¶1(dissenting).
¶2Only the Legislature has the power and responsibility to “direct by law in what, manner and in what courts suits may be brought against the state.” S.D. Const. art. 3, § 27. In Merrill v. Birhanzel, 310 N.W.2d 522, 524 (S.D.1981), we said:
We have consistently held that if there is to be a departure from the immunity rule, the policy must be declared and the extent of liability fixed by the legislature. Arms v. Minnehaha County, 69 S.D. 164, 7 N.W.2d 722 (1943). We adhere to this rule although we recognize that it has been subjected to considerable criticism. Conway, [v. Humbert, 82 S.D. 317, 145 N.W.2d 524], supra; Jerauld County v. Saint Paul-Mercury Indemnity Co., 76 S.D. 1, 71 N.W.2d 571 (1955).
¶3The majority follows our decisions in Sioux Falls Const. Co. v. City of Sioux Falls, 297 N.W.2d 454 (S.D.1980); Kruger v. Wilson, 325 N.W.2d 851 (S.D.1982); National Bank of South Dakota v. Leir, 325 N.W.2d 845 (S.D.1982), which ignore this long standing adherence to the immunity rule. It little by little adopts the very departure policy which we have steadfastly and correctly proclaimed was constitutionally the exclusive prerogative of the Legislature.