#30857, #30872-a-MES 2026 S.D. 14
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
****
ESTATE OF KYLEE L. SANBORN, by and through its Personal Representative, Sarah C. Sanborn, and ESTATE OF JAYNA R. SANBORN, by and through its Personal Representative, Sarah C. Sanborn, Plaintiffs and Appellants,
v.
MARK PETERSON, TODD HERTEL, BRAD LETCHER, DAN MARTEL, MICHAEL HIEB, and TERENCE PECK, Defendants and Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE THIRD JUDICIAL CIRCUIT BEADLE COUNTY, SOUTH DAKOTA
THE HONORABLE KENT A. SHELTON Judge
JOHN W. BURKE of Thomas Braun Bernard & Burke, LLP Rapid City, South Dakota
ARGUED OCTOBER 8, 2025 OPINION FILED 03/04/26 ****
MICHAEL J. SCHAFFER PAUL H. LINDE of Schaffer Law Office, Prof. LLC Sioux Falls, South Dakota Attorneys for plaintiffs and appellants.
JUSTIN L. BELL DOUGLAS A. ABRAHAM ROBERT B. ANDERSON of May Adam Gerdes & Thompson, LLP Pierre, South Dakota Attorneys for defendants and appellees. #30857, #30872
SALTER, Justice
[¶1.] Following the death of her two daughters in a car accident that
occurred along U.S. Highway 281, Sarah Sanborn brought suit against several
South Dakota Department of Transportation (DOT) employees in both their
individual and official capacities. Sarah claims that the fatal accident resulted from
the DOT employees’ negligent failure to maintain and repair the adjacent gravel
shoulder in compliance with governing standards. The DOT employees moved for
summary judgment, asserting Sarah’s claims were barred by sovereign immunity
and the public duty doctrine. The circuit court granted the defendants’ motion for
summary judgment drawing on both arguments. The court determined that
sovereign immunity barred Sarah’s official capacity claims but not the individual
capacity ones, which the circuit court ultimately found to be barred by the public
duty doctrine. Sarah appeals the public duty decision, and the defendants seek
review of the court’s decision denying summary judgment of the individual capacity
claims based on sovereign immunity. We affirm the circuit court’s grant of
summary judgment on the individual capacity claims, but we do so under the
doctrine of sovereign immunity.
Factual and Procedural History
[¶2.] On November 24, 2019, Kylee Sanborn and her older sister Jayna were
tragically killed in an automobile crash on U.S. Highway 281 near Bonilla in Beadle
County. As the girls approached a slight curve in the road, their car drifted to the
right, across the white fog line and on to the gravel shoulder, which was five to six
inches below the paved roadway.
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[¶3.] Kylee was driving, and in the moments that followed, she attempted to
steer the car left, back on to the roadway from the lower shoulder, resulting in an
overcorrection that caused the car to veer into the southbound lane and into
oncoming traffic. After narrowly missing a fuel truck, Kylee and Jayna collided
head on with a pickup.
[¶4.] Following the accident, Sarah brought this wrongful death and
survivor action as the personal representative of her daughters’ estates. The
amended complaint named as defendants six DOT employees in both their official
and individual capacities: (1) Mark Peterson—the region engineer for the DOT’s
Aberdeen region, (2) Todd Hertel—the Aberdeen region’s operations engineer, (3)
Dan Martel—the Aberdeen region’s traffic engineering supervisor, (4) Brad
Letcher—a DOT area engineer, (5) Michael Hieb—a DOT highway maintenance
supervisor from 2010 through 2021, and (6) Terence Peck—a DOT lead
maintenance worker.
[¶5.] In an amended complaint, Sarah alleges that “[b]ecause Highway 281
is part of South Dakota’s state trunk [highway] system, the Defendants are
responsible for the construction, maintenance, repair, and condition of Highway
281, including, but not limited to, the shoulders . . . .” She asserts that the
defendants had both statutory and common law duties to maintain and repair the
shoulder along Highway 281, alleging further that these duties are specifically
defined in the DOT’s maintenance manual, which contains the policies, standards,
and guidelines for highway maintenance.
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[¶6.] The manual in effect at the time of the accident (November 2019)
included a policy letter titled, “Policy Number: OM-2002-09,” which required
“[e]xisting gravel shoulders” to be maintained in their “design condition.” Because
Highway 281 was designed and constructed with a gravel shoulder that was flush
with the paved portion of the roadway, Sarah alleges the defendants breached a
ministerial duty by failing to maintain a flush shoulder.
[¶7.] The policy letter also incorporated specific performance standards,
such as Performance Standard Function 2158, which relates specifically to gravel
shoulder maintenance and repair. Drawing on these performance standards, Sarah
alleges that Highway 281’s gravel shoulder should have been repaired “when the
shoulder surface [sank] more than one and a half inches lower than the pavement,
and in isolated areas where gravel ha[d] been lost.”
[¶8.] Highway 281 is also part of the National Highway System and subject
to a stewardship agreement between the DOT and the Federal Highway
Administration (FHWA). Sarah alleges that this obligated the DOT “to follow the
American Association of State Highway and Transportation Officials (‘AASHTO’)
standard,” which also requires “shoulders to be maintained flush with the
pavement.” Sarah asserts that under its federal stewardship agreement, the DOT
agreed to abide by “the control documents for the design of highways, including the
policy on Geometric Design of Highways and Streets (commonly referred to as the
‘Green Book’), the Roadside Design Guide, and other standards.”
[¶9.] The defendants moved for summary judgment asserting first that
sovereign immunity bars Sarah’s claims because the governing standards for
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highway maintenance and repair that she identifies impose discretionary, not
ministerial, duties. As such, the defendants contend the State has not waived
sovereign immunity for the conduct underlying her claims.
