Lisa HANSEN, Plaintiff and Appellant, v. SOUTH DAKOTA DEPARTMENT OF TRANSPORTATION, a State Agency; Richard L. Howard, in his individual capacity and in his capacity as Secretary of Department of Transportation; Richard L. Howard, in his individual capacity and in his capacity as Director of Highways; Dr. V.B. Sibley, in his individual capacity and in his capacity as a member of the Transportation Commission, A South Dakota State Commission; E.D. Baer, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; Jim Mahowald, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; Jim Long, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; Louis Wudel, in his individual capacity and his capacity as a member of the Transportation Commission, a South Dakota State Commission; Wayne Peters, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission; William Hustead, in his individual capacity and in his capacity as a member of the Transportation Commission, a South Dakota State Commission, Defendants and Appellees, 584 N.W.2d 881
Opinion
GILBERTSON, Justice (on reassignment). [¶ 1.] Lisa Hansen (Hansen) was injured after driving her car into an unmarked construction hole on an Interstate 29 bridge. She sued the South Dakota Department of Transportation (DOT), DOT Secretary Richard Howard (Howard), and members of the Transportation Commission (Commission) for negligence in leaving the hole unmarked and unguarded. The trial court granted the defendants’ motion to dismiss on the basis that sovereign immunity barred the action. We affirm.
FACTS [¶ 2.] At approximately 7:20 a.m. on October 15, 1993, Hansen was traveling in the southbound lane on .Interstate 29 enroute to her teaching job in Jefferson. As she crossed a bridge just south of Exit 18, near Elk Point, her right front wheel suddenly dropped into a hole in the bridge. The impact threw her into the steering .wheel, causing serious injuries to her neck, shoulders, and back. [¶ 3.] According to Hansen, a construction crew created the hole by cutting completely through the bridge to remove concrete and rebar.
Only the rebar was replaced and the hole was left unmarked and unguarded. [¶ 4.] Hansen sued DOT, Howard, and Commission. She also sued Howard in his official capacity as Director of Highways. In her complaint, Hansen alleged the defendants breached a statutory duty to protect motorists from accident and injury by failing to erect signs and guards to warn of the defect in the road.
She also alleged a cause of action based on theories of negligence, negligence per se, and res ipsa loquitur. [¶ 5.] Defendants moved to dismiss on the basis that Hansen failed to state a claim upon which relief could be granted and that sovereign immunity barred her claims. The trial court granted DOT’s motion to dismiss on the basis that “sovereign immunity is waived only to the extent of coverage afforded by the Public Entity Pool for Liability (PEPL) and that PEPL does not cover public entities, but only their, employees.” This ruling was not appealed.
The court granted Howard and Commission’s motion to dismiss on the basis' that all of their duties are discretionary and therefore protected by sovereign immunity. Hansen appeals. We affirm. STANDARD OF REVIEW [ 6.] This ease was dismissed pursuant to SDCL 15—6—12(b)(5) [hereinafter Rule 12(b)(5)]: Every defense, in law or fact, to a claim for relief in any pleading, whether a claim, counterclaim, cross-claim, or third-party claim, shall be asserted in the responsive pleading thereto if one is required, except that the following defenses may at the option of the pleader be made by motion:
(5) Failure to state a claim upon which relief can be granted[.] “A motion to dismiss under Rule 12(b)(5) tests the law of a plaintiffs claim, not the facts which support it.” Thompson v. Summers, 1997 SD 103, ¶ 5, 567 N.W.2d 387, 390 (citing Stumes v. Bloomberg, 1996 SD 93, ¶ 6, 551 N.W.2d 590, 592; Schlosser v. Norwest Bank South Dakota, 506 N.W.2d 416, 418 (S.D.1993)). Schlosser directs the trial court to consider the complaint’s allegations and any exhibits which are attached. The court accepts the pleader’s description of what happened along with any conclusions reasonably drawn therefrom.
The motion may be directed to the whole complaint or only specified counts contained in it.... In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears •beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. The question is whether in the light most favorable to the plaintiff, and with doubt resolved in his or her behalf, the complaint states any valid claim of relief.
