KONENKAMP, Justice.

[¶ 1.] Responding to an emergency, a volunteer firefighter speeding on his way to the fire station struck a vehicle crossing an intersection, injuring the plaintiff and his passenger. In the suit against the firefighter and his local fire district, plaintiff alleged that the firefighter's conduct was willful, wanton, and reckless and that the fire department negligently trained the firefighter and inadequately equipped the firefighter's vehicle. The circuit court dismissed the suit on summary judgment, ruling as a matter of law that there was insufficient evidence the firefighter and fire district acted willfully, wantonly, or recklessly under SDCL 20-9-4.1.

Background

[¶ 2.] Tim Bauman is a volunteer firefighter for the Chester Fire Department in the Chester Rural Fire Protection District. On the 4th of July in 2007, Bauman and his wife, Cheryl, were at a celebration in Wentworth, South Dakota. Cheryl is a volunteer first responder and an EMT. While at the celebration, Bauman received a page from Chester Fire directing him to respond to a fire. They left the celebration in Bauman's personal pickup. He activated his hazard lights and sped toward the fire hall. When Bauman was traveling south on Lake County Road 15, he came over a hill and saw a north-bound vehicle positioned to make a left turn where the road intersected with Horizon Heights Road. Cheryl also saw the vehicle and said, "Oh, no, don't go, don't go," and then, "Oh, thank God, they're not going to go." But the driver, Areyman Gabriel, then proceeded into the intersection. Bauman later explained that although he slowed his vehicle near the intersection, at which he had the right of way, Gabriel's north-bound vehicle turned directly in front of him. Bauman slammed on his brakes, but could not avoid the collision. Both Gabriel and his passenger, Mandi Gronseth, were injured.

[¶ 3.] Gronseth brought suit against Bauman and Chester Fire in the United States District Court for the District of South Dakota. She alleged that Bauman was negligent, which negligence proximately caused her injuries. She further claimed that Chester Fire was vicariously liable for Bauman's negligence under the doctrine of respondeat superior. Gronseth later dismissed her claim against Bauman. Chester Fire moved for summary judgment asserting that Bauman was immune from liability under SDCL 20-9-4.1, which immunity extended to Chester Fire. The statute, known as the "Good Samaritan statute," provided at the time:

Id.

[¶ 4.] Before ruling on Chester Fire's motion for summary judgment, the federal district court recognized that this Court had not yet interpreted SDCL 20-9-4.1. Therefore, the district court certified the following question to the South Dakota Supreme Court:

In re Certification of a Question of Law, 2010 S.D. 16, ¶ 6, 779 N.W.2d 158, 161 (alteration in original). We answered:

Id. ¶ 16.

[¶ 5.] While Gronseth's federal suit was pending, Gabriel brought suit in state court against Bauman and Chester Fire. He, like Gronseth, alleged that Bauman was negligent and Chester Fire was vicariously liable for Bauman's negligence. Gabriel further alleged that Chester Fire negligently trained Bauman and failed to equip his vehicle appropriately. After this Court's decision in Certification of a Question of Law, 2010 S.D. 16, 779 N.W.2d 158, Gabriel amended his complaint to allege that Bauman's conduct was willful, wanton, or reckless. He then reasserted that Chester Fire was vicariously liable for Bauman's negligence and that Chester Fire negligently trained Bauman and inadequately equipped Bauman's vehicle, which conduct proximately caused injury to Gabriel.

[¶ 6.] Bauman and Chester Fire moved for summary judgment on the ground that Bauman's conduct was not willful, wanton, or reckless as a matter of law. During the hearing, Bauman and Chester Fire directed the circuit court to cases interpreting the phrase "willful and wanton misconduct" from our long-repealed guest statute. See, e.g., Melby v. Anderson, 64 S.D. 249, 266 N.W. 135 (1936) (citing our former guest statute, which has been repealed by 1978 S.D. Sess. Laws ch. 240, § 1). Relying on these cases, Bauman and Chester Fire insisted that Gabriel must prove that Bauman consciously realized that by speeding in response to an emergency he would in all probability collide with Gabriel's vehicle. Chester Fire further asserted that SDCL 20-9-4.1 extended immunity to Chester Fire against Gabriel's negligent training and equipment claims.

