Estate of Sanborn v. Peterson

#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

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ARGUED
OCTOBER 8, 2025
OPINION FILED 03/04/26
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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 amendable 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 . . .)
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[¶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.

(Emphasis added.)

[¶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.

(Emphasis added.)

[¶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.

(Emphasis added.)

[¶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.

(Emphasis added.)

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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 . . .)
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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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