THE STATE OF SOUTH CAROLINA
In The Supreme Court
Mike Steinke and Mary
Steinke, individually and
representatives of the
estate of Zachary
Steinke; and Linda Nash
Given, individually and
representative of the
estate of Michael Nash, Respondents,
Department of Labor,
Appeal From Horry County
A. Victor Rawl, Circuit Court Judge
Opinion No. 24999
Heard May 12, 1999 - Filed September 7, 1999
AFFIRMED IN PART; REVERSED IN PART
Andrew F. Lindemann, William H. Davidson, II, and
David L. Morrison of Davidson, Morrison and
Lindemann, P.A., Columbia, for appellant.
John Kassel and John Nichols of Suggs and Kelly,
P.A., Columbia, and B. Randall Dong of Simpson,
Dong and Wingate, L.L.C., Columbia, for
WALLER, A.J.: Mike and Mary Steinke, the parents and personal
representatives of the estate of Zachary Steinke, and Linda Nash Given, the
mother and personal representative of the estate of Michael Nash
(Respondents), brought wrongful death actions against the South Carolina
Department of Labor, Licensing, and Regulation (Department). The jury
awarded the statutory beneficiaries of each teenager $1 million in actual
damages. Nash's award was reduced to $900,000 because the jury concluded
he was ten percent at fault.1
The trial judge denied Department's motions for a directed verdict,
a judgment notwithstanding the verdict, and a new trial. Department
appealed. The Court of Appeals certified this case to this Court because it
involves issues of significant public interest and legal principles of major
importance. See S.C. Code Ann. § 14-8-210(c) (Supp. 1998); Rule 204(b),
SCACR (formerly contained in Rule 214(b), SCACR)). We affirm in part and
reverse in part.
Zachary Steinke, a 17-year-old bungee jumper, and Michael Nash,
a 19-year-old bungee jump master, died August 10, 1993, when the steel cage
in which they were riding fell 160 feet to the ground at Beach Bungee, an
attraction near Myrtle Beach. Zachary's parents saw the accident happen. His
mother, a registered nurse, and his father tried to save Zachary by performing
Beach Bungee, Carolina Lane Holding Co., and the owners of the two
companies in an action brought in federal district court. The Fourth Circuit
affirmed on the issue of the owners' individual liability, but remanded for the
district court to decide whether the verdict should be reduced in light of a recent
United States Supreme Court opinion. Steinke v. Beach Bungee, Inc., 105 F.3d
192 (4th Cir. 1997.)
cardiopulmonary resuscitation upon him.
Beach Bungee's owners initially used a "crawlevator" to carry
bungee jumpers and sightseers to the top of a 160-foot metal arch. The
crawlevator was a chain-driven device that ran along the supports of the metal
arch. A steel cage attached to the crawlevator carried jumpers and spectators.
After a person jumped, the crawlevator lowered spectators and the suspended
jumper to the ground by slowly descending the arch. Although bungee jumping
was not regulated, Department considered the crawlevator a ride subject to
regulation under the South Carolina Amusement Rides Safety Code2 because
it carried spectators. Department issued a permit for the crawlevator in May
The crawlevator had persistent mechanical problems, sometimes
stalling or violently shaking passengers as the chain jerked along the track.
Beach Bungee owners took the crawlevator out of service in mid-July 1993.
They hired Marshall Beam, a local shrimp boat mechanic, to install an electric
winch and cable to lift the steel cage. Beam attached the winch to the base of
the arch, fashioned three pulleys to guide a single metal cable through the
structure of the metal arch, and connected the cable to the cage as it sat
beneath the center of the arch. Two stabilizing cables were attached to a static
line to prevent the cage from rotating or swaying, but they provided no actual
support for the cage. The winch could not be controlled from inside the cage.
The jump master used hand signals to tell the winch operator on the ground
when the cage was properly positioned for a jump. Operators also painted a
blue mark on the cable to identify the proper stopping point.
The accident occurred when the ride operator, owner Harold Morris,
became distracted during the three minutes or so it took the cage to travel to
the top of the arch. When Morris failed to stop the winch, it kept pulling the
three-eighths-inch cable after the cage jammed into the arch. Someone -
perhaps Zachary or Michael or spectators - cried, "Stop! Stop!" As horrified
onlookers watched, the single lifting cable snapped and the cage plummeted to
the ground. It was the sixth day the operators had used the winch and cable
Major defects in the system included the use of a single cable
without additional safety cables, incorrectly sized pulleys, a powerful winch
capable of snapping the single cable with relative ease, the lack of controls or
an emergency stop button inside the cage, and the lack of a device to shut off
the winch automatically when the cage reached the top of the arch.
Respondents alleged that Department failed to revoke or suspend
the license Department had issued, or adequately inspect or investigate the
crawlevator, after receiving troubling reports. Those reports were (1) a July 13,
1993, memorandum written by James Cates, a Department field supervisor; (2)
an August 5, 1993, telephone conversation between Henry J. McGinnis,
president of the Texas manufacturer of the arch and crawlevator, and Floyd
Padgett, director of Department's Office of Elevators and Amusement Rides;
and (3) an August 5, 1993, facsimile from McGinnis to Padgett.
Cates wrote the July 13, 1993, memo after Department received a
report of a malfunction of an electric winch at the ride. Emergency personnel
were called to the scene. No one was injured, but a jumper was suspended
upside down until repairs were made. Cates filed the memo away after
discussing the matter with Padgett. No Department official contacted the
Beach Bungee owners or visited the site because, Padgett testified, no one had
Arch maker McGinnis testified he telephoned Padgett on August 5,
1993. McGinnis told Padgett he had received a report that Beach Bungee may
have modified the crawlevator by installing a winch and cable to lift the cage.
That was not the system he had designed and McGinnis wanted to ensure any
changes had been inspected and approved by a licensed engineer. Beach
Bungee's owners and employees had refused to accept McGinnis's calls,
apparently due to the crawlevator's mechanical problems and the fact
McGinnis's company had not been fully paid. McGinnis, at Padgett's request,
outlined his concerns in a fax to Padgett the same day. He wrote that the ride
recently had "incurred some type of failure" and asked Department to
investigate the matter. Padgett assured him that Department would look into
it, McGinnis testified.
