ROSE, Justice.
This appeal-resolved in the district court by judgment granting appellees’ motion to dismiss as to both defendants, the State of Wyoming and Anthony Malovich-concerns a claim for damages allegedly suffered as a result of an offer of employment which never ripened. It poses the question of whether or not-given the posture of this case-the State of Wyoming and Mr. Malo-vich,1 who made the job offer, enjoy immunity as a matter of law.
[1044]*1044Plaintiffs filed a negligence action against the State and state official, Anthony Malovich, Director of the Wyoming Division of Criminal Investigation,2 in the latter’s individual capacity. The district court, on the ground of sovereign immunity, dismissed the complaint against both defendants. We will affirm the dismissal of the suit against the State,3 but reverse the dismissal against the employee, Malovich, and remand that aspect of the case for further proceedings.
According to the plaintiffs-appellants’ statement of the facts-which the defendants-appellees adopt-Jess and Susan Oyler both left jobs in Rawlins and moved to Cheyenne in reliance upon a job offer extended to Mr. Oyler by Mr. Malovich. Upon reporting to work, Mr. Oyler was first told that red tape was delaying the start of his employment. After Oyler had been waiting in Cheyenne for several days to begin his job, Malovich denied that he had ever offered employment to Oyler. Both of the Oylers managed to find work in Cheyenne, but at lower salaries than their jobs in Rawlins (and, in Mr. Oyler’s case, lower than the salary promised for the State job). They sued to recover their financial loss resulting from the move made in reliance upon the Malovich job offer.
Disposition
The trial court dismissed the amended complaint on the ground that it did not state a claim upon which relief could be granted since both parties enjoyed sovereign immunity.
DISMISSAL AS TO DEFENDANT-STATE OF WYOMING
Appellants correctly urge that the State has, through legislative enactment, waived its sovereign immunity “to the extent of the limits of liability insurance carried by the governmental entity,” according to the provisions of § l-39-118(b), W.S.1977, 1980 Cum.Supp., which is substantially the same as the section it replaced.4 Appellants further argue that the State’s liability insurance, in force during the incident complained of here, covered their claim and thus, to the extent of that coverage, sovereign immunity is not available as a defense to this action.5
We cannot agree that the injury complained of is covered by insurance. The policy provides coverage for
“all sums which the Insured shall become legally obligated to pay as damages because of negligent acts, errors, or omissions of the paid employees of the law enforcement agency named in the declaration as follows:
[1045]*1045“Coverage A-Personal Injury
“Coverage B-Bodily Injury
“Coverage C-Property Damage”
However, the policy defines “Personal Injury” as follows:
“ ‘Personal Injury’ means false arrest, erroneous service of civil papers, false imprisonment, malicious prosecution, assault and battery, libel, slander, defamation of character, violation of property rights or deprivation of any rights, privileges, or immunities secured by the Constitution and laws of the United States of America, or Canada, for which law enforcement officers may be held liable.... ”
The plaintiffs’ “injury” does not, in our opinion, fall within this definition, and we are not presented with authority which would indicate that it does. Furthermore, the plaintiffs’ alleged “injury” does not lie within the policy’s definition of “property damage.”
Appellants argue that there are material factual and legal questions relating to the insurance policy which were not and could not be appropriately resolved by a motion to dismiss, and, in this connection, the transcript of the hearing on the motion discloses that the State did not produce the policy until the day of the hearing on the motion. Even so, the policy was considered and the court must have found that it does not cover the alleged injury, in view of the fact that the Order Granting Motion to Dismiss recites that the complaint did not state a claim upon which relief could be granted since both defendants enjoyed sovereign immunity.