[¶ 7.] At the conclusion of the hearing, the circuit court orally granted Bauman and Chester Fire summary judgment. It ruled that "[t]here was nothing beyond the speed of Mr. Bauman that was a factor in this accident from his conduct[,]" and based on the law, "speed alone is insufficient." The court further ruled that "the training and equipment issue[s]" with Chester Fire "were not willful, wanton, or reckless" as a matter of law.

[¶ 8.] In this appeal, Gabriel asserts that the circuit court erred when it granted summary judgment to Bauman because (1) the cases interpreting the repealed guest statute are not controlling, (2) speed alone may constitute willful, wanton, or reckless conduct, and (3) there are additional circumstances beyond Bauman's speed to support a finding that Bauman acted willfully, wantonly, or recklessly. Gabriel also asserts that the court erred when it granted summary judgment to Chester Fire because Chester Fire's administrative decisions related to training and equipment do not meet the "during an emergency" requirement of SDCL 20-9-4.1.1

Analysis and Decision

[¶ 9.] Gabriel maintains that the circuit court erroneously relied on South Dakota's repealed guest statute to rule as a matter of law that Bauman did not act willfully, wantonly, or recklessly. See SDCL 32-34-1 (repealed by 1978 S.D. Sess. Laws ch. 240, § 1). Under that statute, a passenger in a vehicle could not recover damages from the vehicle owner or operator for negligence unless there was "willful and wanton misconduct of the owner or operator" and that misconduct contributed to the guest's injury. Id. Emphasizing the absence of the word "reckless" and highlighting that the guest statute used the conjunctive "and," Gabriel argues that "willful and wanton misconduct" cannot invoke the same statutory standard as a "willful, wanton, or reckless act of commission or omission[.]" Moreover, he argues that there is no support for the court's declaration that speed alone can never rise to the level of willful, wanton, or reckless conduct. Finally, Gabriel contends that he presented sufficient evidence in addition to Bauman's speed to establish that there is an issue of material fact in dispute on whether Bauman's conduct was willful, wanton, or reckless.

[¶ 10.] In granting Bauman and Chester Fire summary judgment, the circuit court did not identify what standard it used under SDCL 20-9-4.1 or what language it found persuasive from our cases interpreting the repealed guest statute. Nonetheless, at the close of the hearing, the court ruled:

Bauman and Chester Fire assert that although the guest statute has been repealed, this "Court's directives regarding the meaning of willful, wanton, or reckless misconduct remain authoritative[.]"

[¶ 11.] We have not before interpreted what is meant by the language "willful, wanton, or reckless act of commission or omission" under SDCL 20-9-4.1. But we have defined "willful and wanton misconduct" in the context of our repealed guest statute, see Melby, 64 S.D. 249, 266 N.W. at 137 (adopting the definition), "willful misconduct" in the context of our workers' compensation statutes, see Holscher v. Valley Queen Cheese Factory, 2006 S.D. 35, ¶ 48, 713 N.W.2d 555, 567-68, "willful and wanton misconduct" in the context of certain criminal statutes, see State v. Seidschlaw, 304 N.W.2d 102, 105-06 (S.D.1981), willful, wanton, or malicious in the context of punitive damages, see Berry v. Risdall, 1998 S.D. 18, ¶ 33, 576 N.W.2d 1, 9, and "reckless" in the context of release agreements, see Holzer v. Dakota Speedway, Inc., 2000 S.D. 65, ¶ 17, 610 N.W.2d 787, 793. In these cases, we have consistently declared that willful, wanton, and reckless conduct "partakes to some appreciable extent, though not entirely, of the nature of a deliberate and intentional wrong." Melby, 64 S.D. 249, 266 N.W. at 137; see Holscher, 2006 S.D. 35, ¶ 48 n. 2, 713 N.W.2d at 568 n. 2; Berry, 1998 S.D. 18, ¶ 35, 576 N.W.2d at 9. "`Conduct is gross, willful, wanton, or reckless when a person acts or fails to act, with a conscious realization that injury is a probable, as distinguished from a possible (ordinary negligence), result of such conduct.'" Holzer, 2000 S.D. 65, ¶ 17, 610 N.W.2d at 793 (quoting Lee v. Beauchene, 337 N.W.2d 827, 828 (S.D. 1983)); see Melby, 64 S.D. 249, 266 N.W. at 137. We have also said that a defendant must have "an affirmatively reckless state of mind." Allen v. McLain, 74 S.D. 646, 649, 58 N.W.2d 232, 234 (1953) (emphasis added); Espeland v. Green, 74 S.D. 484, 489, 54 N.W.2d 465, 467 (1952).

