, e.g., National Bank of South Dakota v. Leir, 325 N.W.2d 845, 848 (S.D.1982). Generally, discretionary acts require the exercise of judgment, whereas ministerial acts involve the implementation of the judgment decisions of others.
. S.D. Const, art. VI § 20 provides: "All courts shall be open, and every man for an injury done him in his property, person or reputation, shall have remedy by due course of law, and right and justice, administered without denial or de- ■ lay.”
. S.D. Const, art. VI provides in part:
§ 1. Inherent rights. All men have certain inherent rights including enjoying and defending life and liberty, acquiring and protecting property and the pursuit of happiness.
§ 2. Due Process. No person shall be deprived of life, liberty, or property without due process of law.
§ 12. Privilege or immunity laws. No law granting an irrevocable privilege, franchise or immunity shall be passed.
§ 18. Equal privileges or immunities. "No law shall be passed granting to any citizen, class of citizens or, corporation, privileges or immunities which upon the same terms shall not equally belong to all citizens or corporations.”
. If Gasper had requested their assistance and they either neglected or refused to assist, or if they had negligently caused weights to fall on him, their acts would be ministerial in nature and could subject them” to individual liability. Obviously, any liability on their part under those circumstances would be subject to the defenses of contributory negligence and assumption of the risk, if any, on the part of Gasper. All of these questions would present genuine issues of material fact precluding summary judgment. Bego, supra, Groseth Int'l, Inc. v. Tenneco, Inc., 410 N.W.2d 159 (S.D. 1987); Wilson v. Great Northern Ry. Co., 83 S.D. 207, 157 N.W.2d 19 (1968).