[¶10.] Under a separate summary judgment argument, the defendants assert
that the public duty doctrine precludes Sarah’s claims. They asserted that highway
maintenance and repair are public safety functions that implicate public duties to
the motoring public generally—not private actionable duties.
[¶11.] The circuit court granted the defendants’ motion in a mixed decision.
The court concluded that the defendants were entitled to sovereign immunity in
their official but not individual capacities. The court reasoned that Policy Number
OM-2002-09 created a ministerial duty for the DOT to maintain gravel shoulders
“in accordance with the[ir] initial design plan[s].” The court did, however, grant
complete summary judgment in the defendants’ favor after concluding that highway
maintenance and repair is “an act of public safety” and that Sarah’s claims are
therefore barred by “the public duty doctrine[, which] extends to a government
employee being sued on an issue involving law enforcement or public safety.”
[¶12.] Sarah appeals the circuit court’s application of the public duty
doctrine. And by notice of review, the defendants seek reversal of the court’s
decision to deny the motion for summary judgment on the individual capacity
claims under its sovereign immunity theory.
Analysis and Decision
[¶13.] The facts giving rise to this case are utterly heart-rending, and the
magnitude of Kylee and Jayna’s loss to their family is incomprehensible. Critically,
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though, this appeal does not question or seek to weigh the tragedy of Kylee and
Jayna’s loss.
[¶14.] Nor does it present for our review the reasonableness of the
defendants’ conduct in the actual maintenance of Highway 281’s shoulder where the
fateful collision occurred. That question is secondary to whether Sarah can
maintain her action against the defendants—all of whom are DOT employees—in
the midst of established legal doctrines that sharply limit a private citizen’s ability
to sue the government or its employees for allegedly negligent conduct.
Consequently, even with the pall of personal tragedy hanging over this case, “our
task [on appeal] is a narrow one”—to determine whether the circuit court’s grant of
summary judgment was proper. Truman v. Griese, 2009 S.D. 8, ¶ 11, 762 N.W.2d
75, 78.
Summary judgment standard
[¶15.] “We review a circuit court’s entry of summary judgment” de novo.
Healy Ranch, Inc. v. Healy, 2022 S.D. 43, ¶ 17, 978 N.W.2d 786, 793 (quoting Est. of
Stoebner v. Huether, 2019 S.D. 58, ¶ 16, 935 N.W.2d 262, 266). “Summary
judgment is appropriate ‘if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a
judgment as a matter of law.’” Weiland v. Bumann, 2025 S.D. 9, ¶ 36, 18 N.W.3d
148, 158 (quoting Barr v. Cole, 2023 S.D. 60, ¶ 18, 998 N.W.2d 343, 349); SDCL 15-
6-56(c).
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The doctrine of sovereign immunity
[¶16.] At common law, an individual had no right to sue a public authority or
its employees. See The Federalist No. 81 (Alexander Hamilton) (“It is inherent in
the nature of sovereignty not to be amenable to the suit of an individual without its
consent. This . . . exemption, as one of the attributes of sovereignty, is now enjoyed
by the government of every State in the Union.”); Hans v. Louisiana, 134 U.S. 1, 16
(1890) (“The suability of a State, without its consent, was a thing unknown to the
law. This has been so often laid down and acknowledged by courts and jurists that
it is hardly necessary to be formally asserted.”).
[¶17.] Any right to sue a sovereign must be created—not by the courts—but
by the Legislature, as we have specifically held: “Under the South Dakota
Constitution, ‘[t]he Legislature shall direct by law in what manner and in what
courts suits may be brought against the state.’” LP6 Claimants, LLC v. S.D. Dep’t
of Tourism & State Dev., 2020 S.D. 38, ¶ 13, 945 N.W.2d 911, 915 (alteration in
original) (quoting S.D. Const. art. III, § 27). The resulting legal doctrine known as
sovereign immunity describes “the right of public entities to be free from liability for
tort claims unless waived by legislative enactment.” Id. (quoting Bickner v.
Raymond Twp., 2008 S.D. 27, ¶ 10, 747 N.W.2d 668, 671).
[¶18.] Under limited circumstances, this immunity also extends to state
employees. For instance, sovereign immunity applies to state employees when they
perform discretionary functions. King v. Landguth, 2007 S.D. 2, ¶ 10, 726 N.W.2d
603, 607 (citing Wulf v. Senst, 2003 S.D. 105, ¶ 20, 669 N.W.2d 135, 142); see also
Kyllo v. Panzer, 535 N.W.2d 896, 902 (S.D. 1995) (explaining the history of
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sovereign immunity and personal liability in South Dakota). But immunity does
not attach—and employees remain subject to suit—“when state employees perform
ministerial functions.” King, 2007 S.D. 2, ¶ 10, 726 N.W.2d at 607 (citing Wulf,
2003 S.D. 105, ¶ 20, 669 N.W.2d at 142). The distinction is sourced to the exercise
of sovereign power, itself.
[¶19.] “The reason that state employees are shielded from lawsuits by the
state’s immunity when they perform discretionary acts within the scope of their
authority is that such discretionary acts participate in the state’s sovereign policy-
making power.” Ritter v. Johnson, 465 N.W.2d 196, 198 (citing Nat’l Bank of S.D. v.
Leir, 325 N.W.2d 845, 850 (S.D. 1982)). Conversely, “a ministerial act is the simple
carrying out of a policy already established, so . . . permitting state employees to be
held liable for negligence in the performance of merely ministerial duties within the
scope of their authority does not compromise the sovereignty of the state.” Id.
(citation modified).
