Wooten by Wooten v. South Carolina Dept. of Transp.

• Decision Date: 04 February 1997
• Docket Number: No. 2654,2654
• Citation: Wooten by Wooten v. South Carolina Dept. of Transp., 485 S.E.2d 119, 326 S.C. 516 (S.C. App. 1997)
• Court: South Carolina Court of Appeals
• Parties: Rebekah WOOTEN, a minor by her Guardian Ad Litem Margaret WOOTEN, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION f/k/a South Carolina Department of Highways and Public Transportation, Appellant. Margaret WOOTEN, Respondent, v. SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION f/k/a South Carolina Department of Highways and Public Transportation, Appellant. . Heard

Page 119

485 S.E.2d 119

326 S.C. 516

Rebekah WOOTEN, a minor by her Guardian Ad Litem Margaret

WOOTEN, Respondent, v.SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION f/k/a South

Carolina Department of Highways and Public

Transportation, Appellant.

Margaret WOOTEN, Respondent, v.SOUTH CAROLINA DEPARTMENT OF TRANSPORTATION f/k/a South

Carolina Department of Highways and Public

Transportation, Appellant.

No. 2654.

Court of Appeals of South Carolina.

Heard Feb. 4, 1997.

Decided April 7, 1997.

Rehearing Denied May 22, 1997.

Certiorari Granted in Part Feb. 23, 1998.

Charles E. Carpenter, Jr., and Deborah Harrison Sheffield, both of Richardson, Plowden, Carpenter & Robinson, Columbia; and William Jeff Weston and Merl F. Code, both of Code & Weston, Greenville, for appellant.

W. Harold Christian, Jr., of Christian & Davis, Greenville, for respondents.

CONNOR, Judge:

The jury awarded Rebekah Wooten and her mother, Margaret Wooten, verdicts stemming from an accident in which Rebekah was struck by an automobile.South Carolina Department of Transportation(SCDOT) appeals the denial of its post-trial motions.We affirm.

Facts

Normally twelve-year-old Rebekah Wooten, a student at Greer Middle School, rode the bus home from school.On February 10, 1992, she decided to walk because she had gone to discuss a grade with one of her teachers after school and had missed the bus.As she attempted to cross the intersection of Wade Hampton Boulevard and Memorial Drive, she was struck by a car.

Although the record does not contain the date the intersection was initially constructed, traffic signals were added in 1979.The day of the accident, the signals were designed to allow a continuous green light on Wade Hampton unless loop sensors detected vehicles on the cross street, Memorial Drive.When a vehicle triggered the loop sensors, the light changed to allow traffic on Memorial Drive to cross the intersection.The time for the cross traffic was extended for each vehicle the sensors detected.The minimum time for the green light for Memorial Drive was eight seconds, with four seconds added as additional cars crossed the sensors up to a maximum of twenty-five seconds.

Wade Hampton Boulevard was seven lanes wide and 112 feet across where the accident occurred.SCDOT standards assume a normal walking speed of four feet per second.Thus a minimum of twenty-eight seconds would have been required to cross the intersection.

In February 1991, the school flashers were not working properly at the intersection of Wade Hampton and Forest Street, approximately 800 feet away from the Memorial Drive intersection.The department decided to remove the flashers at Forest Street because the driver of an approaching vehicle could not adequately see an oncoming vehicle.SCDOT contemplated making the intersection of Wade Hampton and Memorial a possible alternative student route.However, the principal at Greer Middle School indicated he did not want students crossing Wade Hampton at all.Therefore, SCDOT decided not to make any changes to the Memorial Drive intersection.

Rebekah's school was located in the northwest quadrant of the intersection.Rebekah was proceeding across an unmarked crosswalk facing a green light.She made it to a concrete median, where she paused because the light changed colors.At that point, there were cars in the two northbound lanes closest to her.These cars stopped to allow her to finish crossing the street.Unfortunately, the driver of the car in the far northbound lane could not see Rebekah, and struck her as she attempted to get across.

Rebekah's injuries required her to miss a year of school, caused permanent facial disfigurement, and changed her vision.Additionally, she now has other physical and mental limitations.

Procedure

Rebekah's mother, Margaret Wooten, filed one complaint as Rebekah's guardian, and a second complaint for Rebekah's medical expenses.The complaints initially named the SCDOT (formerly known as the South Carolina Department of Highways and Public Transportation), the City of Greer, the Greenville County School District, and Joyce Henderson as defendants.

Henderson settled with the Wootens, paying each $6,250.The Greenville County School District also settled, giving $9,000 to Rebekah and $1,000 to her mother.The actions against SCDOT and Greer were consolidated for trial.At trial, after Wooten had completed her case, she voluntarily dismissed the City of Greer, leaving only SCDOT as a defendant.The jury awarded Rebekah $315,000 and her mother $135,000.

