McGee v. Spencer Quarries, Inc.

#29901-aff in pt & rev in pt-PJD & SRJ
2023 S.D. 66

IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA

****

AUSTIN MCGEE, Plaintiff and Appellee,
v.

SPENCER QUARRIES, INC.,
a South Dakota Corporation, Defendant,

and

SOUTH DAKOTA DEPARTMENT OF
TRANSPORTATION; KENT GATES,
as an employee of the South Dakota
Department of Transportation; and KRIS
ROYALTY, as an employee of the South
Dakota Department of Transportation, Defendants and Appellants.

****

APPEAL FROM THE CIRCUIT COURT OF
THE FIRST JUDICIAL CIRCUIT
BRULE COUNTY, SOUTH DAKOTA

****

THE HONORABLE BRUCE V. ANDERSON
Judge

****

JAMES E. MOORE
JACOB R. SCHNEIDER
CHRISTOPHER A. DABNEY of
Woods Fuller Shultz & Smith, P.C.
Sioux Falls, South Dakota Attorneys for defendants and
appellants.

****

ARGUED
OCTOBER 5, 2022
OPINION FILED 12/20/23
****

RONALD A. PARSONS, JR.
STEVEN M. JOHNSON of
Johnson, Janklow,
and Abdallah, LLP
Sioux Falls, South Dakota

MICHAEL F. MARLOW of
Marlow, Woodward & Huff, Prof. LLC
Yankton, South Dakota Attorneys for plaintiff and
appellee.
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DEVANEY, Justice, and JENSEN, Chief Justice

[¶1.] Justice DeVaney delivers the majority opinion on Issues 1, 2,

and 3(b). Chief Justice Jensen delivers the majority opinion on Issue 3(a).

[¶2.] DEVANEY, Justice, writing for the Court on Issues 1, 2, and

3(b).

[¶3.] After Austin McGee rolled his pickup while driving on a portion of

Highway 45 that was being resurfaced, he brought suit against the contractor

responsible for the resurfacing project and against the South Dakota Department of

Transportation (DOT) and several DOT employees. Relevant here is his suit

against the DOT and its employees. McGee claims that the crash and his injuries

resulted from the DOT employees’ negligent failure to inspect and to ensure the

contractor’s compliance with the DOT standards governing the project, the

requirements of the construction contract, and industry customs and practices. The

DOT moved for summary judgment, asserting multiple defenses, including that

sovereign immunity bars McGee’s suit. The circuit court denied the motion, and

this Court granted the DOT’s petition for intermediate appeal.

[¶4.] We affirm the circuit court’s decision rejecting the DOT’s claims that

McGee’s suit is barred under the law governing a third-party beneficiary’s standing

to seek damages for a breach of contract and that McGee failed to plead an

actionable duty. We further affirm the court’s decision denying the DOT’s motion

for summary judgment on the question whether the DOT’s Standard Specification

330.3(E) set forth a ministerial duty not protected by sovereign immunity.

However, because neither the Federal Highway Administration’s Manual on

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Uniform Traffic Control Devices (MUTCD) nor a document the parties refer to as

“the Hot Mix Handbook” set forth ministerial duties for the actions at issue in this

case, we reverse the portion of the court’s denial of summary judgment relating to

the precautionary measures McGee alleges the DOT should have taken and remand

for further proceedings consistent with this opinion.

Factual and Procedural Background

[¶5.] On Saturday morning, June 30, 2018, McGee was driving his pickup

on Highway 45 north of Platte, South Dakota. His brother was seated in the front

passenger seat and there was light precipitation, making the roadway wet.

According to McGee, he lost control of his pickup after unexpectedly encountering

exposed tack on the highway. Tack coat is a liquid asphalt emulsion that is applied

between layers of asphalt. McGee claimed that after encountering the exposed tack,

he could not maintain control of his pickup and it left the road and rolled. As a

result of the accident, McGee suffered serious injuries, including permanent

paraplegia.

[¶6.] On October 2, 2018, McGee brought suit against Spencer Quarries,

Inc., the company with whom DOT had entered into a contract for the resurfacing

project at issue. McGee asserted that tack coat is known in the industry to be a

hazard to the traveling public and alleged that Spencer Quarries negligently left

approximately 1,400 feet of exposed tack coat on the highway without posting

proper warnings and without placing sand, gravel, or other traction aid on top of the

exposed tack-coated surface. McGee amended his complaint in January 2020,

adding as additional defendants the DOT and employees Jay Peppel, Kent Gates,

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and Kris Royalty. This appeal concerns McGee’s allegations against the DOT and

its employees (collectively referred to as the DOT unless a reference to an individual

is necessary).

[¶7.] The DOT and Spencer Quarries entered into a contract in October

2017 for the resurfacing of a segment of Highway 45, including where McGee’s

accident occurred. The contract included “Plan Documents” governing Spencer

Quarries’ execution of the resurfacing project. The contract also incorporated the

DOT’s Standard Specifications for Roads and Bridges 2015 (Standard

Specifications), and these Standard Specifications incorporated by reference the

MUTCD. Peppel was assigned as the “Area Engineer” to oversee the contract, and

he assigned Gates as the “Project Engineer” to supervise the project. Royalty, a

road technician, was the “Project Inspector” tasked with inspecting Spencer

Quarries’ work each day.

[¶8.] In his amended complaint, McGee alleged that “[t]he Plan Documents,

Standard Specifications, and other pertinent resources state, define, and delineate

the DOT’s duties regarding the Project.” He then asserted that the DOT was

“required to follow the Plan Documents, the Standard Specifications, and industry

custom and practice on the Project.” In particular, he quoted the language in

Standard Specification 4.5 that required Spencer Quarries to “keep the portion of

the project used by public traffic in a condition that will adequately and safely

accommodate traffic.” McGee also noted the language in Standard Specification

5.15 that required Gates to notify Spencer Quarries of its noncompliance with

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Standard Specification 4.5 and to maintain the project for the safety of the traveling

public if Spencer Quarries did not remedy the unsatisfactory condition.