[¶ 12.] Gabriel does not challenge these definitions. Rather, he contends that the Legislature meant something different in SDCL 20-9-4.1 by using the word "reckless" and the disjunctive "or." But the prevailing view among courts defining these terms is that "willful," "wanton," and "reckless" most commonly mean the same thing.2 In essence, most authorities recognize that all three terms signify an actor's mental state and look to whether the actor intended to do an act that was of an unreasonable character, in disregard of a known or obvious risk, which risk was so great as to make it highly probable that harm would result. See W. Page Keeton, et al., Prosser and Keeton on the Law of Torts § 34 (5th ed.1984).

[¶ 13.] Thus, the circuit court did not err when it used this Court's definition of "willful and wanton misconduct" from our repealed guest statute to gauge whether Bauman's conduct was willful, wanton, or reckless under SDCL 20-9-4.1. Yet we question the circuit court's ruling that speed alone would not be sufficient to rise to the level of willful, wanton, or reckless conduct. We might conceive of instances where a driver's speed alone would become willful, wanton, or reckless under SDCL 20-9-4.1.

[¶ 14.] Regardless, Gabriel is not claiming that Bauman's speed alone constituted willful, wanton, or reckless conduct. He contends that additional facts combined with speed create a jury question sufficient to survive summary judgment. Specifically, Gabriel points to the fact that (1) Bauman was trained and instructed by Chester Fire to obey the speed limits and other rules of the road, (2) Chester Fire Chief, Steve Heyn, testified that Chester Fire chose not to equip personal vehicles with emergency lights because of a concern that the firefighters would drive "like cowboys," (3) the collision occurred on the 4th of July, which Bauman knew would cause an increase in traffic, (4) Bauman saw Gabriel's vehicle at least 887 feet before the collision and heard Cheryl say, "Oh no, don't go," and (5) Bauman did not attempt to apply the breaks until 96 feet before the collision.

[¶ 15.] In reviewing whether the court erred in granting summary judgment, we ask not only whether there is a conflict in the evidence, but also whether the undisputed facts are such that reasonable minds might differ in interpreting them in arriving at different conclusions on whether the defendant was willful, wanton, or reckless. Whether one acts willfully, wantonly, or recklessly is, like negligence, normally a jury question. See State v. Tammi, 520 N.W.2d 619, 622 (S.D.1994); Campbell v. Massucci, 190 Ohio App.3d 718, 944 N.E.2d 245, 251 (2010).

[¶ 16.] Because willfulness, wantonness, or recklessness "is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied." W. Page Keeton et al., Prosser and Keeton Handbook on the Law of Torts § 34, at 212-14. The conduct must be more than mere mistake, inadvertence, or inattention. There need not be an affirmative wish to injure another, but, instead, a willingness to injure another. "[A] defendant's reckless state of mind may be inferred from conduct and actions so patently dangerous that a reasonable person under the circumstances would know, or should know, that his conduct will in all probability prove disastrous[.]" Wittmeier v. Post, 78 S.D. 520, 526, 105 N.W.2d 65, 68 (1960). On the other hand, this Court warned long ago that if we draw the line of willful, wanton, or reckless conduct too near to that constituting negligent conduct, we risk "opening a door leading to impossible confusion and eventual disregard of the legislative intent ... to give relief from liability for negligence." Espeland, 74 S.D. at 490-91, 54 N.W.2d at 468.

[¶ 17.] Under the undisputed facts, this case is controlled by Gunderson v. Sopiwnik. In Gunderson, a guest statute case, this Court observed that a defendant's driving, nearly identical to Bauman's, failed to demonstrate a conscious realization that an accident was probable rather than possible. See 75 S.D. 402, 408, 66 N.W.2d 510, 513 (1954). We quote the Court:

Id. (emphasis added).