The court must go beyond the allegations for relief and examine the complaint to determine if the allegations provide for relief on any possible theory. 506 N.W.2d at 418 (citations & internal quotations omitted). [¶ 7.] Whether the defendants are protected by sovereign immunity is a question of law, reviewed de novo, with no deference given to the trial court’s legal conclusions. Wilson v.
Hogan, 473 N.W.2d 492, 493 (S.D.1991) (citations omitted). [¶ 8.] Whether The Doctrine Of Sovereign Immunity Bars Hansen’s Claims. [¶ 9.] Generally, the doctrine of sovereign immunity as found in the common law and in the South Dakota Constitution provides that the governing acts of the state, its agencies, other public entities, and their employees cannot be attacked in court without the state’s consent. Wilson, 473 N.W.2d at 494 (citing S.D.Const. art. III, § 27; Blue Fox Bar, Inc. v.
City of Yankton, 424 N.W.2d 915, 917 (S.D.1988)). [¶ 10.] In 1986, the Legislature enacted SDCL 21-32A-1, -2, and -3, establishing the procedure for bringing claims against public entities and their employees, other than the state, and waiving sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance. [¶ 11.] Also in 1986, the Legislature enacted SDCL ch. 3-22, which established PEPL: There is hereby established the South Dakota public entity pool for liability effective March 1, 1987.
The purpose of this program is to provide' a fund as the sole source for payment of valid tort claims against all member public entities of the state and their officers and employees for all liability they may incur based upon negligence in the operation of motor vehicles or negligence in performing other acts within an employee’s scope of employment. ... Nothing in this
chapter shall be determined to be an abrogation, change or modification of the doctrine of governmental or sovereign immunity created by any statute, judicial opinion, ordinance, resolution or tort claims act nor shall this
chapter create any cause of action in federal court or under federal law. (emphasis added).
SDCL 3-22-1. [¶ 12.] In 1991, SDCL 21-32A-2 was amended to include the state, and its “employees, officers, or agents,” in this waiver of sovereign immunity: Except insofar as a public entity, including the state, participates in a risk sharing pool or insurance is purchased pursuant to § 21-32A-1, any employee," officer or agent of the public entity, including the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity.
The immunity recognized herein may be raised by way of affirmative defense.
See also SDCL 21-32-16: To the extent such liability insurance is purchased pursuant to § 21-32-15 and to the extent coverage is afforded thereunder, the state shall be deemed to have waived the common law doctrine of sovereign immunity and consented to suit in the same manner that any other party may be sued. [¶ 13.] Before the state waived sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance via SDCL ch. 21-32A, suit could only be brought against a state employee if a three-step test was met:
(1) The state could not be the real party in interest; (2) the employee could not be sued in an official capacity; and (3) the plaintiff had to allege personal negligence on the part of an employee exercising a ministerial function. Reiman v. Solem, 337 N.W.2d 804, 805 (S.D.1983); see also Gasper v. Freidel, 450 N.W.2d 226, 230 (S.D.1990); Bego v. Gordon, 407 N.W.2d 801, 806 (S.D.1987); National Bank of South Dakota v. Leir, 325 N.W.2d 845, 847-48 (S.D.1982); High-Grade Oil Co., Inc. v.
Sommer, 295 N.W.2d 736, 737 (S.D.1980). [¶ 14.] Prior to the state’s waiver of immunity, a state employee could not be sued in an official capacity because, in that capacity, he or she necessarily shared whatever immunities were retained by the state: Personal-capacity suits seek to impose personal liability upon a government official for actions he takes under color of state law. Official-capacity suits, in contrast, generally represent only another way of pleading an action against an entity of which an officer is an agent.
As long as the government entity receives notice and an opportunity to respond, an official-capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity. Thus, while an award of damages against an official in his personal capacity can be executed only against the official’s personal assets, a plaintiff seeking to recover on a damages judgment in an official-capacity suit must look to the government entity itself.
The only immunities that can be claimed in an official-capacity action are forms of sovereign immunity that the entity, [as an] entity, may possess, such as the Eleventh Amendment. Kentucky v.