[¶20.] “Whether an act is discretionary or ministerial is a question of law”
that we review de novo. McGee v. Spencer Quarries, Inc., 2023 S.D. 66, ¶ 30, 1
N.W.3d 614, 624 (citing Truman, 2009 S.D. 8, ¶ 10, 762 N.W.2d at 78). We recently
described a ministerial act in unyielding terms in McGee:
[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
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prescribed manner without the exercise of judgment or discretion as to the propriety of the action.
Id. (alteration in original) (quoting Truman, 2009 S.D. 8, ¶ 21, 762 N.W.2d at 80–
81).
[¶21.] This ministerial act definition marks the extent of the Legislature’s
abrogation of sovereign immunity. That means all duties falling outside of this
definition are discretionary and entitled to the protection of sovereign immunity.
Id.; see LP6 Claimants, 2020 S.D. 38, ¶ 13, 945 N.W.2d at 915 (“Any waiver of the
State’s sovereign immunity must be expressly identified by the Legislature.”).
[¶22.] But this ministerial-discretionary dichotomy may be easier to
formulate than apply in any given case. At some level of abstraction, perhaps every
governmental function that envisions a particular outcome could arguably be
considered “ministerial.” And yet, “[i]n a strict sense, every action of a
governmental employee, except perhaps a conditioned reflex action, involves the use
of some degree of discretion.” Swanson v. United States, 229 F. Supp. 217, 219–20
(N.D. Cal. 1964); see McGee, 2023 S.D. 66, ¶ 34, 1 N.W.3d at 625 (observing “the
distinction between discretionary and ministerial acts is often one of degree”
(quoting Wulf, 2003 S.D. 105, ¶ 23, 669 N.W.2d at 144)). For this reason, the
“determination of what acts constitute discretionary or ministerial functions
requires an individualized inquiry.” McGee, 2023 S.D. 66, ¶ 34, 1 N.W.3d at 625; see
also Hansen v. S.D. Dep’t of Transp., 1998 S.D. 109, ¶ 23, 584 N.W.2d 881, 886
(stating that “whether a public official’s acts are discretionary or ministerial must
be determined by the facts of each particular case” (quoting 63C Am. Jur. 2d Public
Officers and Employees § 327, 775–76 (1997))).
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[¶23.] Here, the defendants contend that the circuit court erred when it
concluded that Policy Number OM-2002-09—the flush shoulder requirement—
created a ministerial duty. In their view, the performance standards that the policy
incorporates are discretionary, and the act of maintaining gravel shoulders cannot
be “absolute, certain, and imperative.” In response, Sarah argues that Policy
Number OM-2002-09 “is the policy regarding shoulder maintenance” and therefore
establishes a ministerial duty, as do state and federal statutes, federal highway
guidebooks, and unwritten standards based on employee experience. We examine
each source that Sarah asserts as a basis for a ministerial duty.
A. Federal highway statutes
[¶24.] We begin with Sarah’s reliance on state and federal statutes.
Although Highway 281 is part of the National Highway System, the text of 23
U.S.C. § 116(b) provides that “[i]t shall be the duty of the State transportation
department . . . to maintain . . . any project constructed under the provisions of this
chapter . . . or prior acts.” In SDCL 31-5-1, the Legislature further delegated this
duty to the DOT, stating that “[t]he Department of Transportation shall maintain,
and keep in repair, all highways or portions of highways, including the bridges and
culverts, on the state trunk highway system.” In addition to delegating highway
maintenance and repair duties to the DOT, the Legislature vested the DOT with
supervisory authority over highway construction and maintenance. SDCL 31-2-21
(providing that the DOT “shall supervise the construction and maintenance of the
state trunk highway system, its bridges, and culverts”).
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[¶25.] But none of these statutes impose a ministerial duty in the sovereign
immunity sense. Rather, the primary purpose of these statutes is to delegate
responsibility for highway construction, maintenance, and repair. While Sarah
correctly notes that the use of “shall” in a statute “manifests a mandatory directive
and does not confer any discretion in carrying out the action so directed,” SDCL 2-
14-2.1, its use in SDCL 31-2-21 and SDCL 31-5-1 simply means that the DOT is
responsible for “supervis[ing] the construction and maintenance of the state trunk
highway” system—not that every constituent act of construction and maintenance is
ministerial. Properly read, the text of SDCL 31-2-21 and SDCL 31-5-1 does not
prescribe the manner in which the DOT is to construct and maintain highways
“without the exercise of judgment or discretion as to the propriety of the action.”
See McGee, 2023 S.D. 66, ¶ 30, 1 N.W.2d at 624 (quoting Truman, 2009 S.D. 8, ¶ 21,
762 N.W.2d at 81).1
1. The provisions of SDCL 31-32-10 also make a handful of fleeting appearances in this case—first, in the circuit court’s memorandum opinion and in Sarah’s reply brief, both to support the assertion that SDCL 31-32-10 imposes a ministerial duty and, second, as part of Sarah’s argument that application of the public duty doctrine would abrogate the duty imposed by SDCL 31-32-10. The statute requires a “governing body” to “erect guards” over a highway damaged by “flood, fire or other cause” within forty-eight hours after notice and to repair the damage within a reasonable time. Sarah’s ministerial duty argument under this statute is foreclosed by our decision in Hansen v. South Dakota Department of Transportation, where we held that SDCL 31-32-10 did not create a ministerial duty because the “other cause” text was “not defined and as such fail[ed] to provide [a DOT employee] with a sufficiently specific standard of care with which to guide his decisions.” 1998 S.D. 109, ¶ 28, 584 N.W.2d at 887. Further, “to the extent it endangers the safety of public travel,” SDCL 31-32-10, “hardly defines a set task imposed by a law prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion,” id. ¶ 27 (citation modified). Under the doctrine of stare decisis, we are bound by our (continued . . .) -10- #30857, #30872
[¶26.] And none of the federal highway standards that Sarah cites transform
this delegated duty into a ministerial act. Because Highway 281 is subject to a
stewardship agreement between the DOT and the FHWA, the construction and
maintenance of Highway 281 are governed by standards set forth in the so-called
Green Book and The Roadside Design Guide. While these two publications
certainly discuss pavement edge drop-offs and emphasize the desirability of keeping
shoulders flush with the traveled roadway, neither creates a ministerial duty.
