THE STATE OF SOUTH CAROLINA
In The Supreme Court
Rebekah Wooten, a
minor by her, Guardian
ad Litem, Margaret
Highways and Public
Margaret Wooten, Respondent,
Highways and Public
ON WRIT OF CERTIORARI TO THE COURT OF
Appeal From Greenville County
Paul M. Burch, Judge
Opinion No. 24877
Heard November 17, 1998 - Filed January 18, 1999
AFFIRMED AS MODIFIED
Charles E. Carpenter, Jr., of Richardson, Plowden,
Carpenter & Robinson, P.A., of Columbia; and Merl
F. Code, of Code Law Firm, of Greenville, for
W. Harold Christian, Jr., of Christian & Davis, of
Greenville, for respondents.
MOORE, A.J.: We granted a writ of certiorari to review the
Court of Appeals' decision1 regarding petitioner's (DOT's) claim of
immunity under the Tort Claims Act. We affirm as modified herein
Twelve-year-old Rebekah Wooten was injured when she attempted to
cross Wade Hampton Boulevard at Memorial Drive on her way home from
school. Rebekah had crossed three lanes of traffic and reached the median
in the middle of the road when the light changed. Although traffic on the
other side of the median waited for Rebekah in two lanes of traffic, a car
approaching in the middle lane struck her before she finished crossing.
Rebekah and her mother (respondents) commenced these actions for
negligence and loss of consortium alleging DOT was negligent in failing to
provide traffic lights that would allow adequate time for a pedestrian to
cross, or provide pedestrian walk signals, or to warn pedestrians of the
hazardous nature of the intersection. The jury returned verdicts for
respondents. DOT appealed the denial of its post-trial motions. The
Court of Appeals affirmed.
1) Does absolute immunity for highway design apply in this case?
2) Does the evidence establish DOT was entitled to discretionary
immunity for signs, signals, and warning devices as a matter of
1) Design immunity
The Tort Claims Act provides certain exceptions to a government
entity's waiver of immunity. Under S.C. Code Ann. § 15-78-60 (15) (Supp.
1997), government entities "are not liable for the design of highways and
other public ways." DOT claimed in post-trial motions it was entitled to
this immunity as a matter of law in this case.
The trial court ruled the applicable immunity was not absolute
immunity for highway design but immunity for the maintenance of traffic
signals under §15-78-60 (15). This section provides immunity for liability
absence, condition, or malfunction of any sign, signal, [or]
warning device... unless the absence, condition, or
malfunction is not corrected by the governmental entity
responsible for its maintenance within a reasonable time after
actual or constructive notice.... Nothing in this item gives
rise to liability arising from a failure of any governmental
entity to initially place any of the above signs, signals, [or]
warning devices ... when the failure is the result of a
discretionary act of the governmental entity.
On appeal, the Court of Appeals held DOT had design immunity but
it was not perpetual. Once DOT had notice the intersection was
specifically identified as "those used in connection with hazards normally
connected with the use of public ways."
hazardous, it was no longer immune from liability. Since there was
evidence DOT had notice before the injury in this case, the Court of
Appeals concluded DOT had not established it was entitled to design
immunity as a matter of law and its post-trial motions were properly
We agree with the result reached by the Court of Appeals but adopt
the reasoning of the trial court. A specific statutory provision prevails
over a more general one. Atlas Food Systems & Serv., Inc. v. Crane., 319
S.C. 556, 462 S.E.2d 858 (1995). Here, the immunity provision regarding
signs and signals is the more specific one applicable to these facts and
therefore controls in this case. Accordingly, the trial judge's ruling was
2) Discretionary immunity for signs, signals, and warning devices.
As quoted above, § 15-78-60 (15) provides discretionary immunity for
the failure of a government entity to initially place signs, signals, or
warning devices. The Court of Appeals ruled there was conflicting
evidence on this issue and it was properly submitted to the jury. We
Discretionary immunity is contingent on proof the government entity,
faced with alternatives, actually weighed competing considerations and
made a conscious choice using accepted professional standards. Summer v.
Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Strange v. South Carolina
Dept. of Highways and Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994).
Rochelle Garrett, an assistant district traffic engineer, testified for
DOT. Garrett testified there was no history of complaints regarding
pedestrian problems at this intersection and the intersection was "not
considered a pedestrian area." No pedestrian count was done at this
intersection, however, and Garrett admitted the intersection was
dangerous for pedestrians.
Because the traffic signal is traffic-actuated, the crossing time
allowed a pedestrian varies. The minimum time allowed is eight seconds
to cross the width of the road which is 112 feet. This crossing time would
therefore require a crossing speed of fourteen feet per second. Garrett
testified a reasonable crossing speed is four feet per second and the
median is not designed for pedestrians to wait in the middle of the road.
Further, Garrett testified DOT guidelines mandate that pedestrian
signals and detectors be installed -when there is not adequate time to cross
even when such signals are not otherwise warranted because of the
amount of pedestrian traffic. The guidelines specify that pedestrians
should be assured sufficient time to cross the roadway at an intersection
controlled by traffic lights. Whether DOT complied with these guidelines
or any appropriate professional standard was at least a jury issue under
Garrett's own testimony. The Court of Appeals correctly held
discretionary immunity was a jury issue in this case.
AFFIRMED AS MODIFIED.
FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ.. concur.