The
SD Supreme Court handed down one decision this morning, holding inter alia:
- Injured motorist has actionable claim against
DOT
MCGEE
v. SPENCER QUARRIES, INC., 2023 S.D. 66:
Plaintiff was injured when he “rolled his pickup while
driving on a portion of Highway 45 that was being resurfaced.” He filed suit against “the
contractor responsible for the resurfacing project and against the South Dakota
Department of Transportation (DOT) and
several DOT employees.” This decision pertains
only to Plaintiff’s claims against the DOT and its employees. The trial court denied the DOT’s Motion for
Summary Judgment premised, inter alia, on sovereign immunity. The SD Supreme Court granted an intermediate
appeal and, in this decision, the Court affirms the trial court’s holding that
Plaintiff may proceed against the DOT and its employees. The Court holds that a portion of the DOT’s
Standards impose a ministerial duty, the breach of a portion of which is actionable. The Court holds, inter alia, that
Plaintiff’s claim is not barred under the law related to 3rd Party
Beneficiaries. But, this decision also
holds that not all of Plaintiff’s assertions relate to ministerial duties. The case is affirmed in part, reversed in
part remanded for further proceedings.
The
issues in this case have divided the Justices.
Justice DeVaney is the author of most of the Court’s decision. Chief Justice Jensen is the author of a
portion of the Court’s Opinion.
For
clarity (or perhaps suggesting the lack thereof), I have copied ¶ ¶ 1-4 and ¶ ¶
53-56 below”
[¶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 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.
AND
[¶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.
This
decision may be accessed at