Padgett denied having a conversation on August 5 with McGinnis.
He testified he spoke with McGinnis on August 6 after receiving McGinnis's fax,
but denied McGinnis told him about the winch and cable system. Padgett did
not perceive the situation as an emergency and saw no reason to work overtime
to follow up on the matter. Cates, however, testified the fax appeared to be
more serious than other routine government and manufacturer notices faxed
to the Columbia office during 1993.
Jerry Butler, a chief inspector with Department, instructed local
inspector Mitchell Ward to go by the Beach Bungee site, but "not to make a
special trip." Ward was not aware of the July 13 memo or the August 5 fax.
Ward testified he drove by the site at about 6:30 p.m. August 6, 1993, on his
way to a bowling date. He was traveling about 20 to 30 mph and did not stop
at the site. Ward saw the cage sitting on the ground, but did not see the
crawlevator. He did not believe the ride was operating. He passed by the ride
again at about 11 p.m. on his way home, but did not stop. In fact, operators
used the winch and cable system to carry forty-seven jumpers August 6,
including twenty jumpers between 6: 10 and 8:30 p.m.
The next afternoon, on a Saturday trip to the mall, Ward pulled his
car to the far side of the six-lane highway and observed the ride for about ten
minutes. Ward saw the cage on the ground and again noticed the crawlevator
was not attached to the track of the arch. He also saw the stabilizing cables and
was "stunned" to see a lifting cable attached to the top of the cage. Ward
assumed, however, that workers were using the cables to move the cage or
crawlevator, which he assumed was broken, during repairs.
Ward did not walk across the highway to get a closer look or speak
to the owners. He did not try to telephone the owners later. Ward drove by the
site a second time August 7 without stopping. Ward still believed the ride was
not operating, and reported that to Department officials in Columbia.
Operators used the winch and cable system to carry only five people August 7
due to inclement weather and mechanical problems.
Ward drove by the site on his way to and from work Monday,
August 9, 1993, and on his way to work Tuesday morning. He did not stop or
even attempt to observe the site as he passed. The fatal accident occurred
Department officials Padgett, Butler, Cates, and Ward testified the
winch and cable system was dangerous, and acknowledged a failure could result
in multiple deaths. The system constituted a substantial modification of the
licensed crawlevator. Padgett, Butler, and Ward testified Department officials
would have taken immediate steps to shut it down if they had known about it.
STANDARD OF REVIEW
In ruling on motions for directed verdict or judgment
notwithstanding the verdict, the trial court is required to view the evidence and
the inferences that reasonably can be drawn therefrom in the light most
favorable to the party opposing the motions. The trial court must deny the
motions when the evidence yields more than one inference or its inference is in
doubt. This Court will reverse the trial court only when there is no evidence to
support the ruling below. Creech v. South Carolina Wildlife and Marine
Resources Dep't, 328 S.C. 24,491 S.E.2d 571 (1997). This Court will not disturb
a trial court's decision granting or denying a new trial unless that decision is
wholly unsupported by the evidence or the court's conclusions of law have been
controlled by an error of law. South Carolina Dep't of Highways and Pub.
Transp. v. E.S.I. Investments, 332 S.C. 490, 505 S.E.2d 593 (1998); Craven v.
Cunningham, 292 S.C. 441, 357 S.E.2d 23 (1987).
1. Did the trial judge err in ruling that Department
owes a special or private duty to riders of a
licensed amusement ride, such that respondents
have a private cause of action against
2. Is Department immune from suit under various
exceptions to the waiver of immunity contained
in the Tort Claims Act?
3. Did the trial judge err in rejecting Department's
argument that Michael Nash assumed the risk of
his injuries and in giving an erroneous jury
charge on assumption of the risk?
4. Did the trial judge err in refusing to reduce the
verdict in accordance with the Legislature's 199 7
re-enactment of monetary limits in suits brought
under the Tort Claims Act?
1. SPECIAL OR PRIVATE DUTY
Department argues the trial judge erred in rejecting its motions for
a directed verdict and judgment notwithstanding the verdict, in which it
asserted the Amusement Rides Safety Code gives rise only to a public duty. No
special or private duty exception to the public duty rule exists in this case;
therefore, Respondents had no private cause of action, Department contends.
In a negligence action, a plaintiff must show that the (1) defendant
owes a duty of care to the plaintiff, (2) defendant breached the duty by a
negligent act or omission, (3) defendant's breach was the actual and proximate
cause of the plaintiffs injury, and (4) plaintiff suffered an injury or damages.
Bishop v. South Carolina Dep't of Mental Health, 331 S.C. 79, 502 S.E.2d 78
(1998); Shipes v. Piggly Wiggly St. Andrews, Inc., 269 S.C. 479, 238 S.E.2d 167
(1977); W. Keeton, D. Dobbs, R. Keeton, and D. Owen, Prosser and Keeton on
the Law of Torts, 164-65 (1984). The court must determine, as a matter of law,
whether the law recognizes a particular duty. If there is no duty, then the
defendant in a negligence action is entitled to a directed verdict. Ellis v. Niles,
324 S.C. 223, 479 S.E.2d 47 (1996); Sharpe v. South Carolina Dep't of Mental
Health, 292 S.C. 11, 16, 354 S.E.2d 778, 781 (Ct. App. 1987) (Bell, J.,
In Jensen v. Anderson County Dep't of Social Services, 304 S.C.