Graham, 473 U.S. 159, 165-67, 105 S.Ct. 3099, 3105-06, 87 L.Ed.2d 114, 121-22 (1985) (citations & internal quotations omitted). [¶ 15.] When the state has waived sovereign immunity to the extent of participation in a risk-sharing pool or the purchase of liability insurance, a state employee sued in his official capacity can no longer avail himself of the defense of sovereign immunity except in defense of alleged negligence arising from the performance of a discretionary act. [¶ 16.] The PEPL, Memorandum of Liability Coverage to the Employees of the State of South Dakota, Endorsement No. 2 (Issue Date May 1, 1996, Effective Date July 1, 1993), provides for damages resulting from negligently performed ministerial acts or tasks.
Ministerial act or task means
an act or task that involves obedience to instructions, bttt demands no special discretion, judgment or skill. Id. (italics in original, underlining added). [¶ 17.] This endorsement is a departure from the exclusion it replaced, which did not make an exception for damages resulting from ministerial acts or tasks. The amendment may have resulted from this court’s holding in Kyllo v.
Panzer, 535 N.W.2d 896 (S.D.1995), that SDCL 21-32-17 and 21-32A-2 were unconstitutional so far as they extended sovereign immunity to state employees performing ministerial functions. “This rule of law that a public employee is liable for negligently performed ministerial acts was first recognized by this court in State v.
Ruth, 9 S.D. 84, 90, 68 N.W. 189, 190 (1896), seven years after the adoption of the South Dakota Constitution.” Kyllo, 535 N.W.2d at 899 (tracing the common law history of sovereign immunity); see also Wilson, 473 N.W.2d at 494 (“[T]he negligent acts of public employees are not shielded by sovereign immunity when the employees are acting in a merely ministerial, rather than discretionary capacity.”) (collecting cases). [¶ 18.] Hansen states that her allegations of breach of statutory and common-law duties pertain to ministerial acts or omissions by Howard and Commission and thus are not barred by sovereign immunity.
Therefore, we must examine her claims to determine if she is correct, and if so, whether they survive a motion to dismiss under Rule 12(b)(5). Whether a particular function is discretionary or ministerial is a question of law. Gasper, 450 N.W.2d at 231-32; Bego, 407 N.W.2d at 810. /¶ 19.] a.
Claim Against Howard [¶20.] At the time of the Hansen accident, Howard held the position of “Director of Highways.” SDCL 31-2-9 states “[t]he director shall have full responsibility and authority for the execution of policies determined by the department of transportation. ...” Howard also held the position of “Secretary of Transportation.” His duties, as set forth in SDCL ch. 31-2, were to oversee the entire operation of the department of transportation.
Also under SDCL 1-44-14, “[t]he department of transportation shall, under the direction and control of the secretary of transportation, perform all the functions of the former state highway commission created by
chapter 31-2.... ” SDCL 1-44-14 (emphasis added). [¶ 21.] Hansen claims that Howard has a statutory duty to inspect, maintain, and repair the interstate bridges to protect the traveling public from injury. She relies upon SDCL 31-32-10, 31-5-1 and 31-28-6. Each statute shall be examined separately.
For the foregoing reasons we hold that Howard’s role in Hansen’s accident does not constitute a ministerial function. [¶ 22.] As will be established, to say that Howard, as Secretary of Transportation (Secretary) and Director of Highways (Director), was charged with a ministerial duty under these present facts and under the statutes cited by Hansen simply does not comport with reality. The reality is that Howard had charge of over 1,311 employees and a budget of over $268,892,309 for the fiscal year 1994, which was in effect at the time of Hansen’s accident.
The department of transportation, of which Howard is the Secretary, “control[s] and supervise^” the thousands of miles of highways contained in the “state trunk system.” SDCL 31-1-5. [¶ 23.] Proper analysis must avoid a mechanistic approach to the question and exemplifies the difficulties inherent in the ministerial/discretionary dichotomy. [T]he determination as to whether an official has acted in his or her discretion or capacity, and therefore is entitled to immunity, is not subject to a fixed, invariable rule, but instead requires a discerning inquiry into whether the contributions of immunity to effective government in the particular context outweigh the perhaps recurring harm to individual citizens.... [T]he view has been expressed that, in the final analysis, the decision as to whether a public official’s acts are discretionary or ministerial must be determined by the facts of each particular case after weighing such factors as the nature of the official’s duties, the extent to which the acts involve policymaking or the exercise of professional expertise and judgment, and the likely consequences of withholding immunity.