WITH RESPECT TO THE IMMUNITY OF MALOVICH6
Abrogation of Governmental Immunity Introduetorily, we acknowledge that in Wyoming the state of the law of governmental immunity in related areas at all times relevant hereto was as follows:
Immunity is removed as a defense to tort actions at all levels of government below the State itself. Oroz v. Board of County Commissioners of Carbon County, Wyo., 575 P.2d 1155, 1158 (1978). In so holding, we determined that the genesis of the doctrine of governmental immunity is in Russell v. The Men of Devon, 2 Term. Rep. 667, 100 Eng.Rep. 359 (1788), an old English case which is almost universally credited with being the mother of the concept. We reasoned that if immunity could be court-created, it could be court-abrogated.7
State Immunity Retained
We have retained immunity from tort actions for the State in any amount not covered by insurance unless the State’s permission to sue has been granted. This was done on the theory that state immunity is a creature of the constitution and cannot be court-abrogated.8 Worthington v. State, Wyo., 598 P.2d 796 (1979).
State Employee Liability
9
This leaves us with a misty and hazy area yet to be clarified and defined-namely, what to do with the question which asks whether or not, and under what circumstances, the State’s employees are or are not immune from tort liability. We paid [1046]*1046glancing recognition to this fuzzy area of law when, in Retail Clerks Local 187 v. University of Wyoming, Wyo., 531 P.2d 884 (1975) (having held that suit against the state university administrative officials and board members in their official capacity was a suit against the State), we said that the immunity question in a suit against these board and administrative officials individually was not so clear. We quoted the United States Supreme Court, where the Court said:
“ ‘As to what is deemed a suit against a state, the early suggestion that the inhibition might be confined to those in which the state was a party to the record [citations] has long since been abandoned, and it is now established that the question is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record [citations].’ In re State of New York, 256 U.S. 490, 500, 41 S.Ct. 588, 590, 65 L.Ed. 1057.”
We also cited Anderson v. Argraves, 146 Conn. 316, 150 A.2d 295, 297; and Stucker v. Muscatine, 249 Iowa 485, 87 N.W.2d 452, 456.
We then quoted the following from Schwing v. Miles, 367 Ill. 436, 11 N.E.2d 944, 947 (1937), 113 A.L.R. 1504:
“ ‘ * * * While a suit against state officials, and, in particular, the Director of the Department of Public Works and Buildings, is not necessarily a suit against the state, the constitutional inhibition cannot be evaded by making an action nominally one against the servants or agents of the state when the real claim is against the state itself, and it is the party vitally interested. * * 531 P.2d at 887.
At common law, the principal and agent are both liable for their tortious acts-the agent because he or she is the wrongdoer-the principal because of wrongdoing or by dint of the doctrine of respondeat superior. In the realm of state torts, respondeat superior is not the exception to immunity but, rather, is inherently rejected by it.10 Even so, in certain instances, such as some of those hereinafter discussed or where immunity has been abrogated (as in Wyoming with governmental entities other than the State itself, Oroz, supra), the public employee may be liable for wrongdoing.
Bad Faith, Intentional Torts, False Imprisonment and the Civil Rights Act
At the outset, any classification of those deeds which are not immune from public employees’ tort liability must first recognize acts done in bad faith, intentional torts, false imprisonment and violation of rights under the Civil Rights Act, 42 U.S. C.A. § 1983. Minge, supra, fn. 10, at pages 247-248, puts it this way:
“. . . There is also probably no immunity for acts done in bad faith, intentional torts or false imprisonment. [Davis, Administrative Law §§ 26.03, 26.04 (Supp. 1970). See also Handler & Klein, The Defense of Privilege in Defamation Suits Against Government Executive Officials, 74 Harv.L.Rev. 44 (1960); Van Alstyne, A Study Relating to Sovereign Immunity 406-11 (Calif. Law Revision Comm’n 1963) (false imprisonment); Restatement (Second) of Torts §§ 35, 41 (1965) (false imprisonment).] Although no Wyoming cases have discussed liability in these last three areas, in one case a sheriff’s surety was held liable for a 22 hour, illegal search of the plaintiff’s premises. [Lynch v. Burgess, 40 Wyo. 30, 273 P. 691 (1929).] Presumably the surety was only liable if the sheriff was liable and it would appear that the sheriff was guilty of false imprisonment. In another case the court said that a deputy-sheriff who effects an irregular and illegal abduction does so in his role as a private individual. [Kingen v. Kelley, 3 Wyo. 566, 28 P. 36 (1891).] Presumably, acting as a private individual he would be liable. [Cf. Ellis v. Wyoming Game & Fish Comm’n, 74 Wyo. 226, 286 P.2d 597 (1955).] Finally, it should be [1047]*1047noted that under the Federal civil rights statutes any state or local officer or employee, other than a judge or a legislator, who is responsible for depriving a person of a right, privilege or immunity secured by the Constitution and laws of the United States may be liable to that person in an action for damages. [42 U.S.C. § 1983 (1970). See also 42 U.S.C §§ 1985, 1986 (1970) ... Monroe v. Pape, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492 (1961) ... Tenney v. Brandhove, 341 U.S. 367, 71 S.Ct. 783, 95 L.Ed. 1019 (1951) and Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213, 18 L.Ed.2d 288 (1967) ...] Litigation arising out of the notorious incident at the University of Wyoming involving the dismissal of fourteen Blacks from the football squad was based, in part, upon this Federal cause of action. [ Williams v. Eaton, 443 F.2d 422 (10th Cir. 1971)]. (Bracketed matter from author’s footnotes.)
