Niver v. S.C. Dept. of Highways and Public Transp., 1518

Decision Date08 May 1990
Docket NumberNo. 1518,1518
Citation302 S.C. 461,395 S.E.2d 728
PartiesTimothy P. NIVER, Appellant, v. S.C. DEPARTMENT OF HIGHWAYS AND PUBLIC TRANSPORTATION, and Joseph Henry Gary, Defendants, of whom S.C. Department of Highways and Public Transportation is Respondent. . Heard
CourtSouth Carolina Court of Appeals

Ken Suggs of Suggs & Kelly, Columbia, for appellant.

Mary Gordon Baker of Nexsen, Pruet, Jacobs & Pollard, Columbia, for respondent.

GOOLSBY, Judge:

Timothy P. Niver brought this personal injury action against the South Carolina Department of Highways and Public Transportation and Joseph Henry Gary. The circuit court granted the Department's motion for summary judgment. Niver appeals. The questions on appeal concern discretionary immunity under the South Carolina Tort Claims Act and contributory negligence. We reverse and remand.

On November 4, 1986, Niver suffered personal injuries when his motorcycle collided with a pickup truck driven by Gary at the intersection of Belton Road and Highway 244 in Lexington County. The collision occurred when Gary turned left onto Belton Road as Niver attempted to pass Gary's truck on the left. Both Niver and Gary had been traveling south on Highway 244.

On the day of the accident, no signs or markings of any kind indicated the two approaches on Highway 244 to the intersection of Belton Road and Highway 244 were no-passing zones for distances of 100 feet from the intersection. See S.C.CODE ANN. § 56-5-1880(a)(2) (1976 & 1989 Supp.) ("No vehicle shall at any time be driven to the left side of the roadway ... [w]hen approaching within one hundred feet of ... any intersection...."). Also, no signs on Highway 244 alerted travelers on Highway 244 of the highway's intersection with Belton Road.

Highway 244, however, had recently been resurfaced. Before its resurfacing, a yellow line on the highway indicated a no-passing zone for travelers heading north toward the intersection. A marked no-passing zone for southbound travelers approaching the intersection has never existed on Highway 244.

Niver's complaint against the Department centers on the Department's failure at the time of the accident to have either "yellow lines" or "road signs" on Highway 244 indicating no-passing zones at the approaches to the intersection in question.

The Department moved for summary judgment, asserting, among other things, the affirmative defenses of discretionary immunity and contributory negligence.

The circuit court held that Section 15-78-60(5) and (15) of the South Carolina Tort Claims Act immunizes the Department from liability for any loss resulting from a decision by the Department not to place either striping or a sign upon Highway 244 to indicate a no-passing zone for southbound travelers because the decision involved a discretionary act and the Department "is not liable for a loss resulting from the exercise of discretion...." 1

I.

Subject to the limitations contained in the South Carolina Tort Claims Act, a governmental entity, such as the Department, is liable for its torts "in the same manner and to the same extent as a private individual...." S.C.CODE ANN. § 15-78-40 (1976 & 1989 Supp.). One such limitation is that a governmental entity is not liable for a loss resulting from "the exercise of discretion ... by the governmental entity...." Id. § 15-78-60(5). Another limitation is that a governmental entity has no "liability arising from a failure ... to initially place any ... signs, signals, [or] warning devices ... when the failure is the result of a discretionary act of the governmental entity." Id. § 15-78-60(15). The burden of establishing a limitation upon liability or an exception to the waiver of immunity is upon the governmental entity asserting it as an affirmative defense. 57 Am.Jur.2d Municipal, County, School, and State Tort Liability § 676 at 616-17 (1988).

Thus, whether the Department is liable in this instance depends on whether its failure to place either striping or signs on Highway 244 to indicate a no-passing zone for southbound travelers on the highway within 100 feet of the intersection of Belton Road and Highway 244 resulted in fact from a discretionary decision. More precisely, the Department's immunity is contingent on proof that the Department, faced with alternatives, actually weighed competing considerations and made a conscious choice not to place either striping or signs on the highway at the location in question. See Burgdorf v. Funder, 246 Cal.App.2d 443, 54 Cal.Rptr. 805 (1966) (under California law, a "discretionary act" within the meaning of the doctrine of governmental immunity for liability for discretionary acts performed by public officers and employees is generally one which requires an exercise of judgment and choice and involves an equitable decision of what is just and proper under the circumstances); Miree v. U.S., 490 F.Supp. 768 (N.D.Ga.1980) (under Georgia law, a "discretionary act" for which a public official is protected from liability calls for the exercise of reasoned judgment and entails examining facts, reaching reasoned conclusions, and acting on the conclusions in a way that has not been specifically directed); 57 Am.Jur.2d supra § 119 at 132 ("Discretion ... involves ... a determination made between competing and sometimes conflicting considerations."); cf. Long v. Seabrook, 260 S.C. 562, 197 S.E.2d 659 (1973) (a ministerial duty as distinguished from a quasi-judicial duty is a duty that is absolute, certain, and imperative and involves merely execution of a specific duty arising from fixed and designated facts).

As the record now stands, there is nothing whatever to indicate that competing choices were actually considered by the Department regarding whether it should...

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    ...faced with alternatives, and made a conscious decision based upon those considerations. Id. (citing Niver v. Dep't Highways & Pub. Transp., 302 S.C. 461, 395 S.E.2d 728 (Ct. App.1990)). In Jensen, this Court affirmed the Court of Appeals' finding that insufficient evidence was submitted to ......
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