The view has also been expressed 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.
And, under particular circumstances, even a task or function usually considered ministerial — for example, ... highway repair, ... may actually involve the exercise of discretion. 63C Am.Jur.2d Public Officers and Employees § 327, at 775-776 (1997) (footnotes omitted) (emphasis added). [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 a 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. In short, once it is determined that the act should be performed, subsequent duties may be considered ministerial.
If there is a readily ascertainable standard by which the action of the government servant may be measured, whether that standard is written or the product of experience, it is not within the discretionary function exception. 57 Am.Jur.2d Municipal, County, School & State Tort Liability § 120, at 132-33 (1988) (emphasis added).
This comports with the PEPL definition which defines a ministerial task as involving “obedience to instructions” which require “no special discretion, judgment or skill.” If the duties do not fall within this definition, they are not ministerial and thus are discretionary for this is the limits of the abrogation of sovereign immunity authorized by the Legislature. For this reason the PEPL document does not even contain a definition of discretionary tasks.
SDCL 3-22-1, 3-22-2 and 3-22-16. [¶ 24.] Certain precautions are necessary in making the distinction between ministerial and discretionary duties which have been well stated by the court in Jackson v. Wilson, 581 S.W.2d 39, 43 (Mo.Ct.App.1979): When clinically viewed, it becomes readily obvious that ease in verbally espousing the discretionary-ministerial distinction inherent in the official immunity doctrine belies the practical difficulties encountered in its application in certain cases.
Therefore, application of the official immunity doctrine is susceptible to the ever-lurking danger of becoming nothing more than a labeling process because of the myopic distinction between the discretionary functions and ministerial functions on the part of public officials in certain given cases.
By the very nature of the doctrine of official immunity, vigilance must constantly be exercised to prevent the discretionary-ministerial dichotomy therein from becoming nothing more than a continuum with liability coming down on one side and immunity on the other in an atmosphere completely divorced from factual reality. [¶ 25.] The statutes cited by Hansen are not “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 a law prescribing and defining the time, mode, and occasion of its performance.” 57 Am.Jur.2d Municipal, County, School & State Tort Liability § 120, at 132-33.
None are void of “special discretion, judgment or skill.” [¶ 26.] Hansen argues that SDCL 31-32-10 imposes a ministerial duty upon Howard to erect a guard over the danger.
SDCL 31-32-10 provides: If any highway, culvert, or bridge is damaged by flood, fire or other cause, to the extent that it endangers the safety of public travel, the governing body responsible for the maintenance of such highway, culvert, or bridge, shall within forty-eight hours of receiving notice of such danger, erect guards over such defect or across such highway of sufficient height, width, and strength to guard the public from accident or injury and shall repair the damage or provide an alternative means of crossing within a reasonable time after receiving notice of the danger.
The governing body shall erect a similar guard across any abandoned public highway, culvert, or bridge. Any officer who violates any of the provisions of this
section commits a petty offense. (Emphasis added). [¶27.] The plain language of the above statute requires a governing body to erect a guard over damage to a bridge caused by “flood, fire, or other cause” within 48 hours of receiving notice. Id.
Here, the bridge had not been damaged by some other cause but was in the process of being repaired. “Other cause” hardly defines a “set task imposed by a law prescribing and defining the time, mode, and occasion of its performance with such certainty that nothing remains for judgment or discretion.” 57 Am.Jur.2d Municipal, County, School & State Tort Liability § 120, at 132. [¶ 28.] Most importantly, SDCL 31-32-10 does not establish a “hard and fast rule as to course of conduct that” Howard must take with regard to the facts of this case. Kyllo, 535 N.W.2d at 901-902 n.9.
Hansen argues Howard should have known that a bridge not damaged by “flood or fire” yet under repair is “damaged” by “other cause” as per SDCL 31-32-10. However, “other cause” is not defined and as such fails to provide Howard with a sufficiently specific standard of care with which to guide his decisions as either Secretary or Director. Id. [¶ 29.] Hansen cites to SDCL 31-5-1 as imposing a ministerial duty upon Howard.