The Civil Rights Act, 42 U.S.C.A. § 1983, provides:
“Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.”
Other provisions of the Act created civil liability for denial of equal protection (42 U.S.C.A. § 1985) and created criminal liability for designated willful action (42 U.S. C.A. §§ 1987-1995).
There is, of course, no allegation of the violation of the plaintiffs’ civil rights present in their complaint in this case, but we take note of the civil-rights provision as one of many examples of areas where immunity is not available as a defense to an action where public employees are charged with tortious conduct.11
Employees Acting in the Absence of or in Excess of Their Authority
One of the areas in which courts find the identity of the state and public officials divisible is where state officers have acted without or in excess of their authority and, therefore, their acts are not regarded as being those of the state for immunity purposes. Where a public officer acts in the absence of or in excess of his authority, he may be held personally liable for his wrongdoing. In such circumstances, he is viewed by courts to be acting individually and not in his official capacity. The general rule is stated in 63 Am.Jur.2d, Public Officers and Employees, § 291, Acts in excess of authority, pp. 801-802, as follows:
“The immunity of the sovereign from suit does not protect public officers from personal liability for their wrongful acts in excess of their official authority, and an officer-executive, administrative, quasi-judicial, ministerial, or otherwise-who acts outside the scope of his jurisdiction and without authorization of law may thereby render himself amenable to personal liability in a civil suit. If he exceeds the power conferred on him by law, he cannot shelter himself by the plea that he is a public agent acting under color of his office, or that the damage was caused by an act done or omitted under color of office, and not personally. In the eye of the law, his acts then are wholly without authority. In this connection a careful distinction must be drawn between erroneous acts in the exercise of jurisdiction or authority and acts in excess of jurisdiction .... ” (Footnote references omitted and emphasis supplied.)
[1048]*1048In Schwing, supra, which we quoted in Retail Clerks Local 187, supra, the court stated the exception to the general rule of state officers’ non-liability where the opinion says:
“... On the other hand, where the action at law or suit in equity is maintained against a state officer or the director of a department on the ground that, while claiming to act for the state, he violates or invades the personal and property rights of the plaintiff under an unconstitutional act, or under an assumption of authority which he does not have, such suit is not against the state. Noorman v. Department of Public Works and Buildings, 366 Ill. 216, 8 N.E.2d 637, supra; Fitts v. McGhee, 172 U.S. 516, 19 S.Ct. 269, 43 L.Ed. 535; United States v. Lee, 106 U.S. 196, 1 S.Ct. 240, 27 L.Ed. 171; White Eagle Oil & Refining Co. v. Gunderson, 48 S.D. 608, 205 N.W. 614, 43 A.L.R. 397. The presumption obtains that the state, or a department thereof, will not, and does not, violate the Constitution and laws of the state, but that such violation, if it occurs, is by a state officer or the head of a department of the state, and such officer or head may be restrained by proper action instituted by a citizen. Tindal v. Wesley, 167 U.S. 204, 17 S.Ct. 770, 42 L.Ed. 137; Noorman v. Department of Public Works and Buildings, supra; Joos v. Illinois National Guard, 257 Ill. 138, 100 N.E. 505, 43 L.R.A., N.S., 1214, Ann.Cas.1914A, 862.... ” 367 Ill. 436, 11 N.E.2d at 947. (Emphasis supplied.)