[¶ 18.] Taken in a light most favorable to Gabriel, the facts of this case show that Bauman was speeding to the fire station with his hazard lights engaged. Bauman saw that Gabriel's vehicle intended to turn, but Bauman had the right of way and he did not think Gabriel's vehicle was going to turn in front of him. Despite an unobstructed view of Bauman's oncoming vehicle for approximately 887 feet, Gabriel turned in front of Bauman. Bauman attempted to avoid the accident, but was unable to stop in time.

[¶ 19.] Reasonable persons may understand that they should not exceed the speed limit and that by exceeding the speed limit, they are undertaking a risk of causing an accident. Under our case law, however, reasonable persons under the same or similar circumstances present in this case would not have consciously realized that speeding would — in all probability — result in the accident that occurred. Nothing in the record can support a jury finding that Bauman consciously realized, before it was too late to avoid the collision, that Gabriel would in all probability turn in front of him. See id. at 408, 66 N.W.2d at 513. We affirm summary judgment for Bauman.

[¶ 20.] On the other hand, the circuit court erred when it granted summary judgment to Chester Fire on Gabriel's negligent training and equipment claims based on the immunity in SDCL 20-9-4.1. Although Chester Fire contends that the immunity in SDCL 20-9-4.1 extends to Gabriel's direct negligence claim, because the claim arises out of Bauman's rendering of emergency services, SDCL 20-9-4.1 does not protect the acts of a fire department or fire district. The statute provides immunity to a "peace officer, conservation officer, member of any fire department, police department and their first aid, rescue or emergency squad, or any citizen acting as such as a volunteer, or any other person[.]" Id. Unlike the cases cited by Chester Fire, our statute does not specifically include a fire department or district or define "person" to include a fire district or fire department. Compare SDCL 20-9-4.1 with Cubit v. Mahaska Cnty., 677 N.W.2d 777, 782 (Iowa 2004) (statute applies to municipality); District of Columbia v. Walker, 689 A.2d 40, 49 (D.C.1997) (statute includes district); Stevenson v. Capital Fire Mut. Aid Sys., Inc., 163 Vt. 623, 661 A.2d 86, 87 (1995) (specifically relates to municipality). Chester Fire is not immune under SDCL 20-9-4.1.3

[¶ 21.] Chester Fire also asserts that it is protected from liability by sovereign immunity. But Chester Fire did not plead or raise sovereign immunity as an affirmative defense in its answer to Gabriel's complaint or amended complaint. Immunity from liability for damages under SDCL 21-32A-3 must be timely asserted and "[m]ere conclusory allegations are not substitutes for specific facts." See Olesen v. Town of Hurley, 2004 S.D. 136, ¶ 12, 691 N.W.2d 324, 328. The dissent dismisses Chester Fire's failure to specifically plead the affirmative defense because Chester Fire pleaded that it was "immune" generally and made one statement during its argument at the November 2012 summary judgment hearing that Chester Fire is a public body, Bauman is a public employee, and discretionary acts are exempt and immune. The dissent further contends that Chester Fire is immune from suit unless and until Gabriel proves that Chester Fire waived its immunity under SDCL 21-32A-3.

[¶ 22.] Chester Fire is not immune from suit in the same way the State enjoys sovereign immunity protection. "We must remind ourselves (and the Legislature) that the state's sovereign immunity is the state's sovereign immunity and nothing more. It belongs to the state and to no one else." Aune v. B-Y Water Dist., 464 N.W.2d 1, 5 (S.D.1990); see Cromwell v. Rapid City Police Dep't, 2001 S.D. 100, ¶ 13, 632 N.W.2d 20, 24. Rather, the South Dakota Legislature "extended the reach of sovereign immunity to all public entities of this state," by adopting SDCL 21-32A-3. Cromwell, 2001 S.D. 100, ¶ 13, 632 N.W.2d at 24. In doing so, the Legislature specifically imposed the burden on a public entity to invoke its immunity as an affirmative defense. See, e.g., Elkjer v. City of Rapid City, 2005 S.D. 45, ¶ 7, 695 N.W.2d 235, 238 (City did not raise the defense, so sovereign immunity not directly in issue); Olesen, 2004 S.D. 136, ¶ 13, 691 N.W.2d at 328 (sovereign immunity waived).

