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).
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
[¶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).
[¶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.
[¶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 ...