195, 403 S.E.2d 615 (1991), the Court explained the public duty rule and the
six-factor test for determining whether a governmental entity owes a special or
private duty to an injured plaintiff.3
Other courts disagree about the continued validity of the public duty rule in
light of the demise of absolute sovereign immunity and the advent of acts such
as the South Carolina Tort Claims Act. The Act declares that governmental
entities "are liable for their torts in the same manner and to the same extent as
Generally, there is no common law duty to act. An
affirmative legal duty, however, may be created by
statute, contract relationship, status, property interest,
or some other special circumstance. Many statutes
impose a duty on public officials to perform certain
acts. Generally, however, such officials enjoy an
immunity from a private cause of action under the
public duty rule. This rule holds that public officials
are generally not liable to individuals for their
negligence in discharging public duties as the duty is
owed to the public at large rather than anyone
An exception to this general rule of non-liability exists
when a duty is owed to individuals rather than the
public only. Our Court of Appeals has developed a test
comprised of six elements to determine when such a
"special duty" exists:
(1) an essential purpose of the statute is to protect
against a particular kind of harm;
(2) the statute, either directly or indirectly, imposes on
a specific public officer a duty to guard against or not
cause that harm;
(3) the class of persons the statute intends to protect is
identifiable before the fact;
liability and damages, and exemptions from liability and damages, contained
herein." S.C. Code Ann. § 15-78-40 (Supp. 1998), See Leake v. Cain, 720 P.2d
152) 159 (Colo. 1986) (noting that while public duty doctrine may still be the
majority view, growing trend is to abandon it); Annot., 38 A.L.R.4th 1194 (1985)
(collecting numerous cases in which courts have applied or abandoned the
public duty doctrine). We do not address the continued validity of the public
duty rule because that issue is not before us.
(4) the plaintiff is a person within the protected class;
(5) the public officer knows or has reason to know the
likelihood of harm to members of the class if he fails to
do his duty; and
(6) the officer is given sufficient authority to act in the
circumstances or he undertakes to act in the exercise of
Jensen, 304 S.C. at 199-200,403 S.E.2d at 617 (citing Parker v. Brown, 195 S.C.
35, 10 S.E.2d 625 (1940)). The public duty rule is distinguishable from a
defense of immunity, which is an affirmative defense that must be pleaded and
can be waived. A defendant who pleads immunity conditionally admits the
plaintiff's case, but asserts immunity as a bar to liability. In contrast, the
public duty rule is a defense that denies an element of the plaintiffs cause of
action - the existence of a duty of care to the individual plaintiff. Wells v. City
of Lynchburg 331 S.C. 296, 307, 501 S.E.2d 746, 752 (Ct. App. 1998).
In Jensen, the Court determined that child abuse statutes imposed
a special duty on the local child protection agency and its social workers to
investigate and intervene in cases where child abuse has been reported. Thus,
a plaintiff may allege in a private cause of action that the agency failed to
properly investigate a report of child abuse. See also Bellamy v. Brown, 305
S.C. 291, 408 S.E.2d 219 (1991) (holding that dismissed official could not sue
government agency for breach of confidentiality under state Freedom of
Information Act because Act is intended to protect public from secret
government activity and did not create any special or private duty to
individuals); Wells v. City of Lynchburg, supra (holding plaintiff could not sue
city for failing to maintain fire hydrants because it was barred by a provision
of the Tort Claims Act and city owed duty only to public generally); Summers
v. Harrison Constr., 298 S.C. 451, 381 S.E.2d 493 (Ct. App.1989) (holding that
statute requiring county planning department to refuse to issue building
permits to unlicensed residential home builders created no special duty, such
that department could be held liable for damages on the ground it negligently
issued permit to builder); Rayfield v. South Carolina Dep't of Corrections, 297
S.C. 95, 374 S.E.2d 910 (Ct. App. 1988) (holding that statutes' assigning
responsibility for control of departments providing for keeping of records on
prisoners created duty owed by prison and parole officials to public generally,
not a special duty owed to victims murdered by recently paroled prisoner in
random act of violence).
We hold that the trial judge correctly ruled respondents have a
private cause of action because the six-factor test from Jensen is met in this
First, an essential purpose of the Amusement Rides Safety Code is
to protect against a particular kind of harm, i.e., harm caused by poorly
designed, constructed, or maintained amusement rides. "The purpose of this
chapter is to guard against personal injuries in the ... use of amusement
devices ... to persons employed at or attending ... amusement parks, and, in
the event of a personal injury, to ensure to the injured party the possibility of
financial recovery as against the owner.... It is the intent of this chapter that
amusement devices must be designed, constructed, assembled or disassembled,
maintained, and operated so as to prevent injuries." S.C. Code Ann. § 41-18-20
The dissent, focusing narrowly upon the language regarding
financial recovery against the owner and the necessity of liability insurance,
asserts the Legislature intended to prohibit recovery against Department. We
certainly agree that recovery against the owner is an important component of
the Act, but it is not the sole reason for its existence. As we explain further
below, a reading of the entire Act reveals the Legislature imposed numerous
specific and crucial duties upon Department in order to ensure the safety of
park visitors and workers.
Second, the Act directly imposes on Department a duty to guard
against or not cause harm to amusement park visitors and workers. "No
amusement device may be operated in the State without a permit issued" by an
appropriate Department official. S.C. Code Ann. § 41-18-50 (Supp. 1998).
Department must inspect an amusement device before issuing a permit. S.C.
Code Ann. § 41-18-70 (Supp. 1998). Department must re-inspect an
amusement device after the owner notifies it of a substantial modification to the
device. S.C. Code Ann. § 41-18-80(C) (Supp. 1998). Department's director and
his designees are "charged with the affirmative duty of administering and
enforcing" the Act. S.C. Code Ann. § 41-18-130 (Supp. 1998). Furthermore, the
Act, when read in its entirety, implicitly imposes upon Department an
affirmative duty to investigate promptly after receiving credible reports of
suspected hazards. See Adams v. Texfi Industries, 320 S.C. 213,464 S.E.2d 109
(1995) (in construing a statute, the reviewing court looks to its language as a
whole in light of its manifest purpose).
. Third, the class of persons the Act intends to protect was
identifiable before the fact of the injury. To meet this factor, the class must be
readily identifiable in that it is distinguishable from the general public. See
The Act's purpose is to prevent injuries to visitors and employees
at amusement parks and fairs. S.C. Code Ann. § 41-18-20. Those visitors and
employees usually would not constitute a readily identifiable class that is
distinguishable from the general public. In this case, however, Department had
received several credible reports indicating a particular amusement ride posed
a significant safety threat. Members of the larger class of visitors and
employees the Act is meant to protect - the riders and workers at a specific,
reportedly hazardous amusement ride - were readily identifiable before the fact
of the injury. Our reasoning is consistent with Jensen. supra, in which we
found that a member of the larger class of persons the child abuse statutes were
intended to protect - in that case, a single reported victim of abuse - was readily
identifiable before the fact of the injury. It is not always necessary, as
Department and the dissent contend, that members of the protected class
actually be known by name to the governmental entity before the fact of an
Fourth, the plaintiffs are within the protected class. Zachary was
a park visitor; Michael was employed by Beach Bungee, the owner of an
amusement device licensed by Department.