[¶9.] McGee further alleged that Spencer Quarries did not comply with

Standard Specification 330.3(E), which provides that “[t]ack application ahead of

mat laydown . . . shall not exceed the amount estimated for the current day’s

operation unless ordered or allowed by the Engineer.” He noted that the DOT “did

not knowingly order or allow Spencer Quarries to leave exposed tack coat” on the

highway on June 30, 2018, the date of his accident. He also claimed that the DOT

“knew or should have known the exposed tack coat on the asphalt road surface at

the crash scene on June 30, 2018 reduced friction available to vehicles traveling on

the surface.” He further asserted that industry standards dictate that vehicle

traffic should generally not be allowed to travel on exposed tack, and that if

allowing travel is necessary, proper precautions must be taken, such as reducing

the posted speed limit or sanding the surface. According to McGee, the DOT failed

to inspect, ensure, or inquire about Spencer Quarries’ plan to safely and adequately

accommodate traffic traveling over the exposed tack. McGee also asserted that the

DOT failed to notify Spencer Quarries of its obligation under the Plan Documents

and Standard Specifications to display traffic control signs, specifically, a “Fresh

Oil” sign.

[¶10.] In regard to the negligence claims against the particular DOT

employees, McGee claimed that Peppel breached duties owed by not suspending

work improperly performed by Spencer Quarries, by failing to reject Spencer

Quarries’ defective work on the project, and by not remediating Spencer Quarries’

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failure to correct the unsafe conditions for the traveling public. McGee claimed that

Gates breached his duties to notify Spencer Quarries of its non-compliance with the

Standard Specifications, Plan Documents, and contract; to ensure that Spencer

Quarries adequately and safely accommodated the traveling public; and to maintain

the project for the safety of the traveling public as required by Standard

Specification 5.15. In regard to Royalty, McGee alleged that he breached his duties

to inspect Spencer Quarries’ work, recognize that it did not comply with the

Standard Specifications and Plan Documents, and reject it as non-compliant. In

McGee’s view, the DOT is vicariously liable because Peppel, Gates, and Royalty

were, at all material times, under the DOT’s supervision, employ, and control when

they breached their respective duties.

[¶11.] The DOT, Peppel, Gates, and Royalty denied liability and filed a

motion to dismiss, asserting that McGee failed to identify a legal duty owed to him.

The DOT further claimed that even if such a duty existed, sovereign immunity

would bar McGee’s claims because the acts complained of were discretionary, rather

than ministerial. In response, McGee acknowledged that he “did not allege that a

general statute created a ministerial duty”; rather, he asserted that the Standard

Specifications, Plan Documents, and MUTCD created mandatory duties. The

circuit court granted the motion to dismiss as to employee Peppel because the court

viewed his acts as discretionary, but the court denied the motion as to the DOT,

Gates, and Royalty. The DOT filed a petition to this Court for an intermediate

appeal of the circuit court’s ruling, but we denied the petition.

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[¶12.] After the parties conducted additional discovery, the DOT filed a

motion for summary judgment, again asserting that sovereign immunity bars

McGee’s claims. The DOT also claimed that even if sovereign immunity does not

apply, McGee’s claims fail as a matter of law because McGee did not plead an

actionable duty. The DOT further asserted that McGee could not seek damages

from the DOT because he is not a third-party beneficiary of the contract between

the DOT and Spencer Quarries. The circuit court held a hearing on the motion and

at the conclusion of the hearing, took the matter under advisement. Thereafter,

McGee filed a motion for a continuance pursuant to SDCL 15-6-56(f) to conduct

discovery to oppose the DOT’s motion for summary judgment. The DOT objected,

and after a hearing, the circuit court granted McGee’s motion to conduct additional

discovery. 1

[¶13.] After McGee conducted additional discovery and the parties submitted

additional briefing, the circuit court issued a memorandum decision incorporating

its prior decision denying the DOT’s motion to dismiss and again holding that the

DOT is not entitled to sovereign immunity. The court determined that pursuant to

Standard Specification 5.10, Gates and Royalty were to inspect all work done on the

contract and could not waive any part of the contract or issue contrary directives.

The court further noted the requirement in the Standard Specifications that the

DOT engineer is required to maintain the project if the contractor fails to comply

1. When McGee was conducting additional discovery, he settled his claims
against Spencer Quarries. The terms of the settlement agreement are not in
the record.

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with Standard Specification 4.5 and does not remedy the noncompliance within 24

hours.

[¶14.] In regard to the requirement in the Standard Specification related to

tack, the circuit court determined that it sets “a certain and definite duty” while

also allowing “some leeway or discretion” in implementation. However, the court

determined that even if estimating the amount of tack for the current day’s

operation is a discretionary decision, the DOT employees “ignored the specifications

requiring them to avoid leaving exposed tack coat to the driving public, and that

when they could not avoid it they failed to take precautionary measures to reduce

speed or warn the public of the hazard in the area of exposed tack coat.”

[¶15.] The circuit court also noted that DOT employees and contractors who

work on resurfacing projects in South Dakota are required to take a training course

put on by the DOT and that the DOT distributes to the employees and contractors

the Hot Mix Handbook as part of this training course. In regard to this handbook,

the court noted that it “is a nationally recognized authoritative resource and

industrial guide used in similar trainings” and then relied on the language in the

handbook in determining that Gates’s and Royalty’s duties were ministerial.

Finally, the court relied on the Standard Specifications requiring signage to warn

the traveling public of roadway surface treatment as indicated by the MUTCD,

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specifically, a “Fresh Oil” sign. However, the court acknowledged the DOT’s claim

that this sign is not required once the tack has broken. 2

[¶16.] Ultimately, the circuit court determined the duties owed by Royalty

and Gates were ministerial because they “were binding upon them as the Standard

Specifications were to be followed and they were prohibited from waiving them or

giving contrary instructions.” The court deemed inapplicable the DOT’s third-party

beneficiary argument because McGee’s tort claims relate to the DOT’s alleged

breach of its ministerial duties created by the Standard Specifications and are not

based on a claim that he was entitled to the benefits of the contract between the

DOT and Spencer Quarries.

[¶17.] The circuit court denied the DOT’s motion for summary judgment, and

the DOT again petitioned this Court for a discretionary appeal pursuant to SDCL

15-26A-13, which we granted. On appeal, the DOT asserts three arguments, which

we restate as follows:

1. Whether McGee’s suit against the DOT is precluded
under the law governing a third-party beneficiary’s
standing to seek damages for a breach of contract.

2. Whether McGee failed to plead an actionable duty.

3. Whether the acts at issue were discretionary and
therefore protected by sovereign immunity.

2. According to the DOT, “tack is wet when applied but eventually will ‘break’
when the solvents and water in the oil evaporate[.]” Tack was also described
as broken when it turns from brown to black.