[¶ 23.] At no point did Chester Fire make a specific request that the circuit court address the issue of sovereign immunity. Raising a legal argument for the first time in an appellate brief limits the opposing party's ability to respond. Had the issue been specifically raised below, "the parties would have had an opportunity to consider whether additional evidence was needed to decide the issue and certainly would have had an opportunity to brief the issue for the trial court's consideration." Hall v. State, 2006 S.D. 24, ¶ 12, 712 N.W.2d 22, 27. Moreover, "[w]e will ordinarily decline to review issues not properly presented to the trial court." Estate of Gaspar v. Vogt, Brown & Merry, 2003 S.D. 126, ¶ 15, 670 N.W.2d 918, 924 (citation omitted); see also Steiner v. Cnty. of Marshall, 1997 S.D. 109, ¶ 27, 568 N.W.2d 627, 633 (citation omitted).

[¶ 24.] It would be improvident to declare that Chester Fire is protected by sovereign immunity when the record before us is scant and the allegations by Chester Fire are conclusory. The circuit court granted summary judgment solely under SDCL 20-9-4.1. If we, like the dissent, were to make inferences from Chester Fire's statements, we could just as easily rule that Chester Fire has insurance and, therefore, has waived sovereign immunity under SDCL 21-32A-3. Chester Fire alluded to the existence of insurance during a partial summary judgment hearing in August 2012, when it discussed sovereign immunity and argued that it did not waive immunity on Gabriel's claim for punitive damages, because there was no insurance coverage for punitive damages. In any event, there is no record evidence either way concerning risk-pool and insurance coverage; therefore, there are genuine issues of material fact on that issue. "Summary judgment is appropriate under SDCL 15-6-56 when the entire record reveals that there is no genuine issue on any material fact and that the moving party is entitled to a judgment as a matter of law. If there are genuine issues of material fact, then summary judgment is improper." Fisher v. Kahler, 2002 S.D. 30, ¶ 5, 641 N.W.2d 122, 124-25 (citations omitted). Because Chester Fire did not affirmatively assert its immunity from suit under SDCL 21-32A-3, we decline to decide the sovereign immunity issue.4

[¶ 25.] Affirmed in part, reversed in part, and remanded.

[¶ 26.] ZINTER, SEVERSON and WILBUR, Justices, concur.

[¶ 27.] GILBERTSON, Chief Justice, dissents.

GILBERTSON, Chief Justice (dissenting).

[¶ 28.] I respectfully dissent. The Court correctly notes that SDCL 20-9-4.1 does not directly protect the acts of a fire department or fire district. However, as the South Dakota Constitution is the "mother law" which provides sovereign immunity5 protection, resort to SDCL 20-9-4.1 is unnecessary. See Davis v. State, 2011 S.D. 51, ¶ 76, 804 N.W.2d 618, 643 (Gilbertson, C.J., concurring in result) (citations omitted). Despite the circuit court's erroneous reliance on SDCL 20-9-4.1, "on appeal this Court will affirm the circuit court's ruling granting a motion for summary judgment if any basis exists to support the ruling." Stern Oil Co. v. Brown, 2012 S.D. 56, ¶ 9, 817 N.W.2d 395, 399 (citing Discover Bank v. Stanley, 2008 S.D. 111, ¶ 19, 757 N.W.2d 756, 762). In this case, Chester Fire adequately carried its burden of proving that it is entitled to governmental immunity,6 as expressed by our Constitution7 and our case law and recognized by SDCL 21-32A-3.

[¶ 29.] The common-law doctrine of sovereign immunity was incorporated into Article III, § 27 of the South Dakota Constitution. "Sovereign immunity `prevents the governing acts of the state, its agencies, other public entities, and their employees from attack in court without the state's consent.'" Dan Nelson, Auto., Inc. v. Viken, 2005 S.D. 109, ¶ 27, 706 N.W.2d 239, 249 (quoting Wulf v. Senst, 2003 S.D. 105, ¶ 20, 669 N.W.2d 135, 142). "The legislature within constitutional limitations unquestionably has control over the liability to which the state and its governmental subdivisions and agencies may be subjected for tort." Conway v. Humbert, 82 S.D. 317, 322, 145 N.W.2d 524, 527 (1966). See also Bickner v. Raymond Twp., 2008 S.D. 27, ¶ 10, 747 N.W.2d 668, 671 ("Sovereign immunity is the right of public entities to be free from liability for tort claims unless waived by legislative enactment.") (citation omitted). This Court has long held "that if there is to be a departure from the rule of governmental immunity it should result from legislative action." Cromwell, 2001 S.D. 100, ¶ 23, 632 N.W.2d at 26 (quoting High-Grade Oil Co. v. Sommer, 295 N.W.2d 736, 738 (S.D.1980)). Moreover, any abrogation must be express. Rupert v. City of Rapid City, 2013 S.D. 13, ¶ 33, 827 N.W.2d 55, 67 (citation omitted).