Fifth, Department knows or has reason to know the likelihood of
harm to members of the class if it fails to do its duty. Department officials
testified the winch and cable system was dangerous, and acknowledged a
failure could result in multiple deaths. They conceded the system constituted
a substantial modification of the licensed crawlevator. Department officials
further testified they would have taken immediate steps to shut it down if they
had known about it.
Sixth, Department has sufficient authority to act in the
circumstances. Department may revoke a permit after determining an
amusement device is, among other things, "being operated without the
inspections required" or "being operated with a mechanical, electrical,
structural, design, or other defect which presents an excessive risk of injury to
passengers, bystanders, operators, or attendants." S.C. Code Ann. § 41-18
60(D)(1) and (3) (Supp. 1998). Department officials may enter unannounced
and inspect amusement devices at reasonable times and in a reasonable
manner. They also have the right to question any owner, manager, or employee
and to inspect, investigate, photograph, and sample all pertinent areas, and to
examine and copy all pertinent documents and records. S.C. Code Ann. § 41-18
80(E) (Supp. 1998). Department may impose civil penalties when an owner
fails to comply with the act. S.C. Code Ann. § 41-18-150 (Supp. 1998).
Department's reliance upon Adkins v. Varn, 312 S.C. 188, 439
S.E.2d 822 (1993), is misplaced. In that case, a thirteen-year-old girl was
fatally injured after vicious dogs chased her into a public street where she was
struck and killed by an automobile. Several local residents had complained
about the dogs to county animal control personnel. We affirmed the trial court's
ruling that the county animal control ordinance did not create a special duty of
care towards individual members of the general public. We found no legislative
intent to create a special duty because the terms of the ordinance were general
and did not identify a particular class of victims or a particular kind of harm.
In contrast, the analysis of those factors in this case, as well as the remainder
of the six-factor test, reveals the legislative intent to create a special duty.
2. EXCEPTIONS TO WAIVER OF IMMUNITY
Respondents alleged that Department, after receiving reports of
substantial modifications, was grossly negligent in failing to inspect or
investigate the amusement ride and in failing to suspend or revoke the
crawlevator license. Department contends the trial judge erred in rejecting its
directed verdict and post-trial motions in which it asserted immunity from suit
under several exceptions to the waiver of sovereign immunity contained in S.C.
Code Ann. § 15-78-60 (Supp. 1998). We disagree.
The South Carolina Tort Claims Act, which provides the exclusive
remedy in tort against Department, is a limited waiver of governmental
immunity. Moore v. Florence School Dist. No. 1, 314 S.C. 335, 444 S.E.2d 498
(1994); S.C. Code Ann. § 15-78-20(a) (Supp.1998). The Act provides that,
subject to limitation, a governmental entity is "liable for [its] torts in the same
manner and to the same extent as a private individual under like
circumstances." Id.; S.C. Code Ann. § 15-78-40 (Supp-1993).
The burden of establishing a limitation upon liability or an
exception to the waiver of immunity under the Tort Claims Act is upon the
governmental entity asserting it as an affirmative defense. Strange v. South
Carolina Dep't of Highways and Pub. Transp., 314 S.C. 427, 445 S.E.2d 439
(1994). Provisions establishing limitations upon and exemptions from liability
of a governmental entity must be liberally construed in favor of limiting
liability. S.C. Code Ann. § 15-78-20(f) (Supp. 1998); Baker v. Sanders, 301 S.C.
170, 391 S.E.2d 229 (1990).
A. THE LICENSING POWERS EXCEPTION
Department contends it is immune from suit under Section 15-78
60(12). Under that section, a governmental entity is not liable for a loss
resulting from "licensing powers or functions, including, but not limited to, the
issuance, denial, suspension, renewal, or revocation of or failure to issue, deny,
suspend, renew, or revoke any permit, license, certificate, approval,
registration, order, or similar authority except when the power or function is
exercised in a grossly negligent manner." The trial judge instructed the jury on
Department asserts the exception applies only to a licensee or
potential licensee, not to a third party allegedly injured by the government's
licensing decision. Nothing in the statutory language of the provision limits it
as Department suggests. A potential licensee, licensee, or an injured third
party may seek relief under the exception. See Parsons v. Uniroyal-Goodrich
Tire Corp., 313 S.C. 394, 438 S.E.2d 238 (1993) (in construing statute, words
must be given their plain and ordinary meaning without resorting to subtle or
forced construction to limit or expand statute's operation).
Department also argues it could not be grossly negligent because
it did not have any authority to license a bungee jumping operation in 1993.
See S.C. Code Ann. §§ 52-19-10 to -380 (Supp. 1998) (statutes regulating bungee
jumping effective in July 1994). We conclude the trial judge correctly reasoned
that respondents' action pertained to modifications of the crawlevator used to
carry bungee jumpers and spectators - which Department had licensed as an
amusement device - not to the actual jumps that were made.
Department further argues there was no license for Department to
revoke because the licensed crawlevator was not in use when the accident
occurred. Accepting this argument would mean Department could avoid its
duty simply by claiming it was powerless in the face of an unauthorized and
unlicensed modification. That would subvert the clear purpose of the licensing
exception, which is to hold the governmental entity liable when it is grossly
negligent in failing to investigate whether it should suspend or revoke a license
after learning of potentially dangerous modifications to the subject of the
license. See Adams v. Texfi Industries, supra (in construing a statute, the
reviewing court looks to its language as a whole in light of its manifest purpose);
Resolution Trust Corp. v. Eagle Lake and Golf Condominiums, 310 S.C. 4732
427 S.E.2d 646 (1993) (purpose of the statute and public policy are aids in
construction of a statute).
Finally, Department argues that respondents Steinke are barred
by the doctrines of collateral estoppel and judicial estoppel from asserting the
winch and cable system was licensed by Department because they asserted it
was not licensed in a federal lawsuit against Beach Bungee's owners. See
Steinke v. Beach Bungee, Inc., 105 F.3d 192 (4th Cir. 1997) (discussing verdict
form in which the jury determined by special interrogatory that the winch and
cable system was operated without a license from Department).