[¶27.] For example, the Green Book provides: “All types of shoulders should
be constructed and maintained flush with the traveled way pavement if they are to
fulfill their intended function. Regular maintenance is needed to provide a flush
shoulder.” Am. Ass’n of State Highway & Transp. Offs., A Pol’y on Geometric
Design of Highways & Sts., 321 (2001) (emphasis added). And while it is
questionable whether The Roadside Design Guide applies to routine maintenance as
opposed to highway design and construction, even if it did, it provides: “Pavement
edge drop-offs greater than 75 mm [3 in.] immediately adjacent to traffic should not
be left overnight. If they are, mitigating measures should be considered . . . .” Am.
Ass’n of State Highway & Transp. Offs., Roadside Design Guide § 9.5.2, 322 (4th ed.
2011) (emphasis added). It then provides a list of possible modifiable mitigating
measures that may be taken, reinforcing its discretionary nature.
________________________ (. . . continued) holding in Hansen, and Sarah has not asked us to overrule it, nor has she given us sufficient justification for doing so. See Earll v. Farmers Mutual Ins., 2025 S.D. 20, ¶ 32, 19 N.W.3d 536, 545 (noting how prior decisions are binding under the doctrine of stare decisis unless “departure is necessary to avoid the perpetuation of pernicious error” (quoting In re Noem, 2024 S.D. 11, ¶ 48, 3 N.W.3d 465, 479)).
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[¶28.] The plain language of these two control documents simply provides for
an optimal standard to prevent precipitous shoulder drop-offs. But neither creates
a ministerial act. In other words, meeting the standard set out in these documents
will not happen “in a prescribed manner without the exercise of judgment or
discretion as to the propriety of the action.” McGee, 2023 S.D. 66, ¶ 30, 1 N.W.3d at
624 (quoting Truman, 2009 S.D. 8, ¶ 21, 762 N.W.2d at 81).
B. Policy Number OM-2002-09 and Performance Standard Function 2158
[¶29.] We reach the same conclusion for the policy and performance
standards that the DOT adopted to effectuate its duty to construct, maintain, and
repair highways under SDCL 31-5-1. See SDCL 31-2-20 (“The Department of
Transportation shall advise and adopt standard plans and specifications for road,
bridge, and culvert construction and maintenance suited to the needs of the
different counties of the state . . . .”). As addressed above, the DOT’s maintenance
manual includes Policy Number OM-2002-09, which provides in pertinent part:
Gravel shoulders shall be maintained by blading and adding material as necessary to essentially preserve the original template section. Existing gravel shoulders shall be maintained in design condition. Vegetative growth shall be controlled, as needed.
Shoulders are to be maintained in accordance with the above guidelines using the applicable standards for the work being performed.
[¶30.] This policy, in turn, incorporates specific performance standards,
which differ based on the type of “work being performed.” Policy Number OM-2002-
09. When it comes to gravel shoulder maintenance and repair, Performance
Standard Function 2158 applies, with its stated purpose as follows:
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To provide a smooth shoulder free of ruts, distortions and maintain proper crown slope. This performance standard is a guideline to be considered by the maintenance supervisor or their designee. The maintenance supervisor or their designee shall retain the authority to modify or deviate from this performance standard within their discretion based on their experience and judgment due to specific weather conditions, roadway conditions, or other events which impact upon this performance standard.
(Emphasis added.)
[¶31.] The standard goes on to outline the conditions under which “[g]ravel
shoulders should be repaired”:
1. The shoulder surface next to the pavement is more than 1- 1/2” low for more than 50% of any shoulder mile. 2. The shoulder slope is less than 1/4” per foot or more than 1” per foot. 3. Heaved or high shoulders. 4. Minor edge ruts. 5. Isolated soft spots. 6. Scattered potholes. 7. Isolated area where gravel has been lost. 8. If conditions 1 through 7 above are met, and work can’t be scheduled because of seasonal conditions or other priorities, warning signs (i.e., low shoulder, shoulder drop-off) should be installed until repair can be completed.
[¶32.] So, decisions such as whether or when a particular stretch of shoulder
should be repaired necessarily involve the exercise of discretion. Though Policy
Number OM-2002-09 establishes a broad requirement under which “[g]ravel
shoulders shall be maintained,” it is met “using the applicable standards for the
work being performed”—here Performance Standard Function 2158—which, by its
express terms, authorizes “[t]he maintenance supervisor or their designee . . . to
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modify or deviate from this performance standard within their discretion based on
their experience and judgment.”
[¶33.] Standard Function 2158 also provides that “[g]ravel shoulder
maintenance is not of an emergency nature and should be scheduled” around
“seasonal conditions or other priorities” and “performed during moist weather
conditions, if possible.” Also, while the standard refers to routine inspections to
identify maintenance needs, it does not specify the frequency of such inspections.
Without question, neither Policy Number OM-2002-09 nor Performance Standard
Function 2158 set “hard and fast rules guiding the [DOT’s] actions for managing”
gravel shoulders on the state’s highway system. See Adrian v. Vonk, 2011 S.D. 84,
¶ 14, 807 N.W.2d 119, 124 (internal quotation marks omitted).
