Wednesday, March 5, 2014

The Longest South Carolina Immunity

Easily the longest Tort Claims Act immunity is § 15-78-60 (15), which grants immunity for the “absence, condition, or malfunction of any sign, signal warning device, etc.” on a public way. Under S.C. Code Ann. § 58-12-300 (8), “Public right-of-way” means the area on, below, or above a public roadway, highway, street, public sidewalk, alley, or waterway. Certain exceptions do apply and that’s where it can get tricky. If the government entity responsible has notice of a defect on the public way and they have had reasonable time to act, then they can be held liable.
            The tension in the immunity arises when the design immunity ends and becomes discretionary immunity. Design immunity gives the entity absolute immunity for liability arising from the design of highways and public ways. Wooten ex rel. Wooten v. S.C. Dept. of Transp., 333 S.C. 464, 511 S.E.2d 355 (1999); S.C.Code Ann. § 15–78–60(15). The rationale behind statutory design immunity is to avoid a jury reweighing the same factors which were already considered by the governmental entity that approved the design. Cameron v. State, 7 Cal.3d 318, 102 Cal.Rptr. 305, 497 P.2d 777 (1972). However, design immunity is not perpetual, and once the governmental entity receives notice of a hazardous condition, it may no longer invoke design immunity as an absolute shield for liability. Id at Wooten ex rel. Wooten.
            This brings up the question of discretionary immunity and whether a governmental entity can continue to maintain the defect after they are on notice. Discretionary immunity is contingent on proof the government entity, faced with alternatives, actually weighed competing considerations and made a conscious choice. Further, the entity must establish, in weighing the competing considerations and alternatives, it utilized accepted professional standards appropriate to resolve the issue. Strange v. S.C. Dept. of Hwys. & Pub. Transp., 314 S.C. 427, 429, 445 S.E.2d 439, 440 (1994). The governmental entity bears the burden of establishing discretionary immunity as an affirmative defense. Niver v. S.C. Dept. of Hwys. & Pub. Transp., 302 S.C. 461, 463, 395 S.E.2d 728, 730 (Ct.App.1990). The governmental entity must show that in weighing the competing considerations and alternatives, it utilized accepted professional standards appropriate to resolve the issue before it. Strange v. S. Carolina Dep't of Highways & Pub. Transp., 314 S.C. 427, 429, 445 S.E.2d 439, 440 (1994)
            In other words, the design immunity is an absolute shield since the governmental entity had no way of knowing there was a problem. Discretionary immunity is an affirmative defense raised after the entity has notice which the Plaintiff must dispute with evidence. While definitely the longest immunity in the exceptions to the Tort Claims Act, § 15-78-60 (d) offers a clear set of defenses for a governmental entity in South Carolina in regards to public ways.

Tuesday, February 25, 2014

Enforcing Ordinances and Immunity in South Carolina

The first question that gets asked when a municipality is sued in South Carolina is what immunities remain under the Tort Claims Act. Found under S.C. Code Ann. § 15-78-60.  the Act keeps immunities for the legislature and judiciary  for any “action or inaction”.  The Act extends this concept by protecting the exercise of discretion by an entity in connection with the adoption and enforcement of laws.

What these immunities allow are a way for people in government to go about their duties without the constant threat of litigation. A Judge needs to be able to make a ruling and let the record speak for their actions. A council member must be able to approve a new ordinance or a zoning board certify a new region without fear of reprisal. This policy is extended out to the employees and departments of the state who must enforce those ordinances.

For example, a City Fire Marshall inspecting a new building for compliance with the fire code noted that the owners were required to block off a parking space located adjacent to a fire hydrant. When the property owner asked what could be done to become compliant with the Cities ordinances, the Fire Marshal  suggested the three options that would be permitted by the ordinance. The cheapest option was to place a concrete barrier in front of the parking space adjacent to the fire hydrant. An invitee to the property owner’s establishment tripped over the barrier and injured herself. She subsequently sued the property owner and the City as the employer of the Fire Marshall for requiring a barrier which would allow access to the fire hydrant

The Court found the Fire Marshall was enforcing the local ordinance of the City. Under S.C. Code Ann. 15-78-60 (4) an employee is immune for enforcing any law or regulations. The Judge recognized that there was no legal basis for a claim against the Fire Marshall because he was enforcing the City’s fire code ordinances.  The Court rejected the invitee’s claim that the Fire Marshal had a duty beyond the requirements of the City’s ordinance in connection with the location of the barrier.