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.