Nature of the Office: Discretionary and Ministerial Powers and Duties
Where negligence is charged, the immunity of a public officer or employee may depend upon the nature of the duties performed, that is, whether the act is discretionary or ministerial. Sportique Fashions, Inc. v. Sullivan, D.C.Cal., 421 F.Supp. 302 (1976); Simon v. Heald, Del.Super., 359 A.2d 666 (1976); Walkowski v. Macomb County Sheriff, 64 Mich.App. 460, 236 N.W.2d 516 (1975); Johnson v. State, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968); Carter v. Carlson, 144 U.S.App.D.C. 388, 447 F.2d 358 (1971), on remand 56 F.R.D. 9 (1972), rev’d in part on other grounds, sub nom., District of Columbia v. Carter, 409 U.S. 418, 93 S.Ct. 602, 34 L.Ed.2d 613 (1973), reh. den. 410 U.S. 959, 93 S.Ct. 1411, 35 L.Ed.2d 694 (1973), vacated in part on other grounds 160 D.C.D.C. 148, 489 F.2d 1272 (1974); Wu v. Keeney, D.C. D.C., 384 F.Supp. 1161 (1974); Watson v. St. Annes Hospital, 68 Ill.App.3d 1048, 25 Ill. Dec. 411, 386 N.E.2d 885 (1979); and Cerino v. Township of Palmer, Pa.Super., 401 A.2d 770 (1979). Immunity generally extends to discretionary acts of officials but not to those that are ministerial.
In ascertaining whether an act is discretionary, the judicial (decision- or policy-making) character of the officer’s act rather than the judicial (decision- or policy-making) character of his office furnishes the basis of his exemption if, in fact, he is exempt.12
A public official’s duty is ministerial when
[1049]*1049“... it is absolute, certain, and imperative, involving merely the execution of a set task, and when the law which imposes it prescribes and defines the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion. More specifically, where the law imposes on the officer the performance of ministerial duties in which a private individual has a special, direct, and distinctive interest, the officer is liable to such individual for any injury which he may proximately sustain in consequence of the failure to perform the duty at all, or to perform it properly.” (Footnote references omitted.) 67 C.J.S. Officers § 208, subsection c, “Ministerial Powers and Duties, p. 686.
See, also, quotations from Denver Buick, Inc. v. Pearson, Wyo., 465 P.2d 512 (1970); and Spaniol Ford, Inc. v. Froggatt, Wyo., 478 P.2d 598 (1970), infra.
The United States Court of Appeals confronted the ministerial-discretionary issue in Jackson v. Kelly, 10 Cir., 557 F.2d 735 (1977), and held that an Air Force physician’s operation technique could be ministerial in nature and, thus, not immune. In that case, Chief Judge Lewis, writing for the court, • said that the physician’s treatment of the patient did not involve governmental discretion and that the physician was not entitled to assert the doctrine of official immunity. The court said that the test for immunity is not mechanical and immunity is not the same for all officials for all purposes. While recognizing the needs of both plaintiff and the public’s right to have public officials free of harassment from litigation, the court went on to explain that the determination of whether given fact situations constitute immunity for the particular official involved required careful inquiry into the alleged wrongful acts and scope of the accused official’s duties.
