Proctor v. Dept. of Health

Decision Date20 March 2006
Docket NumberNo. 4098.,4098.
Citation628 S.E.2d 496
CourtSouth Carolina Court of Appeals
PartiesDoug PROCTOR d/b/a Anderson Tire Recycling, Respondent, v. DEPARTMENT OF HEALTH AND ENVIRONMENTAL CONTROL, Appellant.

James W. Logan, Jr. and Stacey T. Coffee, of Anderson, for Appellant.

Jeffrey Falkner Wilkes, of Greenville, for Respondent.


A jury rendered a $688,503 verdict for Doug Proctor d/b/a Anderson Tire Recycling (Proctor) against the Department of Health and Environmental Control (DHEC). The circuit judge reduced the award to $300,000 pursuant to S.C.Code Ann. § 15-78-120(a)(1). DHEC contends Proctor failed to prove gross negligence; the trial court incorrectly charged the jury; and the damages awarded were so unduly liberal or grossly excessive as to require a new trial. We affirm.


Proctor owns and operates a waste tire processing and disposal facility in Anderson County, South Carolina. South Carolina law endows DHEC with the authority to issue permits to waste tire facilities. In 1993, when DHEC became involved in the regulation of waste tires, Proctor timely applied for all required permits. Proctor became a permitted facility for both waste tire processing and waste tire disposal.

The business of waste tire disposal turns on the availability of a per-tire rebate allowed by the South Carolina Department of Revenue. Section 44-96-170(N) requires sellers of new tires to pay a two-dollar fee to the Department of Transportation for every new tire sold. S.C.Code Ann. § 44-96-170(N) (2005). However, section 44-96-170(O) provides, "A wholesaler or retailer required to submit a fee pursuant to subsection (N) who delivers or arranges delivery of waste tires to a permitted or approved waste tire recycling facility . . . may apply for a refund of one dollar for each tire delivered." S.C.Code Ann. § 44-96-170(O) (2005). A tire retailer is entitled to a one-dollar rebate per tire for each used tire delivered to a permitted waste tire facility. Hence, the rebate essentially pays for the new-tire dealer's disposal of waste tires as the dealer pays a dollar to a waste tire disposal facility and gets back a dollar via the rebate.

DHEC maintains a list of approved waste tire recycling facilities. DHEC forwards the list to the Department of Revenue, and the Department of Revenue provides the rebate. The Director of Solid Waste Management, and later the Director of Solid Waste Reduction and Recycling with the Bureau of Land and Waste Management, William Culler, compiled the rebate list.

In 1998, DHEC found Proctor in violation of his permit and DHEC regulations. DHEC initiated an enforcement action, levied a fine against Proctor, and removed him from the rebate list. The case was eventually heard by this Court and resulted in an unpublished opinion. The underlying facts of the instant action are described in our prior opinion:

DHEC deferred enforcement action based on Proctor's commitment to build sheds where used tires for sale to the public could be separately stored. However, only one shed was constructed, and site conditions did not improve.

In September 1998, DHEC issued an administrative order to Proctor to take corrective action at the site and pay a civil penalty of $51,330. The order cited Proctor for numerous violations relating to storage of waste tires and removed Proctor from DHEC's Waste Tire Facility Rebate List. . . .

Proctor appealed the order to the Administrative Law Judge Division. The Administrative Law Judge (ALJ) upheld $8,200 of the penalty and ordered Proctor to close out the on-site drain field, clean and maintain fire access lanes, and cease commingling waste and used tires. The ALJ also ordered that Proctor be reinstated to the Waste Tire Rebate List. Both Proctor and DHEC appealed to the DHEC Board. The Board made its own findings of fact that the site exceeded the 1,500 tires allowed. Based on its factual findings, it partially reversed the ALJ, removed Proctor from the Waste Tire Rebate List until he complied with his permit and the regulations, and increased the civil penalty by $500 to $8,700. Proctor appealed to the circuit court, which affirmed the Board's decision.

Doug Proctor d/b/a Anderson Tire Recycling v. South Carolina Dep't of Health and Envtl. Control, 2003-UP-472 (S.C. Ct.App. filed July 24, 2003). We reversed the Board's increase of the fine and removal of Proctor from the rebate list:

Proctor also argues the Board erred in reversing the ALJ's order by increasing the fine where it was supported by substantial evidence. In a related argument, he contends the Board erred in overturning the ALJ's decision that he should remain on DHEC's Waste Tire Rebate List. We agree and reverse those portions of the Board's order.