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Standard of Review

[¶18.] It is well settled that “[w]e review a [circuit court’s] grant or denial of

summary judgment de novo.” Davies v. GPHC, LLC, 2022 S.D. 55, ¶ 17, 908

N.W.2d 251, 258 (second alteration in original) (quoting Sheard v. Hattum, 2021

S.D. 55, ¶ 22, 965 N.W.2d 134, 141). “Summary judgment is only appropriate when

the court determines that the pleadings, depositions, answers to interrogatories,

and admissions on file, together with any affidavits of the parties, reveal that there

are no genuine issues of material fact and that the moving party is entitled to

judgment as a matter of law.” Wulf v. Senst, 2003 S.D. 105, ¶ 17, 669 N.W.2d 135,

141.

Analysis and Decision

1. Whether McGee’s suit against the DOT is precluded
under the law governing a third-party beneficiary’s
standing to seek damages for a breach of contract.

[¶19.] The DOT claims that McGee’s negligence suit is premised on the

DOT’s alleged breach of certain provisions in the documents incorporated into

Spencer Quarries’ contract with the DOT—the Plan Documents, Standard

Specifications, and the MUTCD. The DOT then asserts that under Sisney v. State,

2008 S.D. 71, 754 N.W.2d 639, McGee cannot institute this suit against the DOT

because he is not a third-party beneficiary of this contract. The DOT further

asserts it is not subject to tort liability because McGee has not identified a breach of

a legal duty independent of the contract. See Knecht v. Evridge, 2020 S.D. 9, ¶ 60,

940 N.W.2d 318, 335 (recognizing that tort liability must arise “from extraneous

circumstances, not constituting elements of the contract” (citation omitted)). In

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response, McGee claims that he “is not suing for breach of contract or seeking to

enforce any contract”; thus, in his view, third-party beneficiary law is inapplicable

here. He also contends that the independent tort doctrine is inapplicable because

he is not a party to any breach of contract claim against the DOT.

[¶20.] In Sisney, the Court recognized that “[a] contract made expressly for

the benefit of a third person may be enforced by him at any time before the parties

thereto rescind it.” 2008 S.D. 71, ¶ 10, 754 N.W.2d at 643 (quoting SDCL 53-2-6).

Sisney further noted that when a government “contract is involved, private citizens

are presumed not to be third-party beneficiaries.” Id. ¶ 11, 754 N.W.2d at 644.

[¶21.] Here, although a government contract is involved, McGee is not

seeking the relief that would be afforded to either the DOT or Spencer Quarries for

a breach of the contract, nor is he seeking to enforce the contract. Rather, he

instituted this tort claim for damages based on his view that the DOT breached

“ministerial duties owed as the result of requirements imposed by statute,

mandatory policies formally adopted by SDDOT in Standard Specifications

independent of any particular contract, and the MUTCD.” While it must be

determined whether such duties exist, the nature of McGee’s claim does not

implicate third-party beneficiary law. Similarly, because McGee is not a party to

the DOT/Spencer Quarries contract, the independent tort doctrine does not apply.

As is evident in our past cases, the independent tort doctrine may be at issue when

a party to a contract brings a tort suit against the other contracting party. Knecht,

2020 S.D. 9, 940 N.W.2d 318; Kreisers Inc. v. First Dakota Title Ltd. P’ship., 2014

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S.D. 56, 852 N.W.2d 413; Fisher Sand & Gravel Co. v. S.D. Dep’t of Transp., 1997

S.D. 8, 558 N.W.2d 864. The circuit court properly rejected this claim by the DOT.

2. Whether McGee failed to plead an actionable duty.

[¶22.] The DOT contends that a negligence claim against the State related to

its duty of care to maintain a highway must be premised on a specific statutory

duty, not on common law or industry customs and practices. 3 In the DOT’s view,

this requirement is supported by the “long line of decisions including Hohm v. City

of Rapid City, 2008 S.D. 65, 753 N.W.2d 895, and Dohrman v. Lawrence County,

143 N.W.2d 865 (S.D. 1966).” In particular, the DOT relies on the language in

Dohrman that “the duty imposed upon the county to protect the public from injury

occasioned by defective highways and bridges and consequently the standard of care

cannot be predicated on principles of common law negligence”; “liability must be

determined from the standard of conduct imposed by the statute[.]” See 143 N.W.2d

at 867. From Hohm, the DOT quotes language indicating the Legislature’s intent,

by enacting statutes like SDCL 31-28-6 and SDCL 31-32-10, to abrogate “cities’

common-law duties respecting streets” and “to design a complete scheme of

3. McGee claims that the DOT failed to assert this particular argument before
the circuit court or cite the cases on which it now relies to support this
argument on appeal and thus waived appellate review of this issue. McGee
alternatively claims that statutory duties exist via SDCL 31-28-6 and SDCL
31-28-11. In its reply brief, the DOT contends McGee waived the right to
assert that a specific statutory duty exists because he did not identify a
statutory duty before the circuit court. A review of the proceedings below
reveals that the question whether a statutory duty exists was squarely before
the circuit court. The DOT made the specific argument that McGee failed to
identify “any laws under which he alleges that [the DOT] violated any
duties.” The DOT then further noted that it would “construe [McGee’s]
claims for negligence” to be “under SDCL 31-5-11 and SDCL 31-28-6.”

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responsibility and liability for highway maintenance such that its requirements

should be the only ones that were obligatory.” 2008 S.D. 65, ¶¶ 17, 20, 753 N.W.2d

at 904–05. The DOT then directs the Court to other cases in which highway

maintenance claims against the State have been premised on a statutory duty. See

Truman v. Griese, 2009 S.D. 8, 762 N.W.2d 75 (SDCL 31-28-6); Hansen v. S.D. Dep’t

of Transp., 1998 S.D. 109, 584 N.W.2d 881 (SDCL 31-5-1, SDCL 31-28-6, and SDCL

31-32-10); Wulf, 2003 S.D. 105, 669 N.W.2d 135 (SDCL 31-5-8.3).

[¶23.] In response, McGee contends that neither Dorhman nor Hohm are

applicable under the circumstances. He notes that Dohrman related to the alleged

negligence of the public entity, whereas the allegations here relate to individual

negligence on the part of the employees because of their breach of ministerial duties

imposed by the Standard Specifications and the MUTCD. More specifically, he

notes that unlike the claims in Hohm and Dohrman against a county or city related

to injuries resulting from damaged or defective roads and highways that lacked

warning signs, his claims arise because of “negligent acts and omissions committed

by specific individuals in violation of their ministerial duties in the course of an

operational activity, limited in duration, that of resurfacing a highway.” Thus, he

argues that under cases such as State v. Ruth, 9 S.D. 84, 68 N.W. 189 (1896) and

Kyllo v. Panzer, 535 N.W.2d 896 (S.D. 1995), he has a right to institute a suit

against a State employee for negligent acts related to the performance of ministerial

duties. In particular, he quotes the language from Kyllo that “[a]n injured person’s

right to sue the negligent employee of an immune public entity derives from the

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common law, and we will not lightly infer a legislative abrogation of that right

absent a clear expression of intent.” 4 535 N.W.2d at 898–99.