In its decision, the court overruled any prior decisions granting absolute immunity to defendants who could not pass the discretionary-functions test. Referring to the recent United States Supreme Court case of Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 2028, 36 L.Ed.2d 912 (1973), Judge Lewis observed that the Court said in Doe, where the immunity of the public printer and the superintendent of documents for Congress was at issue:
“... Plaintiffs alleged these officials invaded their privacy by publishing certain derogatory documents for use in Congress and distribution elsewhere. The Court found the officials were acting within the scope of their duties but their duties were not discretionary
The court held official immunity does not automatically attach to any conduct expressly or impliedly authorized by law, unless the official was exercising a discretionary function. This rule is appropriate because the effective administration of policies of government is not severely impaired if officials with ministerial duties are answerable in damages for failure to perform obligatory functions with reasonable care.
“Doe further indicates that when an official acting in a nondiscretionary capacity claims immunity, the Supreme Court
‘has advised a discerning inquiry into whether the contributions of immunity to effective government in particular contexts outweigh the perhaps recurring harm to individual citizens .... ’
412 U.S. at 320, 93 S.Ct. at 2028. Thus, the court mandates the use of the discretionary function test, and a direct balancing of the policies underlying the immunity doctrine in the context of each fact situation. See, e. g., Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (qualified immunity granted to school board officials who exercise discretion); Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (qualified immunity for Governor and executive officers of state exercising discretionary responsibilities).” 557 F.2d at 737.
It can, therefore be said that-absent civil-rights complaints, acts done in bad faith, intentional torts or false imprisonment-where the employee is performing discre[1050]*1050tionary acts which are not in excess of authority and are within the scope thereof, he or she will not be liable for the manner in which discretion is exercised. Immunity flows from the notion that, in order that government may function effectively and efficiently, officers’ decision-making responsibilities should remain free from threat of suit for redress of tortious activity. Again, assuming an absence of civil-rights complaints, acts done in bad faith, intentional tort or false imprisonment, where the employee is functioning within the scope of his authority and not in excess thereof, and where he negligently performs or negligently fails to perform ministerial acts imposed by law or legal authority, he or she will not be immune.
A sense of the protection which the law affords the discretionary functions of public officials, and particularly the judiciary, can be gleaned from 3 Davis, Administrative Law Treatise, ch. 26, § 26.01, where the author says:
“The background for the law conferring immunity upon administrative officers exercising discretionary powers is the law concerning immunity of judges. The Supreme Court early held: ‘It is a general principle of the highest importance to the proper administration of justice that a judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to himself... . The principle ... obtains in all countries where there is any well-ordered system of jurisprudence.’ The doctrine is rigorously applied in recent times, with the explanation that ‘The purpose of the rule which exempts public officers from the harassment of private suits for damages on account of the performance of their public duties, is, secondarily, for their protection, in order that its primary objectives may be secured, i. e., a fearless administration of the law.’ ...” (Footnote reference omitted.)
We were confronted with the issue of a state judicial official who was alleged to have acted in excess of his authority in Linde v. Bentley, Wyo., 482 P.2d 121 (1971). In that case, when a non-lawyer purported to represent himself and others before the courts of this state, - a district judge was sued for issuing an order instructing the clerk of the court to strike all the layman’s pleadings from the record and to not accept for filing further pleadings and motions until they had been reviewed by the judge.
Finding that the trial judge did not act outside his jurisdiction because of a statute extending the judge’s supervisory authority over clerks of court, and even though the plaintiff had not urged that the judge did not have jurisdiction over the subject mat-' ter (and despite the warm protective blanket of immunity in which the law has safely wrapped the judiciary), we were, nevertheless, moved to observe:
“As to plaintiff’s third point, it has long been the rule that courts of general jurisdiction are exempt from liability of civil actions for their official acts even if in excess of their jurisdiction-although a distinction is observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject matter. Bradley v. Fisher, 80 U.S. (13 Wall.) 335, 351-352, 20 L.Ed. 646; Randall v. Brigham, 74 U.S. (7 Wall.) 523, 536, 19 L.Ed. 285; 46 Am.Jur.2d Judges § 72....” 482 P.2d at 123.
We know of no Wyoming case authority which discusses the question of governmental immunity where the officer acts under an “assumption of authority which he does not have,” Sehwing, supra, i. e., where he purports to act in the absence of jurisdiction over the subject matter.
