IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
February 11, 2009
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,
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.
The opinion of the court was delivered by: Gilbertson, Chief Justice (on reassignment).
ARGUED APRIL 23, 2008
REASSIGNED DECEMBER 9, 2008
[¶1.] Monny Truman (Truman), individually and as special administrator of his wife Patricia's estate, and Steven and Dee Ann Rounds*fn1 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.*fn2 We affirm.
[¶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 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 southbound 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.*fn3
[¶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.
[¶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.*fn4
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).
[¶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.
[¶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*fn5 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. 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).*fn6
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 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 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 todiscretionary 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. 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.*fn7 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 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."*fn8 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.
[¶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 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 . . ."*fn9 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.*fn10 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 third time and construed SDCL 31-28-6 as creating a discretionary duty upon the defendant protected by sovereign immunity.*fn11
[¶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.*fn12 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. Without standard uniform traffic control practices, the placement or omission of signs by government actors is discretionary under SDCL 31-28-6.*fn13
[¶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 concludingthat 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.
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.
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 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.*fn14
[¶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.*fn15 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 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"*fn16 under any "standard uniform traffic control practice" that would give rise to a ministerial duty. See SDCL 31-28-6.
[¶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."*fn17 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.
[¶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 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*fn18 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 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,*fn19 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.
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 . . . . 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.*fn20 Remarkably, 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.
[¶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 v. 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 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.
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 unanimouslydeclared 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 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,*fn21 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.
[¶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:*fn22 (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).*fn23
[¶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 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,*fn24 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.
[¶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 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 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 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.
[¶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.*fn25 That 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.*fn26 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 assignment."*fn27 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.*fn28
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 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 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.
[¶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 v. operational judgment, and Class 1 misdemeanor classification).
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 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.
[¶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 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 jurytrial on the merits of this case in accordance with the state and federal constitutions.
[¶81.] MEIERHENRY, Justice, joins this dissent.