[¶24.] The DOT does not dispute these general principles with respect to a

State employee’s liability for negligence when performing ministerial acts.

However, because McGee’s suit concerns negligence related to the maintenance of a

highway, it argues that under Dorhman and Hohm, the duties owed by the DOT

and its employees related to the claims here must derive from statute, not the

common law. But Dohrman and Hohm specifically addressed the liability of cities

and counties, not the State, in light of the evolution of legislative enactments

specifically governing the liability of these local entities. This Court has not before

been asked to address whether or how the holdings in Dohrman and Hohm apply to

negligence claims against the State or its employees. 5 But given the nature of

McGee’s claims here, there is no need to look to common law negligence principles

to identify an actionable duty because, as noted in the DOT’s briefs to the circuit

court and to this Court, our prior cases have already identified statutes from which

the duties owed to McGee are derived.

4. McGee also notes the Court’s recognition in Kyllo that the Legislature has
codified this right in SDCL 20-9-1 (“[e]very person is responsible for injury
. . . caused by his want of ordinary care or skill”) and SDCL 21-1-1 (“[e]very
person who suffers detriment from the unlawful act or omission of another
may recover from the person in fault . . .”). 535 N.W.2d at 899.

5. The legislative enactments in Hohm and Dohrman were the predecessors of
what was later codified in SDCL 31-32-10. This statute retained the
language from a prior version generally referring to the duties of “the
governing body responsible for the maintenance of [the] highway” but no
longer includes language that was contained in the earlier statutes
specifically referring to causes of action against counties, townships, and
cities.

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[¶25.] In Wulf, the DOT had contracted with Preheim Lawn and Landscape,

Inc. to provide winter road maintenance over Highway 42 and made certain DOT

employees (Senst and Bultje) responsible for the specific decisions related to snow

and ice removal on the highway. 2003 S.D. 105, ¶ 4, 669 N.W.2d at 138. After a

tragic accident on the highway due to icy and slippery road conditions, two different

lawsuits were filed against various defendants, including Preheim Lawn and

Landscape, Senst, and Bultje. Id. ¶¶ 14–15, 669 N.W.2d at 140–41. The complaints

alleged that Preheim Lawn and Landscape negligently maintained the highway and

that Senst and Bultje knew or should have known that the company was not

properly maintaining the highway. Senst and Bultje moved for summary judgment,

asserting that sovereign immunity shielded them from liability. Id. ¶ 16, 669

N.W.2d at 141.

[¶26.] On appeal from the circuit court’s decision granting Senst and Bultje

summary judgment, the Court observed that Highway 42 is part of the State

highway system; thus, the State is responsible for clearing snow and ice from the

highway. Id. ¶ 4, 669 N.W.2d at 138. The Court also noted that under SDCL 31-4-

14, the State “delegated responsibility for maintenance of its roads and highways to

DOT.” Id. (citing SDCL 31-4-14); see also SDCL 31-5-1 (providing 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”). The DOT, in turn, adopted various policies governing winter

road maintenance pursuant to the requirement under SDCL 31-5-8.3 that it

“establish a winter safe highway maintenance plan.” 2003 S.D. 105, ¶ 12, 669

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N.W.2d at 139. Relying on the above statutes, the Court determined that the DOT’s

adoption of a policy related to sanding defined the duties owed by Senst and Bultje.

Id. ¶ 32, 699 N.W.2d at 146.

[¶27.] Similarly here, the State has delegated to the DOT the responsibility

for maintaining State highways, including the highway at issue here, Highway 45.

SDCL 31-4-165 (providing that the State trunk highway system includes Highway

45). In addition, the Legislature has obligated the DOT to “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 and furnish

the same to the several county superintendents of highways.” SDCL 31-2-20. And

in regard to warning signage, SDCL 31-28-6 imposes a duty on the DOT to “erect

and maintain at points in conformity with standard uniform traffic control practices

on . . . [a] point of danger on such highway, . . . a substantial and conspicuous

warning sign.”

[¶28.] Because the DOT is legally responsible for the maintenance of

Highway 45 and has adopted, at the Legislature’s directive, Standard Specifications

governing projects related to the maintenance and repair of State highways,

consistent with this Court’s analysis in Wulf regarding the source of the duties

owed, McGee has sufficiently alleged the existence of an actionable duty with

respect to the resurfacing project at issue.

3. Whether the acts at issue were discretionary and
therefore protected by sovereign immunity.

[¶29.] McGee’s suit alleges individual negligence against State employees,

and “it is well-settled that suits against officers of the state ‘in their official

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capacity, [are] in reality [suits] against the State itself.’” Dan Nelson Automotive v.

Viken, 2005 S.D. 109, ¶ 23, 706 N.W.2d 239, 247 (alterations in original) (citation

omitted). As the Court in High-Grade Oil Co., Inc. v. Sommer explained, an action

against an officer of the State is deemed to be against the State. 295 N.W.2d 736,

737 (S.D. 1980). Therefore, McGee’s action against the DOT and its employees is

not maintainable unless sovereign immunity is waived.

[¶30.] In Wulf, the Court explained that “State employees are immune from

suit when they perform discretionary functions, but not when they perform

ministerial functions.” 2003 S.D. 105, ¶ 20, 669 N.W.2d at 142. The distinction

between the two was most recently quoted in Truman:

[A] ministerial act is defined as absolute, certain, and
imperative, involving merely the execution of a specific duty
arising from fixed designated facts or the execution of a set task
imposed by law prescribing and defining the time, mode and
occasion of its performance with such certainty that nothing
remains for judgment or discretion, being a simple, definite duty
arising under and because of stated conditions and imposed by
law. A ministerial act envisions direct adherence to a governing
rule or standard with a compulsory result. It is performed in a
prescribed manner without the exercise of judgment or
discretion as to the propriety of the action.