The Steinke s' position in the two cases is consistent. In the federal
lawsuit, the Steinkes asserted and the jury found that the winch and cable
system was not licensed. In this case, the Steinkes asserted the crawlevator
was licensed, and Department was grossly negligent in failing to suspend or
revoke that license after learning the crawlevator may have been replaced by
the unlicensed winch and cable system.
We have defined gross negligence as "the failure to exercise slight
care. it We also have defined it as "the intentional, conscious failure to do
something which it is incumbent upon one to do or the doing of a thing
intentionally that one ought not to do." Gross negligence "is a relative term,
and means the absence of care that is necessary under the circumstances."
Hollins v. Richland County School Dist. One, 310 S.C. 486,490,427 S.E.2d 654,
656 (1993) (citations omitted). Under any of those definitions, the trial judge
properly denied Department's directed verdict and post-trial motions when the
facts are viewed in the light most favorable to respondents. The record shows
Department received three credible reports of a suspected problem or hazard
at a licensed amusement device, yet Department gave the matter no more than
a cursory glance.
B. THE INSPECTION POWERS EXCEPTION
Department asserts that, regardless of the licensing powers
exception, it is immune pursuant to Section 15-78-60(13). Under that section,
a governmental entity is not liable for a loss resulting from "regulatory
inspection powers or functions, including failure to make an inspection, or
making an inadequate or negligent inspection, of any property to determine
whether the property complies or violates any law, regulation, code, or
ordinance or contains a hazard to health and safety." The trial judge instructed
the jury on this exception, which does not contain a gross negligence standard.
This Court and the Court of Appeals previously have recognized
that the correct approach, when a governmental entity asserts various
exceptions to the waiver of immunity, is to read exceptions that do not contain
the gross negligence . standard in light of exceptions that do contain the
standard. Duncan v. Hampton County School Dist. #2, Op. No. 2995 (S.C. Ct.
App. filed May 10, 1999) (Shearouse Adv. Sh. No. 17 at 61) (reading
discretionary immunity exception in light of exception to immunity in which
governmental entity exercises its duty in a grossly negligent manner, such that
discretionary immunity will not protect the government if it exercises that
discretion in a grossly negligent manner); Etheredge v. Richland School Dist.
1, 330 S.C. 447, 463; 499 S.E.2d 238) 246 (Ct. App. 1998) (when an action is
brought alleging gross negligence by a governmental entity pursuant to an
exception contained in Section 15-78-60, all other applicable exceptions must
be read in light of the exception containing the gross negligence standard), cert.
granted on other grounds, April 8, 1999. The principles expressed in Duncan
and Etheredge are drawn from Jackson v. South Carolina Dep't of Corrections,
301 S.C. 125, 390 S.E.2d 467 (Ct. App. 1989), aff d, 302 S.C. 519, 397 S.E.2d 377
While provisions establishing limitations upon and exemptions from
liability of a governmental entity must be liberally construed to limit liability,
we also must presume in construing a statute that the Legislature did not
intend to perform a futile thing. See Gaffney v. Mallory, 186 S.C. 337, 195 S.E.
840 (1938). We are constrained to avoid a construction that would read a
provision out of a statute, and must reconcile conflicts if possible. Ballard v.
Ballard, 314 S.C. 40, 443 S.E.2d 802 (1994).
We hold the inspection powers exception must be read in
conjunction with the key exception at issue in this case, Section 15-78-60(12),
the licensing powers exception. Department must inspect an amusement device
before deciding whether to issue, suspend, or revoke a license. S.C. Code Ann.
§§ 41-18-70 and 41-18-80. Department also has an implicit duty to investigate
potentially hazardous substantial modifications when it learns of them. It
would make no sense to say Department may be found grossly negligent in a
licensing decision, yet allow Department to escape liability because the
inspection powers exception does not contain a gross negligence standard. The
logical way to read these closely related provisions when both are at issue is
that a governmental entity may be liable if it is grossly negligent in licensing
or inspecting a particular device or activity.
The dissent asserts that Duncan, Etheredge, and Jackson simply
stand for the proposition that a specific exception applies over a more general
one. We agree the three cases generally illustrate that proposition, although
none contains any language indicating that was the underlying rationale. The
circuit court and the parties certainly should focus their analysis and jury
instructions upon the most pertinent and specific exceptions that apply in a
given case. But to unduly emphasize the distinction between "specific" and
"general" exceptions ultimately could reduce defenses available to a
governmental entity if the court opted to charge only the most specific
exceptions. Accordingly, we conclude the better practice is to allow the
government to assert all relevant exceptions, and apply the gross negligence
standard to all when it is contained in one applicable exception. Our holding
is faithful to the legislative intent to limit liability and allow ample defenses,
while not allowing a governmental entity to eviscerate the impact of one
exception by asserting another.4
C. OTHER EXCEPTIONS
Department asserts it is immune pursuant to Section 15-78-60(5)
Etheredge and Jackson, and find it proper to discuss and clarify a significant
point of law previously addressed three times by the Court of Appeals.
(governmental entity is not liable for performing or failing to perform
discretionary acts); Section 15-78-60(4) (governmental entity is not liable for
adoption or enforcement, or failing to adopt or enforce, a law or regulation); and
Section 15-78-60(20) (governmental entity is not liable for loss resulting from
act or omission of person other than an employee, including but not limited to
the criminal actions of third persons). None of these exceptions contains a gross
negligence standard. The trial judge instructed the jury on discretionary
immunity, but ruled the other exceptions did not apply in this case.
To prevail under the discretionary immunity provision, the
governmental entity must show that when faced with alternatives, it actually
weighed competing considerations and made a conscious decision to act or not
to act, and that it used accepted professional standards appropriate to resolve
the issue before it. Strange v. South Carolina Dep't of Highways & Pub.
Transp., 314 S.C. 427, 445 S.E.2d 439 (1994); Niver v. South Carolina Dep't of
Highways & Pub. Transp., 302 S.C. 461, 395 S.E.2d 728 (Ct. App.1990). The
record contains scant evidence Department officials exercised their discretion.
Regardless, the jury considered the provision and rejected it.
