(concurring):
I concur in the result and the holding of the majority opinion that the ministerial decisions made by Blake {e.g., to transport Morris in Blake’s own car, which was not specially equipped, and to handcuff Morris in front) were not “discretionary functions” within the meaning of 10 Del.C. § 4011(b)(3). I also agree that this case is distinguishable from this Court’s relatively recent decision in Sadler v. New Castle County, Del.Supr., 565 A.2d 917 (1989). If the instant ease were indistinguishable from Sadler, as the dissent contends, we would have to consider a question which was not briefed or argued in the instant case — whether or not to overrule Sadler. Happily, the facts of this case do not require us to consider overruling Sadler.
Any reconsideration of Sadler in future cases might implicate a revisiting of the interesting statutory construction question which turns on the intent of the General Assembly in resolving the tension between allowing redress to those injured by the torts of municipal agents (see Restatement (Second) Torts 2d, Special Note on Governmental Immunity at p. 395), and the economic interests of governmental entities in curbing litigation costs, exposure to large damage awards and the consequent drain on public resources arising out of insurance costs. See Fiat Motors of North America, Inc. v. Mayor and Council of the City of Wilmington, Del.Supr., 498 A.2d 1062, 1067 (1985).
The policy issues inherent in the balancing of this tension are legislative, not judicial, policy questions. As this Court noted in Fiat, courts should “only [apply] the strict language of the statute itself in deciding whether an activity is immune or is not.” Id., 498 A.2d 1067 n. 8. Accordingly, in Fiat the Court attached as an appendix to the Opinion the text (including preamble) of the County and Municipal Tort Claims Act (the “Act”) as originally enacted in 62 Del.Laws. ch. 124 (July 5, 1979). 498 A.2d at 1068-70. The Act was apparently based upon a legislative policy “reestablishing the principle of sovereign immunity for counties and municipalities,” citing the expressed concern for the “cost of insurance, when obtainable, [which] has reached proportions unanticipated by local government as a result of the multiplicity of lawsuits filed against local governments in recent years.” Id. at 1068-69.
It is clear that in 1979 the General Assembly intended to overrule certain judicial decisions in order “to dispense with the common law distinction between governmental activities and proprietary activities of municipal entities.” Id. at 1067. In implementing that legislative policy, the Act expressly permitted suits against governmental entities {e.g., for negligence arising out of “ownership, maintenance or use of any motor vehicle, ... or other machinery or equipment_”). 10 Del.C. § 4012(1).
*1362Section 4012(1) is the basis of liability here, but it was not in Sadler. See 565 A.2d at 922. What is at issue here, as well as in Sadler, is the proper construction of 10 Del.C. § 4011(b)(3) which immunizes counties and municipalities from liability which would otherwise attach under Section 4012 if the claim “... results from ... the performance or failure to exercise or perform a discretionary function or duty, whether or not the discretion be abused....”
I agree with the majority that Blake’s activities here fall outside any reasonable definition of “discretionary function” within the meaning of the statute. Yet, as the majority opinion notes, the term “discretionary” and its antonym “ministerial” are “nebulous” and need not be explicated. I likewise agree with the majority opinion that efforts by some courts to establish tests or guidelines to divine the proper meaning of these murky concepts have led to frustration.
If a proper case should arise in the future where we would be called upon to reexamine the scope of the term “discretionary function,” we may well consider whether the General Assembly intended to embrace or depart from the scope of the “discretionary function” exception as found in the Federal Tort Claims Act (“FTCA”), 28 U.S.C. § 2680(a), which contains language similar to the Delaware Statute. The FTCA grants immunity in a case involving:
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.
(Emphasis supplied). The body of case law under the FTCA is not exactly clear, but it is a body of law we may wish to consult if the issue is presented in future cases.
It has been held that the discretionary function test under the FTCA depends generally on whether the act or omission occurred at policy or planning level or whether it occurred at an operational level. See, e.g., Dalehite v. United States, 346 U.S. 15, 34, 73 S.Ct. 956, 967, 97 L.Ed. 1427 (1953); Nevin v. U.S., 696 F.2d 1229 (9th Cir.1983), cert. denied, 464 U.S. 815, 104 S.Ct. 70, 78 L.Ed.2d 84 (1983). See also, Restatement (Second) Torts § 895B, comment d at p. 403 (re “administrative function”). Yet, some cases suggest that actions which do not rise to the dignity of policy or planning decisions may be “discretionary functions” under the FTCA. See, e.g., United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 104 S.Ct. 2755, 81 L.Ed.2d 660 (1984) (distinction not mentioned); Downs v. United States, 522 F.2d 990, 997 (6th Cir.1975) (planning/operational level test rejected because “status of the official making a judgment” was “not a sufficient test for determining whether a government employee’s actions are within the exception_ Rather the basic question ... is whether the judgments of a Government employee are of ‘the nature and quality’ which Congress intended to put beyond judicial review.”); Blessing v. United States, 447 F.Supp. 1160, 1173 (E.D.Pa.1978) (the “planning/operational distinction, instructive as it may be on a theoretical level, can become exceedingly problematic when applied to concrete facts”); Bradley v. United States, 615 F.Supp. 206, 208-09 (W.D.Tenn., W.D.1985) (continued use of the distinction “is of questionable propriety in that the most recent Supreme Court pronouncement [Varig ] on the discretionary function exception fails even to mention the test”), aff'd, Pooler v. U.S., 787 F.2d 868 (3rd Cir.1986).
This Court in Sadler held that the rescuers’ decision to transport the victim across the river rather than up the cliff was a “discretionary function” because “the legislature intended to include within the scope of the Act’s immunity not only the policy decision to undertake a function [T]he Act’s immunity prima facie, extends to the manner or method selected *1363by the governmental employees to discharge the police power.” 565 A.2d at 922 (emphasis supplied). We hold today that Blake’s decisions were “ministerial” or “operational” and, therefore, not immune. One could also argue that the decision of the rescuers in Sadler was “ministerial” or “operational.”
It is unnecessary for us to analyze precisely the current body of law under the FTCA or to decide if that amorphous judicial gloss (or any other authority) is persuasive in determining whether Sadler should be approved, overruled or limited. Those issues are left open, in my view, for another day.