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.