An appellate court will not reverse the trial court's decision to strike
an insufficient or irrelevant allegation or defense unless the trial court abuses
its discretion. Mayes v. Paxton, 313 S.C. 109, 115, 437 S.E.2d 66, 70 (1993);
Williams v. South Carolina Nat'l Bank, 284 S.C. 346, 326 S.E.2d 187 (Ct. App.
1985). An abuse of discretion arises where the trial court was controlled by an
error of law or where its order is based on factual conclusions that are without
evidentiary support. Tri-County Ice and Fuel Co. v. Palmetto Ice Co., 303 S.C.
237, 242, 399 S.E.2d 779, 782 (1990). We conclude the trial judge did not abuse
his discretion because the enforcement of law and third party exceptions were
not directly at issue in this case.
Furthermore, the same reasoning explained above applies to all
three exceptions. It would make no sense to say Department may be found
grossly negligent in a licensing decision, yet allow Department to escape
liability under one of these exceptions. See Duncan v. Hampton County School
Dist. #2, supra; Etheredge v. Richland School Di~t. 1, supra; Jackson v. South
Carolina Dep't of Corrections, supra.
In sum, we recognize the trial court often faces Tort Claims Act
cases in which at least one of the asserted exceptions contains the gross
negligence standard while other asserted exceptions do not. We hold that when
an exception containing the gross negligence standard applies, that same
standard will be read into any other applicable exception. Otherwise, portions
of the Act would be a nullity, which the Legislature could not have intended.
In addition, we will overturn the trial court's refusal to charge irrelevant
exceptions only for an abuse of discretion.
3. ASSUMPTION OF THE RISK INSTRUCTION
Department argues the trial judge erred in rejecting its motion for
a judgment as a matter of law in the case of Michael Nash, the bungee jump
master, after the jury determined Nash assumed the risk of his injuries.
Department also asserts the judge erred in modifying the assumption of the risk
charge in light of a recent Court of Appeals opinion that was not law when
Nash's cause of action accrued.
The trial judge instructed the jury on the accepted definition of the
affirmative defense of assumption of the risk, i.e., that a plaintiff s conduct may
constitute implied assumption of the risk where it is shown that he understood
and appreciated a known danger created by the defendant, and then freely and
voluntarily exposed himself to it. Mayes v. Paxton, 313 S.C. at 116,437 S.E.2d
at 70. The judge also told the jury, over Department's objection, that "[e]ven if
you find that [Nash] assumed the risk in this case, [Nash] may still recover as
long as his assumption of the risk was not greater than the gross negligence of
the defendant." The jury had to balance any assumption of the risk by Nash
with any gross negligence by Department.
The judge drew the balancing instruction from Davenport v. Cotton
Hope Plantation Horizontal Property Regime, 325 S.C. 507, 482 S.E.2d 569 (Ct.
App. 1997) (deciding for first time in South Carolina that implied assumption
of risk is one facet of comparative negligence, not a complete defense to an
injured plaintiffs claim), aff'd as modified, 333 S.C. 71, 508 S.E.2d 565 (1998).5
The Court of Appeals decided Davenport I two months before respondents' trial.
The jury awarded Nash's statutory beneficiaries $1 million in actual
decision as Davenport II.
damages. The judge reduced the award to $900,000 after the jury, in a special
verdict form, determined Nash had assumed the risk of his injuries and was ten
percent at fault in the accident.
In South Carolina, the "general rule regarding retroactive
application of judicial decisions is that decisions creating new substantive rights
have prospective effect only, whereas decisions creating new remedies to
vindicate existing rights are applied retrospectively. Prospective application is
required when liability is created where formerly none existed." Davenport II,
333 S.C. at 87, 508 S.E.2d 574. In applying our general rule, this Court and the
391 S.E.2d 560 (1990) (retroactively applying prior decision that created no new
substantive right, but merely provided a method for determining whether
insurance policy should be reformed); Toth v. Square D Co., 298 S.C. 6, 377
S.E.2d 584 (1989) (retroactively applying prior decision that allowed evidence
of employee handbook provisions in an action against employer because the
decision merely created a new remedy to vindicate the existing right to bring
a breach of contract action).
7 Russo v. Sutton, 310 S.C. 200, 422 S.E.2d 750 (1992) (prospectively
abolishing the "heart balm" tort of alienation of affections); Boan v. Watson, 281
S.C. 516, 316 S.E.2d 401 (1984) (prospectively abolishing the dower rights of
widows whose husbands died after the filing of the opinion); Hyder v. Jones, 271
S.C. 85, 245 S.E.2d 123 (1978) (prospectively applying statute abrogating
parental immunity); Douglass v. Florence General Hospital, 273 S.C. 716, 259
S.E.2d 117 (1979) (prospectively applying judicial and statutory modification of
charitable immunity for hospitals); McCaskey v. Shaw, 295 S.C. 372, 368 S.E.2d
672 (Ct. App.1988) (prospectively applying Supreme Court case that first
recognized tort of negligent infliction of emotional distress).
8 A court uses selective or modified prospectivity when it applies a rule
to the case at bar and to all future cases. See McCall v. Batson, 285 S.C. 243)
329 S.E.2d 741 (1985) (prospectively abolishing sovereign immunity, except the
immunity did not apply in this case or in any case filed before July 1, 1986, in
which the government defendant had liability insurance coverage); Ludwick v.
This Minute of Carolina, 287 S.C. 219, 337 S.E.2d 213 (1985) (first recognizing
In Davenport II, we employed the third approach by concluding that
the revised view of assumption of the risk applied "to the instant case and to all
causes of action that arise or accrue after the date of this opinion. Thus, except
for this case, if a cause of action arose or accrued prior to our decision today, it
will be governed by the common law form of assumption of risk, if applicable,
as it existed under South Carolina case law before this opinion." Davenport II,
333 S.C. at 87, 508 S.E.2d at 574.
We adhere to the prospectivity rule announced in that case.
Accordingly, we hold that the trial judge's instructions drawn from Davenport
I improperly allowed the jury to consider Nash's assumption of the risk as part
of the comparative negligence analysis. Assumption of the risk constituted a
complete bar to recovery when Nash's cause of action accrued in 1993, and the
trial judge erred in applying the new principles retroactively. We reverse the
judgment for Nash's statutory beneficiaries and grant them a new trial.