The department of transportation shall maintain, and keep in repair all highways or portions of highways, including the bridges and culverts thereon, which highways have been constructed or improved by the department and are on the state trunk highway system. We fail to see how this statute provides a “readily ascertainable standard by which the action of [Howard] may be measured....” (57 Am.Jur.2d Municipal, County, School & State Tort Liability § 120, at 133) (emphasis added).
When applied to a position that supervises hundreds of employees and thousands of miles of highways, it certainly calls for discretion, judgment or skill. One could not pluck an ordinary citizen off the street and expect they could successfully execute the duties of Howard’s offices as required by this statute. [¶ 30.] If this broad statute is held to impose a ministerial duty upon Howard would he then become liable for every defect arising on the state highway system no matter what the degree and what the cause?
In addition, the obligations of SDCL 31-5-1 are placed upon the DOT and not specifically upon Howard as its Secretary. [¶ 31.] Hansen next cites SDCL 31-28-6 as imposing a ministerial duty upon Howard to place a warning sign at the “point of danger” Hansen encountered. This statute provides in part, “The 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 ...; a substantial and conspicuous warning sign_” (emphasis added).
It is argued that the reference in SDCL 31-28-6 to “uniform traffic control practices” dictates that the sign conform to the Manual on Uniform Traffic Control Devices (MUTCD) citing 23 C.F.R. § 655.601-07 as authority. One other jurisdiction has held that under most circumstances, “[a] traffic control device is not ‘discretionary’ if it is mandated by the MUTCD.” Patton v. City of Cleveland, 95 Ohio App.3d 21, 641 N.E.2d 1126, 1130 (OhioCt.App. 1994) (citations & emphasis omitted).
Hansen however, fails to point to a specific governing provision from MUTCD in support of the specific duty it purports to lay upon Howard. In order to discharge his duties effectively, a public servant must be free to exercise his judgment unhampered by the fear of .unpredictable liability. Where the nature of the servant’s decision or action in question is such that it may not be measured against a predictable standard of care, the possibility of litigation may tend to discourage the making of clear choices.
It is in the public interest to avoid such a chilling effect upon the servant’s performance of his duties. Where, on the other hand, a standard of care may be defined and applied with relative ease, the public servant is not similarly deterred and the public interest in the protection of the official weakens. Also relevant to the’ strength of the public interest is the potential impact of the challenged decision or action upon the public as a whole or upon a large segment of it. The greater or more pervasive this impact, the stronger becomes the public interest in insuring unfettered deci-sionmaking. DuBree v.
Commonwealth, 481 Pa. 540, 393 A.2d 293, 295 (Pa. 1978) (superseded by statute as stated in Weinstein v. Bullick, 827 F.Supp. 1193 (E.D.Pa.1993)). [A]t a time when those responsible for the maintenance of state highways have been in a position where important economic decisions had to be made as to what areas needing repairs should and had to have priority, it is of utmost importance that they be able to engage in unfettered decision making. Lehnig v. Felton, 278 Pa.Super. 12, 419 A.2d 1330, 1332 (Pa.Super.Ct.1980) (superseded by statute as stated in Mason & Dixon Lines, Inc. v.
Mognet, 166 Pa.Cmwlth. 1, 645 A.2d 1370, 1376 (Pa.Commw.Ct.1994)). [¶ 32.] The outcome advocated by Hansen would not produce a predictable standard of care. More, the outcome would severely hinder “unfettered decisionmaking” as Howard would be forced to divert significant DOT resources to attempt to ferret out every possible large pothole or other defect in the state highway system. If Howard is to be held liable under the facts of this case, all other public servants including cabinet officers, exercising similar executive powers will also be liable.
This arrives at a result where all are doing ministerial duties in the executive branch of state government with the sole exception being the Governor. [¶ 38.] In Kyllo, 535 N.W.2d at 901-902 n.9, we held that ministerial acts are those “which [involve] obedience to instructions, but [demand] no special discretion, judgment or skill.” Under present circumstances, we hold Howard’s role in Hansen’s accident does not qualify as ministerial and therefore the motion to dismiss was properly granted in his favor. /¶ ⅜J b.
Claim Against Commission [¶ 35.] Hansen has failed to show that Commission is charged with or exercises anything other than discretionary, policy-making functions and duties, for which there can be no tort liability. See SDCL 1-44-14: [T]he transportation commission shall perform the ... quasi-legislative, quasi-judi-eial, advisory and special budgetary functions (as defined in § 1-32-1) of the state highway commission. Cf. Bulman v. Hulstrand Constr.