We look, then, to other areas for a sense of the balancing process in which courts must indulge where they are charged with finding immunity for the administrative official so that he may engage in “fearless administration of the law,” Davis, Administrative Law, supra, while, at the same time, providing protection from those officers who, under the guise of immunity, work their wrongful ways against those who deserve neither their wrath nor their negligence.
[1051]*1051In Price v. State Highway Commission, 62 Wyo. 385, 167 P.2d 309, 312 (1946), where the plaintiff struck a snowplow and sued the Commission, the State Highway Superintendent and the driver of the plow for negligent operation of the vehicle, we decided that, since the individuals were operating within the scope of their employment and authority, they partook of the State’s immunity. In support of our holding, we cited 43 Am.Jur. 85, § 273 from the 1942 encyclopedia [now 63 Am.Jur.2d, Public Officers & Employees, § 288], where it is said:
“ ‘As a rule a public officer, whether judicial, quasi-judicial, or executive, is not personally liable to one injured in consequence of an act performed within the scope of his official authority, and in the line of his official duty. In order that acts may be done within the scope of official authority, it is not necessary that they be prescribed by statute, or even that they be specifically directed or requested by a superior officer, but it is sufficient if they are done by an officer in relation to matters committed by law to his control or supervision, or that they have more or less connection with such matters, or that they are governed by a lawful requirement of the department under whose authority the officer is acting.’ ”
This rule does not take into account the difference between decision-making and ministerial functions, which difference is basic to a public employee’s liability inquiry. While we did not discuss the ministerial v. discretionary feature in Price, supra, we did compare ministerial with “governmental” function in Osborn v. Lawson, Wyo., 374 P.2d 201, 203 (1962), where we said:
“The operation of snowplows along the highways of this state is practically a necessity. It is a duty performed on behalf of the public, and so we think that we must hold that the operation of a snowplow in the case at bar was a governmental duty rather than ministerial. Mower v. Williams, 402 Ill. 486, 84 N.E.2d 435; Shirkey v. Keokuk County, 225 Iowa 1159, 275 N.W. 706; Genkinger v. Jefferson County, 250 Iowa 118, 93 N.W.2d 130; 5 Blashfield, Cyclopedia of Automobile Law and Practice, § 2889, p. 28 (Perm. Ed.).”
This is an unfortunate comparison. The proper backdrop against which a public official’s liability must be set is ministerial v. discretionary — not ministerial v. governmental!! Surely, it is obvious that an official’s act may be ministerial and governmental, but it cannot be ministerial and discretionary.13
Although it is admittedly difficult to know, Price, supra, may find its rationale in the concept which says that where the public employee is performing a function within the ambit of his authority and the risk of injury to the public is inherent in the activity, the employee ought not be required to bear the risk 14 and, therefore, his or her negligence-if any-will be regarded as deci-sional in nature and hence immune. Furthermore, the Price snowplow operator may be regarded as acting under orders from his superior who was functioning within the scope of his authority in pursuit of immune decision-making powers. In this latter context, Price and Osborn, supra, are similar.
John D. Charles was killed when the car he was driving collided head on with a snowplow working on the interstate highway against traffic and which was, when struck, obscured by a cloud of snow created by a passing truck. Charles’ estate and the owner of the car Charles had been driving sued Lawson, the snowplow operator. Lawson, employed by the highway depart[1052]*1052ment, moved for summary judgment on the dual grounds that he enjoyed the State’s immunity and that he had not been negligent. He supported his motion with an affidavit from the chief engineer of the state highway department. The affidavit asserts that Lawson, in driving the snowplow against traffic, was following established highway commission procedures. No counteraffidavit was filed and the district court awarded summary judgment to Lawson on the ground that he enjoyed immunity from suit. On appeal, we said that Price, supra, supported the district court’s judgment, but, in so holding, we found it appropriate to survey the law in this area. The opinion acknowledged Palmer v. Marceille, 106 Vt. 500, 175 A. 31 (1934), in which the plaintiff’s car collided with a car negligently parked on the travelled portion of the road by a state highway employee. The Vermont court held that a highway employee was not exempt from personal liability for negligence merely because he was an employee performing governmental work. However, we dismissed that line of authority with this rationale:
“The rule of the Vermont and other cases just mentioned has not, we think, any application in the case at bar. It must in any event be limited in a case such as before us to a situation in which the employee or officer of the highway department acts independently of and not under the direction and control of the highway department ... It is said in 4 A.L.I. Restatement, Torts, § 888 (1939), as follows:
“ ‘ * * * While there is no immunity by the mere fact that one is a public officer, there are many situations where a person may be protected by the command of a superior.. . . ’
* * ⅜ ⅜ * *
“. . . In any event . . . the negligence, if any, in the operation of the snowplow herein was the negligence of the highway commission by reason of the fact that it prescribed the method of operating the snowplow. The operator of that snowplow, whether we call him an officer or employee makes little difference, followed in his operation the directions prescribed by his superior. He was compelled to do so or quit.... ” Osborn, supra, 374 P.2d at 205.
