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.