2009 S.D. 8, ¶ 21, 762 N.W.2d at 80–81 (emphasis omitted) (quoting Hansen, 1998

S.D. 109, ¶ 23, 584 N.W.2d at 886). “If the duties do not fall within [these]

definition[s], they are not ministerial and thus are discretionary for this is the

limits of the abrogation of sovereign immunity authorized by the Legislature.” Id.

(alterations in original) (citation omitted). Whether an act is discretionary or

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ministerial is a question of law reviewed de novo. 6 Id. ¶ 10, 762 N.W.2d at 78

(quoting Bickner v. Raymond Twp., 2008 S.D. 27, ¶ 10, 747 N.W.2d 668, 671).

[¶31.] The DOT contends that the circuit court erred in concluding “that

deciding how much tack to spray, whether to permit the public to travel on dried

tack, and whether to post signs were ministerial acts.” In the DOT’s view, McGee

has failed to identify “a governing rule or standard with a compulsory result” that is

to be “performed in a prescribed manner without the exercise of judgment or

discretion as to the propriety of the action.” See Truman, 2009 S.D. 8, ¶ 21, 762

6. In concluding that the duties owed here were ministerial, the circuit court
relied on factors this Court quoted in King v. Landguth, 2007 S.D. 2, 726
N.W.2d 603. The factors come from the Restatement (Second) of Torts and
were referenced in National Bank of South Dakota v. Leir, 325 N.W.2d 845
(S.D. 1982), but the Court did not ultimately apply all of them in determining
that the acts at issue were ministerial. Rather, the Court considered the
existence of established criteria and standards governing whether an act is
ministerial. This approach is in line with how we have described a
ministerial act in our more recent cases. In regard to the Restatement
factors, Lier identified them as matters to consider when deciding what
constitutes a “discretionary function.” Id. at 848. But aside from the first
factor’s nondescriptive reference to the “nature and importance of the
function that the officer is performing,” none of the other factors actually
define what types of acts are discretionary versus ministerial. Instead, the
factors refer more generally to policy reasons why an injury-producing act
performed by a government actor should or should not be deemed immune
from suit. Restatement (Second) of Torts § 895D (1979) (further referring to
these factors as ones relating to the “consequences” of determining what is a
discretionary act). Notably, this Court has not cited these factors since 2007
and has never applied them as a governing standard when determining
whether an act is ministerial. In fact, the Restatement separately describes
the features of ministerial acts, much like this Court has described them in
Truman, 2009 S.D. 8, ¶ 21, 762 N.W.2d at 80–81. See Restatement (Second)
of Torts § 895D (1979) (providing that ministerial acts are done by employees
with “little choice as to when, where, how or under what circumstances their
acts are to be done”). Because our more recent sovereign immunity cases
discussing the distinction between ministerial and discretionary functions
focus specifically on the nature of the acts in question, we decline to apply the
less-helpful, policy-type factors from King.

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N.W.2d at 81. In response, McGee claims that “Gates and Royalty had the specific,

individual responsibility to ensure that [the] requirements” of the Standard

Specifications, the MUTCD, and the Hot Mix Handbook were followed. In

particular, he claims that Gates and Royalty were required to “inspect and ensure

that no more tack coating is sprayed than is to be covered in that same day and—if

for some reason that duty is violated—to warn of the slick surface treatment using

the required W21-2 Fresh Oil signs[.]”

[¶32.] JENSEN, Chief Justice, writing for the Court on Issue 3(a).

a. Whether Standard Specification 330.3(E) sets forth
a ministerial duty relating to the amount of tack
coating applied each day.

[¶33.] McGee argues that Standard Specification 330.3(E) created a

ministerial duty requiring Gates and Royalty to “ensure only as much tack coat was

sprayed as could be covered that day[.]” He does not allege that Gates and Royalty

were negligent because they made an improper estimate, but rather because they

failed to ensure that the “tack application ahead of mat laydown . . . [did not] exceed

the amount estimated for the current day’s operation[.]” 7

7. Standard Specification 330.3(E) may be overridden if the Engineer orders or
allows additional tack application than what is permitted by the
Specification, but the undisputed evidence establishes that this never
occurred. Peppel testified that he has never ordered or allowed a contractor
to exceed the tack application established by the Specification and he is
unaware of an engineer ever doing so. Gates testified that as the project
engineer, he was not involved in estimating the amount of tack needed for
the current day’s operation and did not recall any discussions with the
contractor about whether the amount of tack estimated for the day was
correct. Gates further testified that he did not recall ordering or allowing the
project’s contractor to spray more tack coat than permitted by the
Specification. Royalty testified that he and the contractor would get together
(continued . . .)
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[¶34.] Truman v. Griese provides the framework for distinguishing between

ministerial and discretionary acts, but we have stated that the “determination of

what acts constitute discretionary or ministerial functions requires an

individualized inquiry.” King, 2007 S.D. 2, ¶ 13, 726 N.W.2d at 608 (citing Wulf,

2003 S.D. 105, ¶ 21, 669 N.W.2d at 143). A “[p]roper analysis must avoid a

mechanistic approach to the question and exemplifies the difficulties inherent in the

ministerial/discretionary dichotomy.” Hansen, 1998 S.D. 109, ¶ 23, 584 N.W.2d at

886. This Court has explained “that the distinction between discretionary and

ministerial acts is often one of degree, since any official act that is ministerial will

still require the actor to use some discretion in its performance.” Wulf, 2003 S.D.

105, ¶ 23, 669 N.W.2d at 144 (quoting Hansen, 1998 S.D. 109, ¶ 23, 584 N.W.2d at

886). “[A] ministerial act is the simple carrying out of a policy already established

. . . so that 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. ¶ 20 (second alteration in original)

(quoting Ritter v. Johnson, 465 N.W.2d 196, 198 (S.D. 1991)).

[¶35.] Applying these rules leads to the conclusion that Standard

Specification 330.3(E) creates a ministerial duty by requiring that the “[t]ack

application ahead of mat laydown . . . shall not exceed the amount estimated for the

________________________
(. . . continued)
to determine the amount of tack coat to put down for the day but did not
testify to being directed by an engineer to exceed this specification. Finally,
the tack truck distributor for the contractor testified that he had never heard
a state engineer order or allow more tack application than called for in the
day’s operation.

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current day’s operation unless ordered or allowed by the Engineer.” Because there

was no engineer override ordering or allowing the tack application to exceed the

amount estimated for the day’s operation, Standard Specification 330.3(E) created a

ministerial duty that did not implicate the sovereignty of the State.

