WOOTEN BY WOOTEN v. SC Dept. of Transp.

• Decision Date: 18 January 1999
• Docket Number: No. 24877.,24877.
• Citation: 511 S.E.2d 355,333 S.C. 464
• Court: South Carolina Supreme Court
• 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, Petitioner. Margaret Wooten, Respondent, v. South Carolina Department of Transportation f/k/a South Carolina Department of Highways and Public Transportation, Petitioner.

333 S.C. 464

511 S.E.2d 355

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, Petitioner.

Margaret Wooten, Respondent, v. South Carolina Department of Transportation f/k/a South Carolina Department of Highways and Public Transportation, Petitioner.

No. 24877.

Supreme Court of South Carolina.

Heard November 17, 1998.

Decided January 18, 1999.

Charles E. Carpenter, Jr., of Richardson, Plowden, Carpenter & Robinson, P.A., of Columbia; and Merl F. Code, of Code Law Firm, of Greenville, for petitioner.

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

MOORE, Justice:

We granted a writ of certiorari to review the Court of Appeals' decision¹ regarding petitioner's (DOT's) claim of immunity under the Tort Claims Act. We affirm as modified herein.

FACTS

Twelve-year-old Rebekah Wooten was injured when she attempted to cross Wade Hampton Boulevard at Memorial Drive on her way home from school. Rebekah had crossed three lanes of traffic and reached the median in the middle of the road when the light changed. Although traffic on the other side of the median waited for Rebekah in two lanes of traffic, a car approaching in the middle lane struck her before she finished crossing.

Rebekah and her mother (respondents) commenced these actions for negligence and loss of consortium alleging DOT was negligent in failing to provide traffic lights that would allow adequate time for a pedestrian to cross, or provide pedestrian walk signals, or to warn pedestrians of the hazardous nature of the intersection. The jury returned verdicts for respondents. DOT appealed the denial of its post-trial motions. The Court of Appeals affirmed.

ISSUES

1) Does absolute immunity for highway design apply in this case?

2) Does the evidence establish DOT was entitled to discretionary immunity for signs, signals, and warning devices as a matter of law?

DISCUSSION

1) Design immunity

The Tort Claims Act provides certain exceptions to a government entity's waiver of immunity. Under S.C.Code Ann. § 15-78-60(15) (Supp.1997), government entities "are not liable for the design of highways and other public ways." DOT claimed in post-trial motions it was entitled to this immunity as a matter of law in this case.

The trial court ruled the applicable immunity was not absolute immunity for highway design but immunity for the maintenance of traffic signals under § 15-78-60(15). This section provides immunity for liability arising from:

absence, condition, or malfunction of any sign, signal, [or] warning device ... unless the absence, condition, or malfunction is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice .... 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, [or] warning devices ... when the failure is the result of a discretionary act of the governmental entity.

(Emphasis added).²

On appeal, the Court of Appeals held DOT had design immunity but it was not perpetual. Once DOT had notice the intersection was hazardous, it was no longer immune from liability. Since there was evidence DOT had notice before the injury in this case, the Court of Appeals concluded DOT had not established it was entitled to design immunity as a matter of law and its post-trial motions were properly denied.

We agree with the result reached by the Court of Appeals but adopt the reasoning of the trial court. A specific statutory provision prevails over a more general one. Atlas Food Systems & Serv., Inc. v. Crane, 319 S.C. 556, 462 S.E.2d 858 (1995). Here, the immunity provision regarding signs and signals is the more specific one applicable to these facts and therefore controls in this case. Accordingly, the trial judge's ruling was correct.

2) Discretionary immunity for signs, signals, and warning devices

As quoted above, § 15-78-60(15) provides discretionary immunity for the failure of a government entity to initially place signs, signals, or warning devices. The Court of Appeals ruled there was conflicting evidence on this issue and it was properly submitted to the jury. We agree.

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