[¶34.] It is true, as Sarah observes, that our past cases have noted “that
highway repair is generally considered to be ministerial in nature.” McGee, 2023
S.D. 66, ¶ 36, 1 N.W.3d at 626 (citation modified). But in the context of our broader
sovereign immunity jurisprudence, this statement does not carry the dispositive
force Sarah suggests.
[¶35.] In fact, our rules clearly state that “[t]he determination as to whether
an official has acted in his or her discretion or capacity, and therefore is entitled to
immunity, is not subject to a fixed, invariable rule . . . .” Wulf, 2003 S.D. 105, ¶ 21,
669 N.W.2d at 143 (emphasis added) (citation omitted). And in McGee, itself, we
repeated the settled rule that the “determination of what acts constitute
discretionary or ministerial functions requires an individualized inquiry.” 2023
S.D. 66, ¶ 34, 1 N.W.3d at 625. Critically, we have also noted that “highway repair
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and maintenance functions will be considered discretionary, subject to sovereign
immunity, when they involve actual planning and design, policy decisions, or
actions that are not subject to an established standard.” Id. ¶ 36, 1 N.W.3d at 626
(emphasis added).
[¶36.] Consider this example. Regulation A establishes a standard of
maintenance for a white picket fence and further instructs that a maintenance
employee “shall repaint the picket fence white after regular inspection reveals
serious flaking or chipped paint.” Despite establishing a clear, identifiable
standard, the regulation does not create a ministerial act because it does not
“prescrib[e] and defin[e] the time, mode, and occasion of its performance with such
certainty that nothing remains for judgment or discretion.” Id. ¶ 30, 1 N.W.3d at
624 (quoting Truman, 2009 S.D. 8, ¶ 21, 762 N.W.2d at 80). Without any further
guidance, the maintenance employee must, at a minimum, exercise judgment to
determine the meaning of regular and whether the inevitable flaking is serious.
[¶37.] On the other hand, Regulation B states that a maintenance employee
“shall inspect the fence on the second Tuesday of every month. If the paint on any
fence board has chipped or flaked off to reveal any amount of bare wood, the
maintenance employee shall immediately repaint the fence white.” Regulation B
makes repainting the fence a ministerial act because the regulation defines a
specific act that is “absolute, certain, and imperative.” Truman, 2009 S.D. 8, ¶ 21,
762 N.W.2d at 80 (quoting Hansen, 1998 S.D. 109, ¶ 23, 584 N.W.2d at 886). Even
though some choices are left to the discretion of the painter—like where to start and
whether to use a brush or roller—the maintenance employee has no discretion as to
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what to do and when. See Wulf, 2003 S.D. 105, ¶ 26, 669 N.W.2d at 145 (stating
that “once it is determined that the act should be performed, subsequent duties may
be considered ministerial” (quoting Hansen, 1998 S.D. 109, ¶ 23, 584 N.W.2d at
886)).
[¶38.] Policy Number OM-2002-09 and Performance Standard Function 2158
resemble the first example, Regulation A, while scenarios like those in Wulf and
McGee more closely align with the second scenario, Regulation B. In Wulf, we held
that a DOT policy that required DOT employees to spread a certain
sand/salt/chemical mixture along highways from 5:00 a.m. until 7:00 p.m. during
winter storms until certain highway conditions were met created a ministerial duty.
See 2003 S.D. 105, ¶ 32, 669 N.W.2d at 146. And in McGee, we held that a standard
specification for highway repair created a ministerial duty “that tack application
ahead of the mat laydown ‘shall not exceed the amount estimated for the current
day’s operation.’” 2023 S.D. 66, ¶ 40, 1 N.W.3d at 627. In both Wulf and McGee,
“[t]here was no judgment or uncertainty” in when to carry out these obligations or
how to comply with them. Id. ¶ 41.2
[¶39.] Here, however, Performance Standard Function 2158 contains much
more discretion in “higher-level decisions and giving orders to effectuate those
decisions.” See Marson v. Thomason, 438 S.W.3d 292, 297 (Ky. 2014); see also
2. This was not the case for the DOT’s duty to place warning signs for exposed tack oil left on the highway, which we determined was not a ministerial duty based, in part, on the fact that the Federal Manual on Uniform Traffic Control Devices provided only a guideline for what “should” be done, rather than a mandatory directive as to what “shall” be done. McGee, 2023 S.D. 66, ¶ 50, 1 N.W.3d at 629.
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McGee, 2023 S.D. 66, ¶ 41, 1 N.W.3d at 627 (citing Marson with approval). As such,
it cannot be considered ministerial.
C. Duty to inspect shoulder conditions
[¶40.] Sarah further contends that Michael Hieb, the highway maintenance
supervisor for the area of Highway 281 where the Sanborn girls’ accident occurred,
had a ministerial duty to drive the roads within his area of responsibility and
identify dangerous conditions. Performance Standard Function 2158 provides that
“[r]outine inspections will identify needs related to gravel shoulder maintenance.”
In his deposition testimony, Hieb stated that in his view, based on his own
experience, roadways within his territory should be inspected once a week to
determine their condition. Although these weekly inspections are not within Hieb’s
written job description, Sarah asserts that Hieb’s testimony, informed by his
experience, established a “readily ascertainable standard” through which his
conduct could be measured. We read the testimony differently.