[¶36.] We have “held that highway repair is generally considered to be

ministerial in nature[.]” Id. ¶ 23 (citing Hansen, 1998 S.D. 109, ¶ 23, 584 N.W.2d at

886). However, highway repair 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. See King, 2007 S.D. 2, ¶ 21, 726 N.W.2d at 610 (The failure by DOT

employees to place certain markings on a highway culvert that resulted in a fatal

traffic accident “were not ministerial [acts] because at the time of the accident there

was not a ‘readily ascertainable standard.’”); Hansen, 1998 S.D. 109, ¶¶ 25–31, 584

N.W.2d at 887–88 (Claims brought against the DOT, the Secretary of the DOT and

the Transportation Commission after a motorist entered a large hole in a highway

due to construction were barred by sovereign immunity because the motorist failed

to allege an “absolute, certain, and imperative duty” or a “readily ascertainable

standard” creating a ministerial duty on any of the named defendants.); Wilson v.

Hogan, 473 N.W.2d 492, 493 (S.D. 1991) (A claim for “an inadequately designed and

maintained storm drainage system on [a highway]” involves an act that is a

discretionary function.); High-Grade Oil, 295 N.W.2d at 739 (The design of a

highway involves a discretionary function subject to sovereign immunity.).

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[¶37.] Standard Specification 330.3(E) established a mandatory specification

that created a ministerial duty much like the DOT policy addressed in Wulf. In

Wulf, this Court determined that DOT Policy 2531 created a ministerial duty in

that it required the DOT to use sand/salt/chemical mixtures and continue

operations from 5:00 a.m. until 7:00 p.m. during a winter storm, unless certain

conditions existed. 2003 S.D. 105, ¶ 31, 669 N.W.2d at 146. The Wulf Court

determined “[o]nce DOT made the decision to adopt policy 2531, [DOT employees]

were obligated to follow it.” Id. ¶ 32. “[O]nce it is determined that the act should be

performed, subsequent duties may be considered ministerial.” Id. (quoting Hansen,

1998 S.D. 109, ¶ 23, 584 N.W.2d at 886).

[¶38.] In other contexts, this Court has recognized that established standards

create ministerial duties that do not fall within the immunity afforded to the

sovereign. In National Bank of South Dakota v. Leir, this Court held that the

placement and supervision of children in a foster home by the Department of Social

Services was a ministerial function. 325 N.W.2d at 849. In differentiating between

a discretionary and ministerial function, this Court considered that the “care and

placement of children is an important function and there is strong likelihood that

serious harm will result to members of the public if it is performed incorrectly.” Id.

at 849–50. We further observed that the “criteria for placement and standards for

follow-up of foster children are already established. Social workers are merely

required to carry out or administer these previously established standards.” Id. at

850. Leir recognized that while “some discretion in its literal sense is involved in

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foster care, social workers do not make policy decisions involving foster care

placement.” Id.

[¶39.] In State v. Ruth, this Court recognized that while the requirement for

a governmental officer to estimate the funds available for investment may involve

the exercise of some judgment or discretion, the obligation to make this estimate

was a mandatory, ministerial function. 9 S.D. 84, 68 N.W. at 190–91 (holding that

the Commissioner of School and Public Lands could be held liable for the loss of

investment income for negligently failing to estimate the funds available to be

invested before the start of the fiscal year because “[i]n making the estimate, [the

Commissioner] was . . . required to exercise judgment and discretion; but the law

did not permit him to decide whether or not any estimate should be made within

the time specified by the statute”). Id.

[¶40.] Similarly, Standard Specification 330.3(E) created a standard

requiring that tack application ahead of the mat laydown “shall not exceed the

amount estimated for the current day’s operation.” DOT employees were tasked

with the ministerial responsibility to ensure that an estimate of the tack needed for

the day was made and not exceeded. 8

8. Disputed issues of fact exist whether daily estimates of the tack needed for
the day were made or exceeded. Contractor employees testified that they
always followed the State’s directives for applying the amount of tack coat
each day. However, Gates testified that he was never involved in this
process. Royalty did not testify to making an estimate of the tack needed
each day but explained that he and the contractor would get together and
decide on the amount of tack to be laid. There was no evidence that an
estimate was made for the amount of tack needed on June 29, or whether
that estimate was exceeded, but the evidence shows that at the end of the day
some 1,400 feet of exposed tack coat remained on the highway. Disputed
(continued . . .)
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[¶41.] The mandate in Standard Specification 330.3(E), requiring that the

“[t]ack application ahead of mat laydown . . . shall not exceed the amount estimated

for the current day’s operation . . .” was “absolute, certain, and imperative.”

Truman, 2009 S.D. 8, ¶ 21, 762 N.W.2d at 80. This specification established a

governing standard with a compulsory result. The requirement to make an

estimate and follow it did not “involve policy making or the exercise of professional

expertise and judgment[.]” King, 2007 S.D. 2, ¶ 13, 726 N.W.2d at 608 (quoting

Hansen, 1998 S.D. 109, ¶ 23, 584 N.W.2d at 886). See also Marson v. Thomason,

438 S.W.3d 292, 297 (Ky. 2014) (explaining that “[t]he distinction between

discretionary acts and mandatory acts is essentially the difference between making

higher-level decisions and giving orders to effectuate those decisions, and simply

following orders”). There was no judgment or uncertainty in the obligation to make

this estimate each day and limit the amount of tack laid down accordingly.

[¶42.] For these reasons, we affirm the circuit court’s determination that

Standard Specification 330.3(E) created a ministerial duty that did not shield Gates

and Royalty from sovereign immunity. Because questions of fact remain whether

they breached this duty, as well as causation, and the amount of McGee’s damages,

we remand McGee’s claims for further proceedings.

________________________
(. . . continued)
issues of facts exist whether this amount of exposed tack was consistent with
requirements of Standard Specification 330.3(E). There was some testimony
that it would not be unusual to have several hundred feet of exposed tack at
the end of the day, but the operator of the tack truck testified that he had the
ability to “stop within about 20 feet, less than that” when laying down the
tack coat for the day.

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[¶43.] DEVANEY, Justice, writing for the Court on Issue 3(b).

b. Whether the DOT had a ministerial duty with
respect to the use of warning signs.

[¶44.] The DOT further asserts that the circuit court erred in concluding that

Gates and Royalty had a ministerial duty to take precautionary measures when

exposed tack is left on the highway. The DOT notes that the court should not have

relied on language in the Hot Mix Handbook—a handbook that is not part of the

Standard Specifications, either explicitly or by reference.