Osborn does not, therefore, hold that a state employee, while engaged in state work, is automatically entitled to immunity from personal liability for negligent acts. Osborn stands for the isolated notion that a public employee, even working under negligent supervision, where the risk of public injury is inherent, will enjoy immunity from tort liability. It does not follow that if the employee made a negligent mistake-absent negligent instruction-the employee could not be held liable as performing an unprotected ministerial duty.
Neither Price nor Osborn can be viewed as holding that a negligent public employee performing purely imperative or ministerial duties will be immune from their negligent acts.
In Denver Buick and Spaniol Ford, supra, the county clerks were sued for the negligent performance of their official duties. In those cases, while some loose usage of the terms “governmental,” “ministerial,” and “proprietary” may have been employed, the sense of what we said is that the nature of the duties in which the clerks were engaged and out of which the alleged tortious acts evolved were discretionary rather than ministerial.15 In both cases, we indicated [1053]*1053that the clerks might be liable had they been performing purely ministerial acts. We did not, however, offer any rationale for determining how to identify discretionary or ministerial functions.
We here observe and emphasize that in determining the presence or absence of public-employee immunity, where the employee is charged with negligence, the language which should properly be employed is ministerial v. discretionary — not ministerial v. governmental (as in Osborn).
Holding
Pitting the absence of factual development in this case against the ministerial-discretionary test, it must be clear that the district judge, when he granted a motion to dismiss, thus foreclosing the development of an evidentiary record, held that Mr. Malo-vich was immune from tort liability as a matter of law-simply because he was a State-employed public officer.
According to the authorities cited herein, it must be just as clear that there are various fathomable fact circumstances which could result in Mr. Malovich’s liability, even though he is a State officer with subject-matter jurisdiction over the act in question. Given the opportunity, the plaintiffs might have been able to show that Malovich acted maliciously and wantonly and in bad faith, resulting in plaintiffs’ damages, in which case immunity would not serve as a defense. The Oylers might conceivably have been able to introduce evidence to the effect that, notwithstanding the applicable statutes giving Malovich jurisdiction over the subject matter of hiring and firing, nevertheless, because of budgetary, personnel or other reasons, Mr. Malo-vich was acting in excess of his authority. In such case, immunity would not reach out to save the defendant from liability. It might be shown that the particular function in which Malovich was engaged, and of which the Oylers complain, was purely ministerial in its nature and that the defendant was negligent in the performance thereof. Malovich could, in this fact context, be liable.
We do not even intimate that Mr. Malovich has committed any act from which liability will flow. We don’t know, and the trial court could not know this, because there is no record. We only say that there are circumstances in which a public officer can be liable, and there is nothing on the face of the pleadings or in supporting affidavits (as was the case with the other defendant, The State of Wyoming) which-at this stage-permits any court or fact finder to draw a liability conclusion one way or the other. Since the court foreclosed the development of the record by sustaining appel-lees’ motion to dismiss-the matter must be reversed and remanded for further proceedings not inconsistent with this opinion.
Affirmed as to The State of Wyoming; reversed and remanded as to Malovich.