Although the jury determined Nash had assumed ten percent of the risk, the
improper instructions undoubtedly affected the jury's deliberations and its
answers to questions posed in the special verdict form. Both parties are entitled
to a new trial with proper instructions on the law.9
4. RE-ENACTMENT OF MONETARY LIMITS
Department contends the trial judge erred in denying its motion for
a new trial nisi remittitur, in which it asked the judge to reduce the verdicts for
applying decision in this case and prospectively); Brown v. Anderson County
Hospital Ass'n, 268 S.C. 479, 234 S.E.2d 873 (1977) (modifying doctrine of
charitable immunity, such that charitable hospitals are liable for heedless and
reckless acts, and applying decision in this case and prospectively); McCormick
v. England, 328 S.C. 627, 494 S.E.2d 431 (Ct. App. 1997) (first recognizing the
common law tort of breach of a physician's duty of confidentiality, and applying
decision in this case and prospectively).
9 Nash's cause of action accrued 31/2years before the Court of Appeals
decided Davenport I. We are not confronted with a case in which the cause of
action accrued after Davenport I and before Davenport II, which would present
a different question.
Steinke and Nash to $250,000 each under the Tort Claims Act. Department
relies on a provision of the 1997 budget act. The provision re-enacted (or more
accurately, restated) the then-existing limits on liability found in S.C. Code
Ann. § 15-78-120 (Supp. 1998), and clarified "any ambiguity in the General
Assembly's intent that there remain reasonable limits upon recovery against
the government for tort actions." Act No. 155, 1997 Acts 1567. The provision
also increased the statutory limits. The higher limits took effect June 1, 1998,
and are not at issue in this case.
The provision states that, " [e]xcept where otherwise provided, this
section takes effect [June 14, 1997] and applies to claims or actions pending on
that date or thereafter filed, except where final judgment has been entered
before that date." Id. at 1571-72, 1611.
In focusing solely on whether the final judgment occurred before
June 14, 1997, both parties have overlooked a crucial threshold issue: May the
Legislature by a retroactive amendment overrule this Court's prior
interpretation of a statute? We conclude the Legislature may not.
In 1994, the Court held the Legislature impliedly had repealed two
subsections of the Tort Claims Act, which limit damages and call for
apportioned liability, by enacting inconsistent provisions in the Uniform
Contribution Among Tort-Feasors Act (Uniform Contribution Act), which call
for unlimited, pro rata liability. Southeastern Freight Lines v. City of
Hartsville, 313 S.C. 466, 443 S.E.2d 395 (1994). The Legislature quickly
responded by providing that the Uniform Contribution Act did not apply to
governmental entities and by reinstating the statutory limits, "except for causes
of action that have been filed in a court of competent jurisdiction before July 1,
1994." Act No. 497, 1994 Acts 5793 (effective July 1, 1994). Thus, any case filed
before July 1, 1994, is not subject to the $250,000 cap for individual claims
contained in the Tort Claims Act.10 Respondents filed their original complaint
473 S.E.2d 799 (1996) (holding that statutory limit in Tort Claims Act does not
apply to cases filed before July 1, 1994, even when there are no joint tortfeasors
with the governmental entity); Knoke v. South Carolina Dep't of Parks,
Recreation, and Tourism, 324 S.C. 136, 478 S.E.2d 256 (1996) (holding that
Southeastern Freight Lines and McClain apply to the $500,000 per occurrence
June 29, 1994 - two days before the reinstatement of the limits.
This issue implicates the doctrine of separation of powers. See S.C.
Const. art. 1, § 8. The Court has stated that
'construction of a statute is a judicial function and
responsibility. Subject to constitutional limitations,
the legislature has plenary power to amend a statute.
However, a judicial [interpretation] of a statute is
determinative of its meaning and effect, and any
subsequent legislative amendment to the contrary will
only be effective from the date of its enactment and
cannot be applied retroactively.
Lindsay v. Nat'l Old Line Ins. Co., 262 S.C. 6211 628-29) 207 S.E.2d 75, 78
(1974) (citation omitted).
The Court held that the Legislature's attempt to declare by a
retroactive amendment that insurance companies were entitled to certain
investment credits - after the Court had interpreted statutes to say the
companies were not entitled to the credits - violated the separation of the
legislative, executive, and judicial powers of government. Quoting the trial
court with approval, the Court recognized the Legislature essentially was
telling the Court, "We reverse." The Legislature, however, lacks such authority.
Lindsay, 262 S.C. at 628, 207 S.E.2d at 77-78.11
Transp., 326 S.C. 516, 485 S.E.2d 119 (Ct. App. 1997) (determining the
statutory limit was inapplicable in case filed before July 1, 1994), aff'd as
modified, 333 S.C. 464) 511 S.E.2d 355 (1999).
11 Accord McCutcheon v. Smith, 35 S.E.2d 144, 148 (Ga. 1945) (rejecting
as a violation of separation of powers an attempt by legislature to construe
legislatively an earlier act in a manner that conflicted with the judicially
determined meaning); Roth v. Yackley, 396 N.E.2d 520, 522 (Ill. 1979)
(legislature cannot overrule a decision of the supreme court by declaring that
an amendment applies retroactively to cases decided before the amendment's
effective date); Marine Power & Equipment Co. v. Washington State Human
We hold that this case, filed before the Legislature reinstated the
statutory caps, is controlled by the principles outlined in Lindsay, supra. The
Legislature may not retroactively overrule this Court's interpretation of the
statutes in Southeastern Freight Lines. The Legislature may, of course, do
what it did in 1994, which was to resolve the statutory conflict and reinstate the
statutory caps in future cases. We may resolve the issue on this ground even
though the parties and trial judge did not. See Weir v. Citicorp Nat'l Services,
Inc., 312 S.C. 511, 435 S.E.2d 864 (1993) ("[a] correct decision of the trial court
on the wrong ground will be affirmed on appeal'); Rule 220(c), SCACR
(appellate court may affirm judgment upon any ground appearing in the
record). It is unnecessary to address the parties' arguments about the 1997
provision because Lindsay is dispositive.