[¶41.] In our view, Hieb’s unilateral decision-making concerning the
appropriate frequency for “routine inspections” is the quintessential discretionary
act. It was an otherwise unguided act based upon his own professional experience
and was the furthest thing from a ministerial act “imposed by law prescribing and
defining the time, mode and occasion of its performance with such certainty that
nothing remains for judgment or discretion.” Truman, 2009 S.D. 8, ¶ 21, 762
N.W.2d at 80 (quoting Hansen, 1998 S.D. 109, ¶ 23, 584 N.W.2d at 886). Our
conclusion in this regard finds direct support in Wulf, where we held that a
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maintenance supervisor’s obligation to inspect roads within his designated territory
was discretionary:
[The defendant’s] obligations as maintenance supervisor were similar[ly] [discretionary]. He was obligated to inspect the roads[,] but he was also responsible for the maintenance of over 300 miles of roads. There were no clear standards as to when or how often [the defendant] was to inspect these roads and in particular Highway 42. This was discretionary on [the defendant’s] part.
Wulf, 2003 S.D. 105, ¶ 30, 669 N.W.2d at 146.
Conclusion
[¶42.] None of the highway maintenance sources that Sarah identified
impose a ministerial duty upon the defendants. As such, their duties to maintain
and repair the gravel shoulder along Highway 281 were discretionary and subject to
sovereign immunity. Because sovereign immunity bars Sarah’s individual capacity
claims, we affirm the circuit court’s decision to grant summary judgment, albeit on
a different basis. Under the circumstances, we need not address the court’s decision
under the public duty doctrine.
[¶43.] DEVANEY and MYREN, Justices, concur.
[¶44.] JENSEN, Chief Justice, concurs specially.
[¶45.] KERN, Retired Justice, dissents.
[¶46.] GUSINSKY, Justice, not having been a member of the Court at the
time this action was considered by the Court, did not participate.
JENSEN, Chief Justice (concurring specially).
[¶47.] I join the majority opinion because I must conclude that the obligation
to repair the damaged shoulder in this case was a discretionary function.
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“[W]hether a public official’s acts are discretionary or ministerial must be
determined by the facts of each particular case[.]” Hansen v. S.D. Dep’t of Transp.,
1998 S.D. 109, ¶ 23, 584 N.W.2d 881, 886 (citation omitted). Neither the statutes,
nor the DOT policies relied upon by Sarah create a duty that was “absolute, certain,
and imperative” as it relates to repairing the shoulder. Id. (citation omitted). While
Policy Number OM-2002-09 (Policy) requires the DOT to maintain gravel shoulders
consistent with its original design, Performance Standard Function 2158 (Standard
2158) affords DOT employees discretion as to when and how repair of a damaged
shoulder is completed. In addressing repair of a damaged shoulder, the language
throughout Standard 2158 uses the word “should,” suggesting a recommendation
rather than an obligatory duty. Unlike the ministerial duties in McGee v. Spencer
Quarries, Inc., 2023 S.D. 66, 1 N.W.3d 614 and Wulf v. Senst, 2003 S.D. 105, 669
N.W.2d 135, there is nothing in the identified statutes or DOT policies that
establish a standard or timeframe requiring DOT employees to take action to repair
a damaged portion of a highway shoulder.
[¶48.] “[H]ighway repair is generally considered to be ministerial in nature[.]”
McGee, 2023 S.D. 66, ¶ 36, 1 N.W.3d at 626 (quoting Wulf, 2003 S.D. 105, ¶ 23, 669
N.W.2d at 144). However, a plaintiff must still identify a standard by which an
employee is required to act. This “readily ascertainable standard” may arise from a
standard that is “written or the product of experience[.]” Hansen, 1998 S.D. 109,
¶ 23, 584 N.W.2d at 886. Sadly, in this case, the shoulder was in this condition for
months, and every DOT employee recognized that the shoulder created a hazard
that needed repair. This acknowledgement is mere common sense that even an
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untrained eye could conclude from the photographs of this shoulder, but it is not an
established standard. Similarly, the regional engineer went so far as to testify that
the drop-off was a “dangerous condition” and, had he been aware of the condition,
he would have requested immediate repair and that warning signs be put up
pending the repair. This testimony demonstrates a prudent discretionary decision
that should have been made by the regional engineer. None of this testimony,
however, established a readily ascertainable governing standard that required DOT
employees to act before the accident occurred.
[¶49.] The motoring public may likely be surprised, and even disappointed, to
learn that there is no governing standard requiring DOT employees to repair an
obviously damaged and dangerous shoulder on a roadway. In the absence of such a
ministerial duty, however, expanding the State’s liability for such a condition is a
policy decision for the Legislature, not this Court. “Sovereign immunity is the right
of public entities to be free from liability for tort claims unless waived by legislative
enactment.” Truman v. Griese, 2009 S.D. 8, ¶ 9, 762 N.W.2d 75, 78 (citations
omitted).
[¶50.] Finally, I am not aligned with footnote 1 of the majority opinion
reading Hansen v. South Dakota Department of Transportation to be dispositive on
the question of whether SDCL 31-32-10 creates a ministerial duty on the State to
repair damage to a highway. Hansen referenced that damage from an “other cause”
was not specific enough to create a ministerial duty when the condition of the
roadway was because of the DOT’s repair work occurring on the highway, not from
a damaged condition on the highway. 1998 S.D. 109, ¶ 27, 584 N.W.2d at 887.
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Hansen rejected the application of SDCL 31-32-10 in that case because “the bridge
had not been damaged by some other cause but was in the process of being
repaired.” Id. Hansen is distinguishable both factually and legally from an
instance involving damage to a highway that “endangers the safety of public
travel[.]” SDCL 31-32-10. Ultimately, the question of whether the Legislature
intended to create a ministerial duty on the State for highway repair in such a
situation was not decided in Hansen and remains a question for another day.