[¶ 30.] In Conway v. Humbert, this Court recognized that "[t]he power to organize a fire department for prevention of injury and damage by fire is clearly governmental and, in the absence of statutory provision to the contrary, a municipality will not ordinarily be liable for the negligent acts of firemen in the performance of their duties." 82 S.D. at 321, 145 N.W.2d at 527 (citations omitted). This immunity did not stem from statutory language whereby the Legislature explicitly stated that municipalities were cloaked in immunity from liability. Rather, municipalities were cloaked in sovereign immunity, because "in the performance of a governmental function a municipal corporation acts as agent of the state and partakes of its sovereignty with respect to immunity." Id., 145 N.W.2d at 526 (citation omitted). The Legislature simply categorized towns as "bodies corporate" and authorized them to carry out governmental functions. See generally Territory of Dakota Laws of 1872-73, ch. 51 (establishing towns and townships). The approach taken by this Court of looking at the function of the entity was finally memorialized in part in 1986, when the Legislature defined a public entity as "the State of South Dakota, all of its branches and agencies, boards and commissions[, and] all public entities established by law exercising any part of the sovereign power of the state ... and all other legal entities that public entities are authorized by law to establish." SDCL 3-21-1(2). The same year, the Legislature statutorily recognized that such entities were immune from liability unless immunity was waived by participation in a risk sharing pool or insurance. SDCL 21-32A-3.8 These acts of the Legislature finally recognized in statute what this Court had long acknowledged from common law: that immunity from suit extended to all public entities performing a governmental function. See Conway, 82 S.D. at 322, 145 N.W.2d at 527 (acknowledging that abrogating "the common law rule of governmental immunity would apply to all governmental entities including counties, townships, school districts and the like"); see also Plumbing Supply Co., 32 S.D. 270, 142 N.W. at 1132 (recognizing that counties, civil townships, and school districts "are the agents of the state for the purpose of carrying into effect the functions of government, and as such are not liable to be sued civilly for damages caused by neglect to perform such duties" (emphasis added)).

[¶ 31.] The Court declines to address the issue of sovereign immunity, stating that Chester Fire's assertion of the defense was a "mere conclusory allegation," and should therefore fail. I do not agree. The record reflects that Chester Fire asserted it was immune in its answer, offered tangible evidence of its status as a public entity as recognized by the State, and argued the applicable rules of law qualifying it for governmental immunity from liability. It continues to persuasively argue these rules of law on appeal to this Court.

[¶ 32.] In its answers to Gabriel's complaint and amended complaint, Chester Fire stated, "These Defendants allege that they are entitled to immunity for any claims asserted by the Plaintiff." The answer was not qualified by limitation. Chester fire supported this claim to defense with factual evidence of its status as a public entity. In an affidavit supporting Chester Fire's opposition to Gabriel's motion for summary judgment, counsel submitted Chester Rural Fire Protection District's registration with the State as a rural fire protection district and a copy of SDCL 34-31A-16, which designates properly organized rural fire protection districts as "bod[ies] politic and corporate."9 This affidavit was later incorporated into Chester Fire's motion for summary judgment. In a separately asserted argument Chester Fire denied liability under SDCL 20-9-4.1, because Bauman's conduct was not willful, wanton, or reckless.

