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.
