AUSTIN MCGEE v. SPENCER QUARRIES, INC., a South Dakota Corporation, 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
#29901-aff in pt & rev in pt-PJD & SRJ
IN THE SUPREME COURT OF THE STATE OF SOUTH DAKOTA
DECEMBER 20, 2023
2023 S.D. 66
THE HONORABLE BRUCE V. ANDERSON, Judge
ARGUED OCTOBER 5, 2022
APPEAL FROM THE
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.
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.
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).
[¶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 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 hazаrd 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, 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
[¶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 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 travеl 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’ 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.
[¶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 аnd 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
[¶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 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
[¶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 еntitled 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
- 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.
- Whether McGee failed to plead an actionable duty.
- Whether the acts at issue were discretionary and therefore protected by sovereign immunity.
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 sеek 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 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 сlaim 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
[¶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 contrаct, 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 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
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 (
[¶23.] In response, McGee contends that neither Dohrman 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 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 Dohrman 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.5 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. But given the nature of McGee‘s claims here, there is no need to look to common
[¶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 аppeal 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
[¶27.] Similarly here, the State has delegated to the DOT the responsibility for maintaining State highways, including the highway at issue here, Highway 45.
[¶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
[¶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 аs 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 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).
[¶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
[¶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]ropеr 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
[¶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 current day‘s operation unless ordered or allowed by the Engineer.” Because there was no engineer override ordering or allowing the tack аpplication 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.).
[¶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
[¶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 cоuld 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
[¶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 rеquirement 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
[¶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
[¶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 Rоyalty.
[¶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.
[¶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, Stаndard 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 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 Sрecifications 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 definitiоn, not a mandatory directive.
[¶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.
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
[¶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 Specificatiоn 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 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 muсh 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 conclusion based on
[¶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.