[¶ 33.] Although Chester Fire did not use the term "sovereign immunity," the record reflects that Chester Fire argued the applicable rule of law in this case using the terms "immunity" and "government immunity." See supra n.6. Specifically, at the summary judgment hearing Chester fire argued:

[¶ 34.] Chester Fire's arguments to the circuit court as to "government immunity" sufficiently reflect the applicable rules of law. Rural fire protection districts are a type of public entity created by the Legislature to carry out a government function.10 Generally, public entities are immune from liability when carrying out discretionary governmental functions. See SDCL 21-32A-3; Wilson v. Hogan, 473 N.W.2d 492, 494 (S.D.1991) (citing Gasper v. Freidel, 450 N.W.2d 226, 230 (S.D.1990); Aune, 464 N.W.2d at 3 (additional citations omitted)). We have recognized that the State cannot extend governmental immunity to proprietary functions, even if carried out by a public entity. Aune, 464 N.W.2d at 5; see also Oien v. City of Sioux Falls, 393 N.W.2d 286, 290 (S.D.1986). Public entities are only protected like the State from liability when they are acting like the State in carrying out governmental functions. Chester Fire carried its burden of proving it was a public entity — a registered rural fire protection district authorized by SDCL 34-31A-16 — and that it was carrying out the governmental function of fire protection.

[¶ 35.] Gabriel's claims against Chester Fire stem from alleged negligence in training and equipping Bauman. However, as argued by Chester Fire, the functions of training and equipping the firefighters are discretionary functions. "In order to find a duty `ministerial,' [as opposed to discretionary,] we must find a `governing rule or standard' so clear and specific that it directs the government actor without calling upon the actor to ascertain how and when to implement that rule or standard." Truman v. Griese, 2009 S.D. 8, ¶ 22, 762 N.W.2d 75, 81. There is no clear and specific governing rule for the training and equipping of a fire crew by a rural fire protection district. Rather, there is a general grant of authority. See SDCL 34-31A-17 (granting fire protection districts the "general powers ... to organize, establish, equip, maintain, and supervise a fire department or company to serve the district" (emphasis added)). This direction given by statute is not so clear and specific that "one could ... pluck an ordinary citizen off the street and expect they could successfully execute the duties" of training and equipping a fire crew. See Truman, 2009 S.D. 8, ¶ 22, 762 N.W.2d at 81 (quoting Hansen v. S.D. Dep't of Transp., 1998 S.D. 109, ¶ 29, 584 N.W.2d 881, 887-88). Thus, Chester Fire was immune from liability in carrying out these duties, because they were discretionary governmental functions performed by a public entity. Gabriel raised no applicable argument to refute this grant of immunity.

[¶ 36.] On appeal, Gabriel's only counter to Chester Fire's governmental immunity defense is that Chester Fire failed to carry its "burden of showing that it has not waived sovereign immunity pursuant to SDCL 21-32A-1." This argument inappropriately places upon Chester Fire the burden of raising and refuting an exception to the general rule of immunity. We have held that the party raising the affirmative defense of immunity has the burden of proving that it is entitled to immunity. Masad v. Weber, 2009 S.D. 80, ¶ 15, 772 N.W.2d 144, 152-153. However, "[t]he party opposing summary judgment must establish the specific facts which show that a genuine and material issue for trial exists." Wulf, 2003 S.D. 105, ¶ 18, 669 N.W.2d at 142 (citation omitted).

[¶ 37.] In this case, Chester Fire established it was entitled to immunity as a public entity. Chester Fire's governmental immunity did not originate from its lack of insurance, such that Chester Fire must prove lack of insurance to establish its entitlement to immunity. Rather, as SDCL 3-21-1 indicates, the purchase of insurance coverage acts as an exception, waiving the long-recognized immunity from liability to the extent the entity can be shown to have purchased insurance covering the specific harm alleged. See Patterson Farm, Inc. v. City of Britton, 22 F.Supp.2d 1085, 1094 (D.S.D.1998) (noting that city's immunity was not waived as to pollution claims because insurance policy specifically excluded coverage).

[¶ 38.] Governmental immunity can be waived by various means.11 Nevertheless, as previously noted, any abrogation must be express.12 Accordingly, once a defendant public entity establishes that it is entitled to immunity, the burden of production should shift to the plaintiff to establish specific facts showing that the defendant has waived immunity, and therefore "a genuine and material issue for trial exists." See Wulf, 2003 S.D. 105, ¶ 18, 669 N.W.2d at 142 (citation omitted).13 In this case, Gabriel as the non-moving party needed to establish the existence of a genuine issue of material fact, i.e., that Chester Fire waived its immunity by purchasing insurance that covered Gabriel's claim.14 Gabriel did not raise the issue of insurance or any other means by which Chester Fire allegedly waived its immunity. Therefore, I would affirm summary judgment in favor of Chester Fire based on governmental immunity.