KERN, Retired Justice (dissenting).
[¶51.] I respectfully dissent. In my view, the DOT’s own policies impose a
ministerial duty to repair dangerously degraded gravel shoulders once objective
conditions are present. Therefore, since the defendants’ alleged failure is rooted in
an established ministerial duty as opposed to a discretionary duty, sovereign
immunity should not bar Sarah’s claim.
[¶52.] The Legislature has directed that the DOT “shall maintain, and keep
in repair, all highways or portions of highways, including the bridges and culverts,
on the state trunk highway system.” SDCL 31-5-1 (emphasis added). It further
provided that the DOT “shall supervise the construction and maintenance of the
state trunk highway system, its bridges, and culverts.” SDCL 31-2-21 (emphasis
added). In addition, because Highway 281 is subject to a DOT-FHWA stewardship
agreement, its construction and maintenance are governed by the Green Book,
which provides: “All types of shoulders should be constructed and maintained flush
with the traveled way pavement if they are to fulfill their intended function.
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Regular maintenance is needed to provide a flush shoulder.” (Emphasis added.)
DOT’s maintenance manual includes Policy Number OM-2002-09, which states:
Gravel shoulders shall be maintained by blading and adding material as necessary to essentially preserve the original template section. Existing gravel shoulders shall be maintained in accordance with the above guidelines using the applicable standards for the work being done.
[¶53.] In addition, Performance Standard Function 2158 specifies:
To provide a smooth shoulder free of ruts, distortions and maintain proper crown slope. This performance standard is a guideline to be considered by the maintenance supervisor or their designee. The maintenance supervisor or their designee shall retain the authority to modify or deviate from this performance standard within their discretion based on their experience and judgment due to specific weather conditions, roadway conditions, or other events which impact upon this performance standard.
[¶54.] Performance Standard Function 2158 also outlines conditions under
which “[g]ravel shoulders should be repaired”:
1. The shoulder surface next to the pavement is more than 1- 1/2” low for more than 50% of any shoulder mile. 2. The shoulder slope is less than 1/4” per foot or more than 1” per foot. 3. Heaved or high shoulders. 4. Minor edge ruts. 5. Isolated soft spots. 6. Scattered potholes. 7. Isolated area where gravel has been lost. 8. If conditions 1 through 7 above are met, and work can’t be scheduled because of seasonal conditions or other priorities, warning signs (i.e., low shoulder, shoulder drop-off) should be installed until repair can be completed.
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[¶55.] The majority opinion, citing McGee, asserts that the use of “shall” and
“should” in the relevant controlling documents provides not for an act that
“envisions direct adherence to a governing rule or standard with compulsory result,”
but rather confers discretion in carrying out the action directed. See McGee v.
Spencer Quarries, Inc., 2023 S.D. 66, ¶ 30, 1 N.W.3d 614, 624. Because the DOT
has discretion over whether and when a particular repair should occur, according to
the majority, the act is not ministerial and sovereign immunity applies. In other
words, the majority opinion seeks a standard that sets out the “prescribed manner
without the exercise of judgment or discretion as to the propriety of the action.” Id.
(quoting Truman v. Griese, 2009 S.D. 8, ¶ 21, 762 N.W.2d 75, 81). Under the
majority opinion’s reasoning, the DOT may therefore be held accountable for failing
to maintain a shoulder only where the Legislature has dictated the exact manner of
repair without any discretion, a standard that elevates formalism over function and
departs from the practical realities of highway maintenance.
[¶56.] Sarah primarily claims that DOT employees failed to take action after
the conditions in Policy Number OM-2002-09 and Performance Standard Function
2158 were satisfied, triggering a mandatory duty to repair the drop-off. Although
the DOT’s standards arguably allow discretion in the manner of repair, Wulf makes
clear that once the DOT adopts maintenance policies and certain conditions are
satisfied, the remaining duty is ministerial. See Wulf v. Senst, 2003 S.D. 105, ¶ 32,
669 N.W.2d 135, 146–47.3 Notably here, Mike Hieb, the DOT Highway
3. In Wulf, the DOT policy at issue contemplated that employees “use specified sand/salt/chemical mixtures and to continue sanding operations from 5:00 (continued . . .) -23- #30857, #30872
Maintenance Supervisor responsible for the applicable section of Highway 281,
admitted at his deposition that it was his responsibility to drive the road and check
for conditions, which he stated he did once per week before the accident. Jeff
Boomsma, a local farmer who often drove the same section of Highway 281, stated
at his deposition that the drop-off had been present “for approximately one year
before the accident.” Forrest Thompson, a witness to the accident, stated in his
deposition that he traveled that section of Highway 281 often, and the drop-off
“existed at least three months before the accident, if not longer.” DOT engineer
Mark Peterson agreed that the drop-off was a “dangerous condition” in need of
immediate repair. The pictures below were taken shortly after the accident and
depict the severe pavement drop-off that the Sanborns encountered, reaching seven
inches at some points.
________________________ (. . . continued) a.m. (in the morning) until 7:00 p.m. (in the evening) unless 1) the traffic is moving safely or 2) conditions become too hazardous for continued operations.” 2003 S.D. 105, ¶ 31, 669 N.W.2d at 146. The Court held that while DOT employees may “have discretion to determine such things as how many workers to call in for a storm, how many snowplows to put on the road, and where to place them, they do not have discretion to ignore the standards or policies established by DOT.” Id. ¶ 32, 669 N.W.2d at 147. Like in Wulf, although DOT employees may retain discretion over the manner of repair of the highway shoulder, they do not have discretion to disregard DOT’s own maintenance standards once the triggering conditions are met for a dangerous highway shoulder as contemplated by Policy Number OM-2002-09 and Performance Standard Function 2158.