SCDOT filed a series of post-trial motions.The trial court granted a setoff for the settlement amounts Henderson and the school had paid.He denied the other motions.SCDOT appeals the denial of its motions for judgment notwithstanding the verdict, and for new trial or, alternatively, remittitur of the verdict to $250,000 under the South Carolina Tort Claims Act.

Scope of Review

A negligence action is legal in nature.Mortgage Loan Co. v. Townsend, 156 S.C. 203, 152 S.E. 878(1930).In an action at law tried by a jury, our jurisdiction extends merely to correction of errors of law.Townes Assocs., Ltd. v. City of Greenville, 266 S.C. 81, 221 S.E.2d 773(1976).We will not disturb the jury's factual findings unless a review of the record discloses there is no evidence which reasonably supports the findings.Id.In ruling on motions for directed verdict and JNOV, we must view the evidence and the inferences that can reasonably be drawn therefrom in the light most favorable to the nonmoving party.Strange v. S.C. Dep't of Highways & Pub. Transp., 314 S.C. 427, 445 S.E.2d 439(1994).If the evidence yields more than one inference, we must deny the motions.Id.

Analysis

The South Carolina Tort Claims Act waives sovereign immunity for torts committed by the State of South Carolina, its political subdivisions, and governmental employees acting within the scope of their official duties.S.C.Code Ann. § 15-78-10 through 15-78-190(Supp.1996).The Act lists numerous exceptions to the waiver of immunity.S.C.Code Ann. § 15-78-60.The governmental entity asserting a limitation upon liability, or an exception to the waiver of immunity under the Torts Claims Act, must prove the exception or limitation as an affirmative defense.Strange v. South Carolina Dep't of Highways & Pub. Transp., 314 S.C. 427, 445 S.E.2d 439(1994).

SCDOT argues it has design and discretionary immunity.S.C.Code Ann. 15-78-60(15).The code exempts governmental entities from liability for certain situations.It excludes governmental responsibility for the following:

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, warning devices, guardrails, or median barriers when the failure is the result of a discretionary act of the governmental entity.

The signs, signals, warning devices, guardrails, or median barriers referred to in this item are those used in connection with hazards normally connected with the use of public ways and do not apply to the duty to warn of special conditions such as excavations, dredging, or public way construction.

Governmental entities are not liable for the design of highways and other public ways.

Id.(paragraph structure added).

A.Design Immunity

SCDOT first argues it is not liable because the Tort Claims Act provides immunity for design defects.S.C.Code Ann. § 15-78-60(15)(Supp.1996).

Statutes waiving sovereign immunity must be strictly construed.Truesdale v. South Carolina Highway Dep't, 264 S.C. 221, 213 S.E.2d 740(1975).However, all rules of statutory construction must yield to the principle that courts should endeavor to ascertain the real intention of the legislature.Horn v. Davis Electrical Constructors, Inc., 307 S.C. 559, 416 S.E.2d 634(1992).When interpreting a statute, legislative intent must prevail if it can be reasonably discovered in the language used, which must be construed in light of the intended purpose of the statute.Gambrell v. Travelers Ins. Cos., 280 S.C. 69, 310 S.E.2d 814(1983).In construing a statute, its words must be given their plain and ordinary meaning.Id.Keeping these principles in mind, we must first analyze the statute.

Although the statute clearly retains sovereign immunity for highway design, it does not define design.¹However, some courts have held:

[A]statute may provide that neither a public entity nor a public employee is liable for an injury that was caused by the plan or design of a construction of, or improvement to, public property where such plan or design was approved in advance of the construction or improvement by either the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval, or where such plan or design was prepared in conformity with standards previously so approved, if the court determines that there is any substantial evidence on the basis of which (1) a reasonable public employee could have adopted the plan or design, or the standards therefor, or (2) a reasonable legislative body, or other body or employee, could have approved the plan or design, or the standards therefor.

57 Am.Jur.2d § 333(1988);see, e.g., State v. Webster, 88 Nev. 690, 504 P.2d 1316(1972)(discretionary immunity did not shield negligence of governmental entity in failing to install cattle guard at freeway entrance where motorist was killed when his car crashed into a horse that was wandering at night).

Discretionary immunity is not, however, perpetual.57 Am.Jur.2d § 335.If the governmental entity has actual or constructive notice the original plan or design has changed, producing a dangerous condition, the entity will not be shielded from a failure to take corrective action.Id.;accord, Baldwin v. State, 6 Cal.3d 424, 99 Cal.Rptr. 145, 154-55, 491[326 S.C. 524] P.2d 1121, 1130-31 (1972)(although mere passage...