[¶45.] While, as a general matter, duties underlying negligence claims

against a person engaged in a particular trade or profession might be defined by

professional customs, practices, or guidelines, this Court’s prior cases addressing

whether the nature of a State employee’s duties are ministerial have not relied

upon handbooks of this nature to make such a determination. Rather, the Court

has looked to statutes or specific policies adopted pursuant to statute, and with

respect to warning signs in particular, the Court has considered the directives in

the MUTCD. See Wulf, 2003 S.D. 105, ¶ 12, 669 N.W.2d at 139 (noting that it is the

DOT policy established pursuant to SDCL 31-5-8.3 which establishes the State

employees’ responsibilities); Truman, 2009 S.D. 8, ¶¶ 25, 26, 762 N.W.2d at 81–82

(noting that in order to establish a ministerial duty under SDCL 31-28-6, “‘standard

uniform traffic control practices’ must exist and delineate at which specific points

signs must be erected at this type of intersection”). Notably, the explanation in

Truman of what constitutes a ministerial duty refers to set tasks or defined duties

imposed by law. Id. ¶ 21, 762 N.W.2d at 80–81.

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[¶46.] Even if the Hot Mix Handbook is deemed a relevant source from which

the nature of the duty here may be defined, the language of the handbook includes

terms that are not definitive and do not, therefore, mandate a particular action.

The handbook provides: “Tack coat should not be left exposed to traffic. If doing so

is necessary, proper precautions, such as reducing the posted speed limit on the

roadway and sanding the surface, should be taken.” (Emphasis added.) Its further

provisions also lack precision: “[T]he tack coat is normally placed only a short

distance in front of the paver—within the lane closure and far enough ahead for the

tack to set properly before the [mix] is laid on top of it. Traffic is kept off the tack

coat at all times. . . . Under unusual circumstances, if traffic must travel over the

tack coat before the overlay is placed, a light layer of sand can be spread on top of

the tack coat to prevent its pickup by traffic.” (Emphasis added.) Therefore, the

Hot Mix Handbook does not create ministerial duties for which McGee could bring

suit against Gates and Royalty.

[¶47.] However, in regard to the DOT’s duty to take precautionary measures,

the circuit court also relied on the Standard Specifications and the MUTCD. Under

Standard Specification 330.3(G):

The Contractor shall provide flaggers, signs, and barriers to
warn, direct, and prevent traffic from traveling on the freshly
applied asphalt until it has penetrated, and does not track or
pickup on the tires of traveling vehicles or the surface has been
blotted with sand. Temporary traffic control shall conform to
Section 634.

(Emphasis added.) Under Standard Specification 634.1, the contractor’s “work

consists of furnishing, installing, and maintaining required temporary traffic

control devices in accordance with the current edition of the Federal Manual on

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Uniform Traffic Control Devices (MUTCD).” 9 The controlling edition of the

MUTCD provides as “Guidance” that a “FRESH OIL (TAR)” sign “should be used to

warn road users of the surface treatment.”

[¶48.] The DOT disputes that this MUTCD provision is implicated when

there is exposed, broken tack. In its view, the language refers to one type of surface

treatment—fresh oil—and “broken tack is by definition not fresh.” Notably,

Standard Specification 330.3(G) mandates warning signs only with regard to

“freshly applied asphalt until it has penetrated.” This supports the DOT’s

contention that the “Fresh Oil” sign does not appear to be mandated under the

circumstances here.

[¶49.] In response, McGee contends that the “Fresh Oil” sign was required

during the entirety of the tack coat operations, and thus, Gates and Royalty “had no

alternative but to act” and warn of the danger. 10 He directs this Court to the

language in the contract’s Plan Documents (Plate No. 634.23) providing: “For tack

and/or flush seal operations, when flaggers are not being used, the FRESH OIL sign

(W21-2) shall be displayed in advance of the liquid asphalt areas.” (Emphasis

added.) But this provision, despite referring to tack operations generally, only

directs the use of a “Fresh Oil” sign for “liquid asphalt” areas. Regardless, as noted

9. While the MUTCD is incorporated by reference in the Standard
Specifications, SDCL 31-28-11 also requires that the markings and traffic
signals on any street or road constructed with federal aid “conform to uniform
national signing standards.”

10. McGee also contends that the DOT had a duty to ensure that the speed limit
was lowered in the area of the accident. However, McGee has not directed
this Court to a Standard Specification or MUTCD provision mandating that
the speed be lowered.

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above, the Court in Wulf explained that it is the DOT policy adopted pursuant to

statute that establishes the DOT employees’ responsibilities, not the contract

between the DOT and the contractor. 2003 S.D. 105, ¶ 12, 669 N.W.2d at 139–40.

[¶50.] Moreover, although the Standard Specifications and the MUTCD,

adopted pursuant to statute, define the DOT’s duties as it relates to the resurfacing

project, the language of the MUTCD provision on which McGee relies does not

support that Gates and Royalty had a ministerial duty to ensure that a “Fresh Oil”

sign was placed on all roadways containing exposed, broken tack. This MUTCD

provision is written as a “Guidance.” Importantly, the definitional section of the

MUTCD states:

Guidance—a statement of recommended, but not mandatory,
practice in typical situations, with deviations allowed if
engineering judgment or engineering study indicates the
deviation to be appropriate. All Guidance statements are
labeled, and the text appears in unbold type. The verb “should”
is typically used. The verbs “shall” and “may” are not used in
Guidance statements. Guidance statements are sometimes
modified by Options.

Manual on Traffic Control Devices for Streets and Highways, § 1A.13 Definitions of

Headings, Words, and Phrases in this Manual (2009 ed. with 2012 revisions)

available at https://mutcd.fhwa.dot.gov/pdfs/2009r1r2/mutcd2009r1r2edition.pdf

(emphasis added). The MUTCD provision at issue uses terms such as “should”

rather than “shall” and is therefore, by definition, not a mandatory directive.

