South Dakota Sovereign Immunity
It is well-established under the common law and South Dakota Constitution 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." Hansen v. South Dakota Dep't. of Transp., 1998 SD 109, P9, 584 N.W.2d 881, 881 (citing Wilson v. Hogan, 473 N.W.2d 492, 494 (SD 1991) (citing SD Const art III, 27; Blue Fox Bar, Inc. v. City of Yankton, 424 N.W.2d 915, 917 (SD 1988))).
Whether a state employee, who is sued in an individual capacity, is entitled to immunity depends upon "the function performed by the employee." Kruger v. Wilson, 325 N.W.2d 851, 853 (SD 1982) (citing High-Grade Oil Co. v. Sommer, 295 N.W.2d 736 (SD 1980); Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454 (SD 1980)).
To be considered immune from suit, an employee's function must be discretionary, rather than ministerial. See 325 N.W.2d at 854. the discretionary determination is made by considering the following factors:
(1) the nature and importance of the function that the officer is performing;
(2) the extent to which passing judgment on the exercise of discretion by the officer will amount necessarily to passing judgment by the court on the conduct of the coordinate branch of government;
(3) the extent to which the imposition of liability would impair the free exercise of his discretion by the officer;
(4) the extent to which the ultimate financial responsibility will fall on the officer;
(5) the likelihood that harm will result to members of the public if the action is taken;
(6) the nature and seriousness of the type of harm that may be produced;
(7) the availability to the injured party of other remedies and other forms of relief.
Kyllo, 535 N.W.2d at 902 (citing National Bank of South Dakota v. Leir, 325 N.W.2d 845, 848 (SD 1982) (citing Restatement (Second) of Torts 895D, comment f (1979))).
Unlike discretionary acts which provide immunity to a state employee, a state employee who "'fails to perform a merely ministerial duty, is liable for the proximate results of his failure to any person to whom he owes performance of such duty.'" Leir, 325 N.W.2d at 848 (quoting State v. Ruth, 9 S.D. 84, 90, 68 N.W. 189, 190 (1896)).
This Court has previously defined ministerial acts 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.
Hansen, 1998 SD 109, P23, 584 N.W.2d at 886 (citing 57 AmJur2d Municipal, County, School & State Tort Liability 120 (1988)) (emphasis in original).