1 N.W.3d 614
S.D.2023Background
- Austin McGee was seriously injured and became paraplegic after rolling his pickup on a resurfaced stretch of Highway 45 in South Dakota.
- McGee sued the resurfacing project contractor (Spencer Quarries, Inc.), the South Dakota Department of Transportation (DOT), and specific DOT employees (Gates and Royalty), focusing on their alleged failure to ensure contractor compliance with safety standards.
- McGee argued DOT employees negligently failed to inspect and enforce the contract, Standard Specifications, and industry practices, leading to hazardous exposed tack on the road.
- The DOT moved for summary judgment, asserting sovereign immunity and a lack of actionable duty; the lower court denied summary judgment, prompting this intermediate appeal.
- Key issues centered on whether McGee's claims were barred as third-party claims, whether DOT owed him a legal duty, and whether the tasks at issue were ministerial (thus, not shielded by sovereign immunity).
Issues
| Issue | McGee's Argument | DOT's Argument | Held |
|---|---|---|---|
| Third-party beneficiary standing | Not suing as beneficiary—suing in tort over ministerial duties, not contractual rights | Suit barred—McGee not a third-party beneficiary to contract with Spencer Quarries | Standing not barred; McGee's tort claim does not invoke third-party beneficiary law |
| Existence of an actionable duty | DOT (via statute and specs) owed duty to maintain safe highways and enforce standards | Duty must be statutory, not derived from specs or custom; state owes no such duty | Sufficiently pleaded: relevant statutes and specs create an actionable duty for DOT employees |
| Sovereign immunity—are acts ministerial or discretionary? | DOT employees were tasked with mandatory, ministerial duties under Standard Specification 330.3(E) | No ministerial duties identified; all acts required engineering judgment/discretion | Some duties (tack application limits) ministerial (no immunity); warning signage duties deemed discretionary or only guidance, not mandatory |
| Ministerial duty re: warning signs and precautions (MUTCD/Handbook use) | DOT had ministerial duty to warn public with signage per MUTCD and Hot Mix Handbook | MUTCD and Handbook provisions are non-mandatory guidance, not standards | No ministerial duty established; court reverses on this portion, as MUTCD/Handbook directives are not compulsory |
Key Cases Cited
- Wulf v. Senst, 669 N.W.2d 135 (S.D. 2003) (ministerial duty established when DOT adopts and implements mandatory safety policies)
- Truman v. Griese, 762 N.W.2d 75 (S.D. 2009) (outlines distinction between discretionary and ministerial acts for immunity analysis)
- Kyllo v. Panzer, 535 N.W.2d 896 (S.D. 1995) (right to sue government employees for negligent performance of ministerial duties)
- Hansen v. S.D. Dep’t of Transp., 584 N.W.2d 881 (S.D. 1998) (claims require a specific, mandatory standard to overcome immunity)
- Sisney v. State, 754 N.W.2d 639 (S.D. 2008) (third-party beneficiary standards in government contracts)