[¶51.] In Hansen, this Court noted that when a traffic control device is

mandated by the MUTCD, the use of the device is not discretionary. 1998 S.D. 109,

¶ 31, 584 N.W.2d at 888. However, when the language of the MUTCD provision

“accommodates an exercise of discretion,” “failing to erect signs is generally not

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actionable.” Bickner, 2008 S.D. 27, ¶ 15, 747 N.W.2d at 672. The failure to erect

the “Fresh Oil” sign would also not be actionable under SDCL 31-28-6, which

provides that “[t]he public board or officer whose duty it is to repair or maintain any

public highway shall erect and maintain at points in conformity with standard

uniform traffic control practices on . . . [a] point of danger on such highway, . . . a

substantial and conspicuous warning sign.” (Emphasis added.) This Court has

explained that a ministerial duty under this statute requires “a specific governing

provision from MUTCD in support of the specific duty[,]” and, here, the MUTCD

provision does not mandate that the “Fresh Oil” sign be erected when there exists

exposed, broken tack. See Hansen, 1998 S.D. 109, ¶ 31, 584 N.W.2d at 888; see also

Truman, 2009 S.D. 8, ¶ 25, 762 N.W.2d at 81–82 (noting that “in order to establish

a ministerial duty under this statute, ‘standard uniform traffic control practices’

must exist and delineate at which specific points signs must be erected”).

[¶52.] Because McGee has not identified ministerial duties relating to the use

of precautionary measure, the circuit court erred when it denied the DOT, Gates,

and Royalty summary judgment against McGee’s claims in this regard.

[¶53.] Affirmed in part, reversed in part, and remanded.

[¶54.] JENSEN, Chief Justice, and KERN and MYREN, Justices, concur.

[¶55.] SALTER, Justice, concurs in part and dissents in part.

[¶56.] DEVANEY, Justice, dissents in part.

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DEVANEY, Justice (dissenting in part).

[¶57.] Applying our well-settled law governing whether an act is

discretionary or ministerial, it is apparent that compliance with Standard

Specification 330.3(E) involves the exercise of judgment or discretion and is thus not

ministerial. In concluding otherwise, the majority writing on Issue 3(a) determines

that Standard Specification 330.3(E) tasked DOT employees “with the ministerial

responsibility to ensure that an estimate of the tack needed for the day was made

and not exceeded” and that “[t]here was no judgment or uncertainty in the

obligation to make this estimate each day and limit the amount of tack laid down

accordingly.” But by its plain terms, Standard Specification 330.3(E) allows for

discretion in determining how much tack can be and is laid on a given day.

Therefore, it does not, contrary to McGee’s suggestion, create a ministerial duty to

make sure tack is never left exposed. I therefore respectfully dissent on Issue 3(a).

[¶58.] Standard Specification 330.3(E) provides that “[t]ack application ahead

of mat laydown shall be limited by job conditions and shall not exceed the amount

estimated for the current day’s operation unless ordered or allowed by the Engineer.

Tacked areas, which become unsatisfactory as a result of traffic, weather, or other

conditions, shall be retacked. Required retacking which is not the fault of the

Contractor will be paid for at the contract price for tack asphalt.” (Emphasis

added.) While this Specification states a clear directive that the amount of tack laid

each day shall not exceed the amount estimated for that day’s operation, estimation

by its nature involves the exercise of discretion. According to testimony from both

the contractor and DOT employees, there are numerous factors that vary day to day

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affecting whether applying the amount of tack estimated for a day’s operation will

nevertheless result in tack being left exposed at the end of each day. Notably, this

Specification itself does not direct that an estimate be made, and to the extent it

implies that such is required, it does not state a mandatory directive that the DOT

ensure that the amount of tack applied is actually covered with a topcoat at the end

of each day. Rather, this Specification affords the DOT engineer discretion to allow

the amount laid to exceed the amount estimated. Also, by requiring the roadway to

be retacked if tacked areas “become unsatisfactory as a result of traffic[,]” it

contemplates that tack may be exposed to vehicular travel. (Emphasis added.)

[¶59.] Although the majority seems to acknowledge that compliance with

Standard Specification 330.3(E) (e.g., estimating the amount of tack to be laid and

allowing the application of more than estimated) involves the exercise of discretion,

it nevertheless concludes that “[b]ecause there was no engineer override ordering or

allowing the tack application to exceed the amount estimated for the day’s

operation, Standard Specification 330.3(E) created a ministerial duty that did not

implicate the sovereignty of the State.” There are two problems with this

reasoning.

[¶60.] First, whether an engineer ordered or allowed the tack application to

exceed the amount estimated for the day’s operation goes more toward the question

of breach and not to whether the duty set forth in Standard Specification 330.3(E) is

discretionary or ministerial. Second, even if these types of facts were material to

the duty question here, a review of the record reveals that a determination as a

matter of law that a ministerial duty exists would be inappropriate because the

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material facts are in dispute. For example, while Gates testified that he personally

did not pay attention to the amount of tack that was left exposed each day, he

explained that he was not on site at the project daily. However, Royalty, who was

on site at the project, testified that he and the contractor decided based on the

variables at issue that day and throughout the day how much tack would be laid.

Finally, while neither Gates nor Royalty testified that they ordered or allowed

excess tack to be applied, they both testified that it was common for there to be

exposed tack at the end of the day, suggesting that such was allowed.

[¶61.] I further disagree with the majority’s view that the directives in

Standard Specification 330.3(E) are similar to those at issue in Wulf and Ruth. In

Wulf, the DOT policy contained a mandatory directive “to use specified

sand/salt/chemical mixtures and to continue sanding operations from 5:00 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. Here, in contrast, there is no such “if-then” directive. 11 Rather,

Standard Specification 330.3(E) gives the DOT discretion in determining the

amount of tack to apply each day and whether to allow the amount laid to exceed

the day’s estimation.

[¶62.] Also, although the Court in Ruth concluded that the government

official’s duty to make an estimate was ministerial, the Court reached this

11. McGee argues otherwise, claiming that if “some unforeseen event occurred
. . . safety measures were required including the mandatory posting of
MUTCD W21-2 ‘Fresh Oil’ signs and lowering the speed limit.” However,
based on this Court’s ruling under Issue 3(b), the DOT did not have a
ministerial duty to employ such precautionary measures.

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conclusion based on the fact that “[i]n failing to act at all, [the government official]

disregarded a plain provision of the law, and failed to perform a merely ministerial

duty.” 9 S.D. 84, 68 N.W. at 191. This is starkly different than the circumstances

here, which, as the majority writing notes, reveal disputed issues of fact on the

question whether the DOT estimated the amount of tack to be applied for the day’s

operation.

[¶63.] Even so, because of the discretionary nature of the language in

Standard Specification 330.3(E), this Specification does not set forth 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[.]” See Truman, 2009

S.D. 8, ¶ 21, 762 N.W.2d at 80–81. It likewise does not envision “direct adherence

to a governing rule or standard with a compulsory result.” Id. I would therefore

conclude that sovereign immunity bars McGee’s claims against the DOT, Gates, and

Royalty.

[¶64.] SALTER, Justice, joins this writing.

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