We affirm the trial judge's ruling that respondents have a private
cause of action under the Amusement Rides Safety Code. We affirm the judge's
rulings on the exceptions to the waiver of immunity under the Tort Claims Act,
and hold that when an applicable exception contains the gross negligence
standard, then any other relevant exception must be read in light of that
standard. We reverse Nash's judgment and grant the statutory beneficiaries
a new trial because the judge erroneously instructed the jury on the revised
view of assumption of the risk. Finally, we hold that neither respondent's
recovery is limited by the Tort Claims Act because this case was filed before the
Legislature reinstated the statutory caps. We find Department's remaining
arguments to be without merit.
AFFIRMED IN PART; REVERSED IN PART.
TOAL, A.C.J., and BURNETT, JJ., concur. MOORE, A.J.,
dissenting in a separate opinion. Acting Associate Justice
George T. Gregory, Jr., not participating.
under the guise of clarification, overrule by legislative enactment a prior
authoritative supreme court opinion construing a statute"); 16 C.J.S.
Constitutional Law §§ 115-116 (1984) ("legislature may enact a statute to
modify, for the future, the law as declared by decisions of the courts").
MOORE, A.J.: Because I disagree with the majority's holding that
respondents have a private cause of action under the South Carolina
Amusement Rides Safety Code, I respectfully dissent.
Under the public duty rule, public officials are generally not liable to
individuals for negligence in the discharge of their public duties unless there
exists a "special duty" to the plaintiff as an individual rather than simply to
the public at large. Jensen v. Anderson County Dep't of Soc. Serv., 304 S.C.
195, 403 S.E.2d 615 (1991). Where a duty is owed to the public only, a public
official is not liable to an individual who may have been incidentally injured
by the failure to perform it. Id.; Parker v. Brown, 195 S.C. 35, 10 S.E.2d 625
As discussed in the majority opinion, we apply a six-factor test to
determine whether a "special duty" exists. One of these factors is that "the
class of persons the statute intends to protect is identifiable before the fact."
Jensen, 403 S.E.2d at 617 (emphasis added). There must be a "special
relationship" that exists between the public official and the plaintiff. Id.
The facts in Jensen are especially instructive since it is the only case
finding a special duty. In that case, we found a special relationship existed
between the Department of Social Services and a child who was the reported
victim of child abuse. After the report, no investigation was made and the
child died from subsequent abuse. We found a special relationship was
established when the child abuse was initially reported and this special
relationship therefore existed before the facts giving rise to the cause of
action in that case, i.e. the child's death from the subsequent abuse.
In this case, there is no evidence of any special relationship between
Department and respondents to distinguish respondents from members of
the general public. The South Carolina Amusement Safety Code applies to
protect all members of the general public. Respondents were not identifiable
members of a particular class before the facts giving rise to this cause of
Further, as stated in Jensen, the six-factor, test for a special duty is a
means of determining legislative intent. 403 S.E.2d at 618. Accordingly, we
cannot overlook the legislative intent expressed in the statute itself. The
South Carolina Amusement Rides Safety Code expressly provides its
legislative intent is
to guard against personal injuries in the assembly, disassembly,
and use of amusement devices at carnivals, fairs, and
amusement parks to persons employed at or attending carnivals,
fairs, and amusement parks and, in the event of a personal
injury, to ensure to the injured party the possibility of financial
recovery as against the owner of the carnival, fair, or amusement
park where the injury occurred.
S.C. Code Ann. § 41-18-20 (Supp. 1998) (emphasis added). In furtherance of
this purpose, S.C. Code Ann. § 41-18-90 (Supp. 1998) requires the owner or
lessee of an amusement device to have liability insurance. These provisions
evidence no intent to make Department itself an insurer of the safety of
In conclusion, I would reverse the denial of Department's motion for
judgment notwithstanding the verdict on the ground respondents have no
private cause of action under the South Carolina Amusement Rides Safety
Further, even if I were to concur in the result reached by the majority
in this case, I cannot agree with its analysis of the inspection powers
exception discussed in Part 2. The majority concludes under the Tort Claims
Act that where two exceptions to liability may apply, if one allows for
liability in cases of gross negligence, that same standard of liability must be
read into any other applicable exception as well. I completely disagree with
First, I note there is no need to reach this sweeping conclusion here
since the trial judge properly instructed the language of § 15-78-60(13),
which contains the inspection powers exception, and did not add a gross
negligence standard to it as Department complains.
Moreover, there is no reason to conclude that all applicable exceptions
to liability must be read together. The majority overstates the significance of
the Court of Appeals' decisions in Duncan, Etheredge, and Jackson. A
careful reading indicates these cases simply illustrate our recently stated
rule that a specific exception applies over a more general one. Wooten v.
South Carolina Dept. of Transportation, 333 S.C. 464, 511 S.E.2d 355 (1999).
In a situation such as this, however, where more than one equally specific
exception may apply, it is for the jury to determine which exception, if any,
applies under the facts of the case.1d
For instance, assuming a duty in this case, the jury could find no
liability from Department's failure to inspect under the inspection exception
as properly charged by the trial judge. On the other hand, under the
licensing exception, the jury could find Department liable because it was
grossly negligent in failing to revoke the permit for the crawlevator when it
had reason to believe the device was unsafe.2d
In light of the majority's concession that we must liberally construe the
Tort Claims Act in favor of limiting government liability, it is inconsistent to
conclude that a lesser degree of immunity must prevail when more than one
exception to liability may apply. To the contrary, under this rule of
construction, one would logically conclude such a merging of exceptions
would incorporate the greater immunity, not the lesser. In my view, such a
merging is unnecessary. There is no inconsistency in allowing the jury to
consider the specific exceptions individually.
(discretionary acts), 15-78-60(4) (adoption or enforcement of law or
regulation), and 15-78-60(20) (act or omission of person other than employee)
would fall under the general rule that a specific exception applies over a
more general one.
2d The Amusement Rides Safety Code allows for revocation of a permit if
Department "determine[s] that an amusement device is ... being I operated
with a mechanical, electrical, structural design, or other defect which
presents an excessive risk of serious injury to passengers, bystanders,
operators, or attendants. . . ." S.C. Code Ann. § 41-18-60(D)(3) (Supp. 1998).
This permit revocation power does not hinge exclusively on making an