Under South Carolina Code Annotated § 44-96-170(O) (2002), any retailer that sells new tires and delivers collected waste tires to a permitted facility is entitled to a refund of one dollar per waste tire delivered. If a tire retailer does not deliver its waste tires to a licensed waste tire facility, it is not eligible to claim the refund. Although DHEC's administrative order took Proctor off the rebate list, the ALJ ordered that Proctor be restored to the list. The Board then ordered Proctor's facility to be removed from the list until Proctor demonstrated "full compliance with this Order, his permits, and applicable law and regulation." The Board erred in doing so.

The ALJ found Proctor violated waste tire laws, but also found DHEC did not provide sufficient evidence to establish that he exceeded his storage limits or that he was indifferent to regulatory requirements. As substantial evidence supports the ALJ's decision to restore Proctor to the rebate list and supports the fine imposed, the Board erred in reversing the ALJ. Further, section 44-96-170(O), which sets forth the rebate system, indicates that as long as a wholesaler or retailer delivers waste tires to a permitted or approved waste tire recycling facility, he may apply for the refund. All permitted facilities are thus on the rebate list. There is no authority for the ALJ, or any other entity, to remove a licensed business from the list; only by revoking or suspending its license can an entity be removed from the list. As a licensed entity, Proctor is entitled to remain on the Waste Tire Rebate List.

Proctor, 2003-UP-472 (S.C. Ct.App. filed July 24, 2003).

Proctor subsequently was restored to the rebate list. Proctor initiated this action, maintaining DHEC was grossly negligent under section 15-78-60(12) of the South Carolina Code by keeping his facility off of the rebate list from 2000 until after this Court's decision in 2003. DHEC moved for a directed verdict on the ground Proctor failed to establish DHEC exercised a power or function in a grossly negligent manner. The trial court denied the directed verdict motion, and the jury awarded actual damages to Proctor in the amount of $688,503. Pursuant to Section 15-78-120(a)(1) of the South Carolina Code, the award was reduced to the statutory maximum of $300,000. DHEC moved for a judgment not withstanding the verdict (JNOV), or, in the alterative, a new trial or new trial nisi remittitur. The trial court denied these motions.

I. Tort Claims Act
A. Waiver of Immunity

"The Tort Claims Act governs all tort claims against governmental entities and is the exclusive civil remedy available in an action against a governmental entity or its employees." Parker v. Spartanburg Sanitary Sewer Dist., 362 S.C. 276, 280, 607 S.E.2d 711, 714 (Ct.App.2005) (citing Flateau v. Harrelson, 355 S.C. 197, 584 S.E.2d 413 (Ct.App.2003); Wells v. City of Lynchburg, 331 S.C. 296, 501 S.E.2d 746 (Ct.App.1998)); Hawkins v. City of Greenville, 358 S.C. 280, 291, 594 S.E.2d 557, 563 (Ct.App.2004). "Notwithstanding any provision of law, this chapter, the `South Carolina Tort Claims Act', is the exclusive and sole remedy for any tort committed by an employee of a governmental entity while acting within the scope of the employee's official duty." S.C.Code Ann. § 15-78-200 (2005); see also Olson v. Faculty House of Carolina, Inc., 344 S.C. 194, 544 S.E.2d 38 (2001) (observing the Tort Claims Act is the exclusive remedy for tort claims against governmental entities), aff'd, 354 S.C. 161, 580 S.E.2d 440 (2003).

The Act provides: "The State, an agency, a political subdivision, and a governmental entity are liable for their torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein." S.C.Code Ann. § 15-78-40 (2005). Section 15-78-30(d) defines "governmental entity" as "the State and its political subdivisions." S.C.Code Ann. § 15-78-30(d) (2005); see Hawkins, 358 S.C. at 292, 594 S.E.2d at 563; Flateau, 355 S.C. at 204, 584 S.E.2d at 416. "The Tort Claims Act waives sovereign immunity for torts committed by the State, its political subdivisions, and governmental employees acting within the scope of their official duties." Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 121, 542 S.E.2d 736, 739 (Ct.App.2001).

However, the Act's waiver of governmental immunity is limited. Hawkins, 358 S.C. at 293, 594 S.E.2d at 564. Section 15-78-60 currently contains forty exceptions to the waiver of immunity. See S.C.Code Ann. § 15-78-60 (2005 & Supp.2005). Moreover, the provisions of the Act "must be liberally construed in favor of limiting the liability of the State." S.C.Code Ann. § 15-78-20(f) (2005); see also Steinke v. S.C. Dep't of Labor Licensing and Regulation, 336 S.C. 373, 393, 520 S.E.2d 142, 152 (1999) ("Provisions establishing limitations upon and exemptions from liability of a governmental entity must be liberally construed in favor of limiting liability."); Baker v....

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