GILBERTSON, Chief Justice (on reassignment).
[¶ 1.] Monny Truman (Truman), individually and as special administrator of his wife Patricia's estate, and Steven and Dee Ann Rounds
[¶ 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 south-bound 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.
[¶ 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
[¶ 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:
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 n. 3, 658 N.W.2d 64, 67 n. 3 (citing Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 2247, 144 L.Ed.2d 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 N.W.2d 594 (S.D.1979); Darnall v. State, 79 S.D. 59, 108 N.W.2d 201 (1961); Griffis v. State, 68 S.D. 360, 2 N.W.2d 666 (1942); Mullen v. Dwight, 42 S.D. 171, 173 N.W. 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 N.W.2d 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 N.W.2d 603, 607 (citing Wulf v. Senst, 2003 SD 105, ¶ 19, 669 N.W.2d 135, 142 (citing Bego v. Gordon, 407 N.W.2d 801 (S.D.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 N.W.2d at 671 (citing Hansen v. SD Dept. of Transp., 1998 SD 109, ¶ 18, 584 N.W.2d 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
[¶ 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
[¶ 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.
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).
[¶ 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
[¶ 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 S.D. 393, 59 N.W. 219 (1894).
Id. at 221.
[¶ 19.] Shortly thereafter, we concluded that sovereign immunity applied to discretionary governmental duties but not to ministerial ones. State v. Ruth, 9 S.D. 84, 68 N.W. 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:
Sisney v. Reisch, 2008 SD 72, ¶ 12, 754 N.W.2d 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
Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d at 886 (citations omitted) (emphasis in original and added). See also King, 2007 SD 2, ¶ 12, 726 N.W.2d at 607; Wulf, 2003 SD 105, ¶ 20, 669 N.W.2d at 142; Casazza v. State, 2000 SD 120, ¶ 13, 616 N.W.2d 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 N.W.2d 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 N.W.2d at 887-888. See also Wulf, 2003 SD 105, ¶ 29, 669 N.W.2d at 146.
Nature of the Duties Under SDCL 31-28-6
[¶ 23.] SDCL 31-28-6 provides:
(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."
[¶ 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
[¶ 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 N.W.2d 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 N.W.2d 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 N.W.2d 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 N.W.2d 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..."
1997 SD 122, ¶ 15 n. 3, 570 N.W.2d at 243 n. 3 (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.
[¶ 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.
[¶ 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.
[¶ 31.] Wulf, 2003 SD 105, 669 N.W.2d 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 concluding that 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 N.W.2d at 147 (quoting Hansen, 1998 SD 109, ¶ 31, 584 N.W.2d at 888) (quoting DuBree v. Commonwealth, 481 Pa. 540, 393 A.2d 293, 295 (1978)). In reaching this conclusion, we also held that "but for" DOT Policy 2571:
Wulf, 2003 SD 105, ¶ 28, 669 N.W.2d 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 N.W.2d at 610.
Truman's Evidence and Material Facts Concerning Sovereign Immunity
[¶ 33.] In order to determine whether the sovereign immunity defense applies, a
[¶ 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.
Hansen, 1998 SD 109, ¶ 23, 584 N.W.2d 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 N.W.2d 436, 444 (quoting Hohm v. City of Rapid City, 2008 SD 65, ¶ 3, 753 N.W.2d 895, 898 (citing State Auto Ins. Cos. v. B.N.C., 2005 SD 89, ¶ 20, 702 N.W.2d 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 N.W.2d 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
[¶ 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.
[¶ 38.] Similarly, the "channelized intersection" diagram differs in its basic traffic design. The curve of the channelized intersection is a one-way, right-hand
[¶ 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"
[¶ 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."
[¶ 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
[¶ 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,
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 n. 3, 658 N.W.2d 64, 67 n. 3 (citing Alden v. Maine, 527 U.S. 706, 715, 119 S.Ct. 2240, 2247, 144 L.Ed.2d 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 N.W.2d 801, 804 (S.D.1987). To that end, our Legislature has defined the conditions for the waiver of sovereign immunity in SDCL 21-32A-1, which states:
[¶ 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:
SDCL 3-22-1 (emphasis added). The breadth of coverage is notable. However, the statute continues:
Id. Additionally, the PEPL Fund Memorandum (memo) includes nearly all the exclusions listed in the statute and significantly expands the list.
[¶ 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 vs. 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:
King v. Landguth, 2007 SD 2, ¶ 11, 726 N.W.2d 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:
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 N.W.2d 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 N.W.2d 896, 902 (S.D.1995) (emphasis added))); Wulf v. Senst, 2003 SD 105, ¶ 20, 669 N.W.2d 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 N.W.2d 845, 850 (S.D.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.").
[¶ 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 N.W.2d 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,
[¶ 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
[¶ 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,
[¶ 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 N.W.2d 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
[¶ 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, 481 Pa. 540, 393 A.2d 293, 295 (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, 95 Ohio App.3d 21, 641 N.E.2d 1126, 1130 (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 N.W.2d 135; Kyllo, 535 N.W.2d 896; National Bank of South Dakota, 325 N.W.2d 845; and Bego, 407 N.W.2d 801, support his argument.
[¶ 63.] In Wulf, 2003 SD 105, ¶ 4, 669 N.W.2d 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
[¶ 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 N.W.2d 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 Cal.App.3d 1053, 1058, 84 Cal.Rptr. 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 N.W.2d at 903, Leir, 325 N.W.2d at 848, and Bego, 407 N.W.2d 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 N.W.2d 240, and Braun v. New Hope Township, 2002 SD 67, 646 N.W.2d 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 N.W.2d 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 N.W.2d 668, and King, 2007 SD 2, 726 N.W.2d 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 N.W.2d 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
[¶ 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.
[¶ 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."
[¶ 71.] Lastly, the Minnesota court of appeals case, Ostendorf v. Kenyon, 347 N.W.2d 834 (Minn.Ct.App.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,
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:
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
[¶ 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:
[¶ 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 U.S. 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...."); S.D. 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 jury trial on the merits of this case in accordance with the state and federal constitutions.
[¶ 81.] MEIERHENRY, Justice, joins this dissent.
PEPL Memorandum of Liability Coverage to the Employees of the State of South Dakota 13-15. The specificity of several of the exclusions is notable.