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[¶57.] The testimony and photos above do not suggest that the DOT chose not
to make a discretionary repair they were aware of at the time. Rather, the evidence
indicates the DOT failed to follow the maintenance policies imparting a ministerial
duty to repair once the repairable condition contemplated by the controlling
documents was apparent. See id. The DOT’s policies, through Policy Number OM-
2002-09 and Performance Standard Function 2158, created an obligation to repair
that is ministerial.
[¶58.] The majority opinion uses two separate hypotheticals involving a
picket fence in an attempt to provide an example for their ruling. First, the
hypothetical surrounding Regulation A is inapposite. Regulation A analogizes
Sarah’s claim to chipped or flaking paint on a fence—a condition requiring pin-point
judgment as to severity. This case involves no such ambiguity. The condition at
issue was a conspicuous, dangerous shoulder drop-off on a section of highway that
DOT employees testified they routinely inspected. Peterson testified that, given
such a condition, he would have expected warning signs to be placed and repairs to
occur. A more apt comparison under Regulation A would be a fence entirely
stripped of paint after repeated inspections, with the maintenance employee
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nevertheless failing to repaint it. By reframing the facts through this hypothetical,
the majority opinion obscures the distinction between discretionary duties and the
failure to act in the face of an apparent and dangerous condition requiring
ministerial action.
[¶59.] The majority opinion’s hypotheticals fail for a second reason: the
regulations at issue here more closely resemble Regulation B than Regulation A.
Under the majority opinion’s own framework, Regulation B creates a ministerial
duty because it prescribes a specific obligation that is “absolute, certain, and
imperative.” Truman, 2009 S.D. 8, ¶ 21, 762 N.W.2d at 80 (citation omitted).
According to the majority opinion, although Regulation B permits discretion in
matters of execution—such as where to begin painting or what tools to use—the
maintenance employee has no discretion as to whether or when repainting must
occur once the triggering condition is present. See Wulf, 2003 S.D. 105, ¶ 26, 669
N.W.2d at 145 (“[O]nce it is determined that the act should be performed,
subsequent duties may be considered ministerial.” (citation omitted)).
[¶60.] Here, Policy Number OM-2002-09 and Performance Standard Function
2158 operate in the same manner. While the standards provide DOT employees
with discretion in how repairs are carried out, they do not permit discretion to
ignore objectively dangerous shoulder conditions once identified. In other words,
once Hieb discovered—or reasonably should have discovered—the degraded
shoulder, the DOT had no discretion over whether or when to act, as the duty to
repair was immediate and mandatory. Such interpretation is reasonable in the
context of roadway maintenance, where public safety is at stake. As Peterson
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confirmed, a condition of this nature would have required warning signs for passing
motorists until repairs could be completed.
[¶61.] The majority opinion also asserts that Hieb’s choice to perform routine
inspections is a discretionary act. However, Hieb stated at his deposition that he
drove that section of Highway 281 approximately every week. As stated above,
Wulf provides that once the DOT adopts maintenance guidelines and certain
conditions are satisfied, the remaining obligation is ministerial. See id. ¶ 32, 669
N.W.2d at 146–47. Performance Standard Function 2158 provides that “routine
inspections will identify needs related to gravel shoulder maintenance.”
[¶62.] In his deposition testimony, Hieb stated “that based on his experience,
the appropriate standard [for routine inspections] was to drive the roads [within his
territory] once a week to determine their condition.” When Hieb discovered—or
reasonably should have discovered—the dangerous condition, per his own testimony
of driving that section of Highway 281 approximately once per week, he had a
ministerial duty to repair the condition. Hieb may retain discretion regarding the
manner of repair, but the controlling documents and context call for prompt repair,
leaving no option or discretion to instead take no action at all. Hieb is unlike the
maintenance supervisor in Wulf, where the Court explained that his actions were
discretionary, as the statute did not contemplate “when or how often [the
supervisor] was to inspect . . . Highway 42.” Id. ¶ 30, 669 N.W.2d at 146. Hieb
affirmatively adopted and carried out weekly inspections, making the dispositive
issue not whether he had discretion in inspection timing, but rather whether he had
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the ministerial duty to act once a dangerous condition was or should have been
observed.
[¶63.] At minimum, this case presents a question of fact inappropriate for
summary judgment. A reasonable fact finder could conclude that the shoulder drop-
off exceeded DOT’s own repair thresholds, DOT employees knew or should have
known of the condition, DOT policy required repair once those conditions existed,
and the failure to act was a breach of a ministerial duty. See Weiland v. Bumann,
2025 S.D. 9, ¶ 36, 18 N.W.3d 148, 158; SDCL 15-6-56(c) (providing that summary
judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law).
[¶64.] “[H]ighway repair is generally considered to be ministerial in nature”
unless such functions “involve actual planning and design, policy decisions, or
actions that are not subject to an established standard.” McGee, 2023 S.D. 66, ¶ 36,
1 N.W.3d at 626 (citations omitted). Here, Sarah is not seeking to hold the DOT
accountable for highway repair and maintenance functions that involve planning,
design, or policy decisions not subject to an established standard. Rather, Policy
Number OM-2002-09 and Performance Standard Function 2158, along with the
other controlling documents, establish a clear ministerial duty. This case simply
asks whether government employees may be held accountable when they fail to
execute a safety policy their own agency adopted to protect the motoring public.
Because I would hold that Policy Number OM-2002-09 and Performance Standard
Function 2158 create a ministerial duty once objective conditions requiring repair
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exist under Wulf, I would affirm the circuit court’s denial of summary judgment on
sovereign immunity grounds.
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