Vilhauer v. Horsemens' Sports, Inc. ( 1999 )

AMUNDSON, Justice

(concurring specially).

[¶ 31.] I write specially to iterate that this case is not controlled by Kyllo v. Panzer, 535 N.W.2d 896 (S.D.1995). Issue one in Kyllo was: ‘Whether the trial courts improperly determined that SDCL 21-32-17 and 21-32A-2 are unconstitutional to the extent they purport to limit damages for a state employee’s negligence when performing ‘ministerial’ acts?” 535 N.W.2d at 897. This Court held that: “Considering the history of sovereign immunity, the common law of negligence and the South Dakota Constitution, we agree that SDCL 21-32-17 and 21-32A-2 are unconstitutional so far as they extend sovereign immunity to state employees performing ministerial functions.” Kyllo, 535 N.W.2d at 903. Unlike Kyllo, the present case has nothing to do with sovereign immunity or whether state employees are performing discretionary or ministerial functions. Further, this case does not close the doors to the courthouse as was the case in Kyllo, 535 N.W.2d at 903. Consequently, the decision in Kyllo does not support the holding of the trial court regarding this constitutional issue.