Co., Inc., 521 N.W.2d 632, 640 (N.D.1994) (abolishing doctrine of sovereign immunity and stating, “our decision should not be interpreted as imposing tort liability on the State for the exercise of discretionary acts in its official capacity, including legislative, judicial, quasi-legislative, and quasi-judicial functions.”). [¶36.] The order granting the motion to dismiss against Howard and the Commission is affirmed. [¶ 37.] MILLER, C.J., and AMUNDSON and KONENKAMP, JJ., concur. [¶ 38.] SABERS, J., concurs in part and dissents in part. .
Howard and all Commission members were sued in both their official and individual capacities. In the trial court's order granting dismissal, it states that Hansen orally dismissed all of the individual capacity claims. . There are numerous exclusions to liability which are not relevant to this case. See The Public Entity Pool for Liability, Memorandum of Liability Coverage to the Employees of the State of South Dakota (duly 1, 1993). . Although PEPL coverage was amended to comport with Kyllo, the Legislature has not yet amended these statutes.
The text of SDCL 21-32-17 still provides: Except as provided in § 21-32-16, any employee, officer or agent of the state, while acting within the scope of his employment or agency, whether such acts are ministerial or discretionary, is immune from suit or liability for damages brought against him in either his individual or official capacity. . Hansen appeals only the grant of the motion to dismiss Howard and Commission, but not DOT. . SDCL 31-2-9 was repealed by S.L. 1996, ch. 20 § 14, in the Legislature's reorganization of DOT. .
There is no dispute that DOT is responsible for repair and maintenance of Interstate 29. See SDCL 31-4-152 (establishing Interstate 29 as part of the state trunk highway system); see also SDCL 31-4-14:- All marking, surveying, construction, repairing, and maintenance of the state trunk highway system shall be under the control and supervision of the department of transportation, and the department shall be charged with the administration of the laws relative thereto. . Interstate 29 is part of the federal highway system and its repair and maintenance are subject to federal regulations.
See, e.g., 23 C.F.R. § 650.411(c)(1): It shall be the responsibility of the State agencj' to properly maintain, or cause to be properly maintained, any [bridge replacement or rehabilitation] project constructed under this bridge program. . See High-Grade Oil, 295 N.W.2d 736 where we held that road construction and design are discretionary in nature and not a ministerial act. . Hansen argues our decision in Bryant v. Butte County, 457 N.W.2d 467 (S.D.1990), requires the conclusion that Howard's duties are ministerial. (See supra n8). This conclusion is untenable for two obvious reasons.
First, Bryant concerned entirely different statutes, SDCL 31-12-19 and - 26, which are not at issue in the present case. Bryant at 469-70. Second, SDCL 31-12-19 and -26 specifically imposed a duty only upon "the board of county commissioners." Id. Neither the Department of Transportation nor any of its officers were a party in Bryant. Under the circumstances of this case a holding that Howard was not performing a ministerial function would not be at odds with our prior case law. See Fritz v. Howard Township, 1997 SD 122, 570 N.W.2d 240; Homan v. Chicago & Northwestern Transp.
Co., 314 N.W.2d 861, 862 (S.D.1982); Kiel v. DeSmet Township, 90 S.D. 492, 496, 242 N.W.2d 153, 155 (1976). The ministerial/discretionary test is still the law of South Dakota. Significantly, where there is no "clearly defined rule” imposing a duty upon the defendant, his conduct cannot be characterized as ministerial. See Kyllo, 535 N.W.2d at 901-902 n9 (describing discretionary acts as "those acts wherein there is no hard and fast rule as to course of conduct that one must or must not take and, if there is [a] clearly defined rule, such would eliminate discretion.”) (citation omitted). . E.g.
SDCL 1-26A-1.12, 1-44-7.3, 31-2-13.1, 31-5-21 (rule making authority), SDCL 31-5-8.3 and 31-4-4 (planning), SDCL 1-44-8, 31-5-7, 31-6-8 (budgetary) and SDCL 31-11-5 (other quasi-legislative and quasi-judicial roles).
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