Hazard v. South Carolina State Highway Dept.

• Decision Date: 27 May 1975
• Docket Number: No. 20018,20018
• Court: South Carolina Supreme Court
• Parties: Richard D. HAZARD, by his committee, Lois D. Hazard, Appellant, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT and the County of Charleston, Respondents.

Page 438

215 S.E.2d 438

264 S.C. 386

Richard D. HAZARD, by his committee, Lois D. Hazard, Appellant, v. SOUTH CAROLINA STATE HIGHWAY DEPARTMENT and the County of

Charleston, Respondents.

No. 20018.

Supreme Court of South Carolina.

May 27, 1975.

Young, Clement & Rivers, Charleston, for appellant.

Sinkler, Gibbs, Simons & Guerard, Charleston, Atty. Gen. Daniel R. McLeod and Staff Atty. John D. Choate, Columbia, for respondent S.C. State Highway Dept.

Ben Scott Whaley, Charleston, for respondent The County of Charleston.

LEWIS, Justice:

The question to be decided in this appeal is whether the provisions of Sections 33--230 and 33--923, requiring a claim for damages against the South Carolina State Highway Department or a county in this State to be filed within one hundred eighty (180) days from the date of injury or damage, constitute a denial of due process or equal protection of the law in violation of the State and Federal Constitutions.

The issues here arise out of a two-car collision, on April 3, 1973, on an exit ramp from Interstate Highway No. 26 in Charleston County, in which appellant suffered permanent injuries. He remained in a coma for approximately two (2) months and, due to brain damage suffered in the accident, a committee was appointed for him on June 28, 1973.

Shortly after her appointment, and well in advance of the period for filing a claim against the Highway Department or the County of Charleston, the committee pursued to settlement a claim against the other vehicle involved in the accident.

Appellant also sought to assert a right of recovery for his injury and damage because of alleged defects in the highway where the collision occurred; and in February 1974, approximately eight (8) months after her appointment and eleven (11) months after the accident, the committee brought this action against respondents South Carolina State Highway Department and Charleston County, alleging improper construction and design of the highway and improper signs as causes of appellant's injuries and damage.

Both respondents demurred to the complaint on the grounds that the complaint failed to state a cause of action because there was no allegation that a written claim had been filed with either of the respondent governmental agencies within one hundred eighty (180) days from the date of injury, as required by Sections 33--230 and 33--923. Appellant, conceding that a claim had not been filed as required by these code sections, asserted that the claim provisions of the statutes were unconstitutional and, therefore, the failure to file the claim was not a bar to the present action. This contention was rejected by the lower court and an order entered sustaining the demurrers, from which plaintiff has prosecuted this appeal.

The sovereign immunity from liability and suit has been waived under the provisions of Section 33--229 et seq. of the 1962 Code of Laws, as amended, as to the South Carolina State Highway Department, and under Code Section 33--921 et seq., as amended, as to counties, so as to permit suits for the recovery of injury or damage caused by the delicts of the Highway or County in connection with the construction or repair of highways and the operation of State or County vehicles while engaged in such construction or repair.

Although the waiver of sovereign immunity of the Highway Department and County is effected under different statutes, virtually the same conditions or limitations are placed on the right to sue either, among them being the requirements, here involved and set forth in Code Sections 33--230 and 33--923, supra, that, as a prerequisite to liability and suit, a verified claim setting forth the date and place the injury or damage occurred and the amount claimed, must be filed with the governmental agency involved, within one hundred eighty (180) days from the date of injury; and suit, if any, must be filed within twelve (12) months from the date of injury. There is a further provision which eliminates the necessity for filing a verified claim, if suit is commenced within six (6) months after the injury or damage.

Appellant's due process and equal protection arguments are based primarily on the contentions that (1) the notice provisions are not related to any valid public purpose and are, therefore, arbitrary and capricious; (2) the Legislature intended by the statutes in question to give persons injured from negligent governmental activities equal rights with victims of private torts and thereby created a vested right in immediate access to the courts; and (3) the notice provisions, in effect, arbitrarily divide all tortfeasors into the following classes of wrongdoers: (a) private tortfeasors to whom no notice is required and (b) governmental tortfeasors to whom notice is...