Cynthia Wright v. SCDOT

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Cynthia Wright and Richard Wright, Appellants,

v.

South Carolina Department of Transportation, Pilot
Travel Centers, LLC, Speedway LLC, Ashley Land
Surveying, Inc., f/k/a Ashley Engineering & Consulting,
Inc., and Munlake Contractors, Inc., Defendants,

Of which South Carolina Department of Transportation,
Pilot Travel Centers, LLC, Speedway, LLC, Ashley Land
Surveying, Inc. f/k/a Ashley Engineering and Consulting,
Inc. are the Respondents.

Appellate Case No. 2017-001563

Appeal From Berkeley County
Roger M. Young, Sr., Circuit Court Judge
Kristi Lea Harrington, Circuit Court Judge

Opinion No. 5921
Heard May 27, 2020 – Filed July 6, 2022

AFFIRMED

S. Randall Hood and Jordan Christopher Calloway, both
of McGowan Hood & Felder, LLC, of Rock Hill, Shawn
Boyd Deery, of McGowan Hood & Felder, LLC, of
Columbia, and Kevin B. Smith, of Hoffman Law Firm, of
North Charleston; all for Appellants.
 R. Davis Howser and Jeffrey Ian Silverberg, both of
Howser Newman & Besley, LLC, of Columbia, for
Respondent Pilot Travel Centers, LLC; Roy Pearce
Maybank and Amanda R. Maybank, both of Maybank
Law Firm, LLC, of Charleston, for Respondent South
Carolina Department of Transportation; Jerome Bennett
Crites, III and Mary Barnwell Ramsey, both of Shumaker
Loop & Kendrick, LLP, of Charleston, for Respondent
Speedway, LLC; and Bruce Alan Berlinsky, of
Charleston, for Respondent Ashley Land Surveying, Inc.

MCDONALD, J.: Cynthia and Richard Wright appeal the circuit court's orders
granting summary judgment to the South Carolina Department of Transportation
(SCDOT), Pilot Travel Centers, Speedway, LLC, and Ashley Land Surveying
(Ashley), arguing the circuit court erred in finding (1) the private entities did not
owe a duty of care to the Wrights with respect to the design and placement of a
highway median and the driveways constructed pursuant to an encroachment
permit, (2) no question of fact existed as to proximate cause, and (3) the South
Carolina Tort Claims Act barred their action against SCDOT. We affirm the
orders of the circuit court.

Facts and Procedural History

In September 2000, SCDOT contacted Speedway regarding the acquisition of a
9,102 square foot right-of-way for a project redesigning the I-26 interchange next
to Speedway’s property on Highway 17-Alternative in Summerville. SCDOT
acquired the right of way in November 2000. In September 2001, Pilot purchased
the Speedway property, which contained an existing gas station, and redeveloped
the property as a Pilot travel center. In May 2002, Pilot submitted an application
for an encroachment permit to SCDOT in order to construct three access driveways
for the new travel center. Ashley is an engineering firm Pilot retained to assist
with obtaining the encroachment permit. At the time of SCDOT's approval of
Pilot's application for the encroachment permit, no raised highway median
prevented left turns into the property from the southbound lane of Highway 17A.1

1
The original Speedway gas station on the property already had three driveways.
These driveways were relocated as part of the Pilot rebuild. At no time prior to the
Wrights' accident was there a non-traversable median at this location on Highway
17A.
Pilot began constructing the new travel center in August 2002. During this same
time period, SCDOT was working on two projects in the area: the widening of
Highway 17A in front of the travel center (Widening Project) and a separate
project to redesign the I-26 interchange (Interchange Project) adjacent to it.
SCDOT used its own engineers to design the plans for the Widening Project but
hired an outside firm to design the Interchange Project. SCDOT completed the
Widening Project on June 17, 2002, and the Interchange Project in November
2003.

On October 6, 2012, the Wrights were traveling on their motorcycle on Highway
17A near the I-26 overpass when a pickup truck driven by Daniel Sena turned left
across their lane of travel directly into the Wrights' path. Sena was in the median
attempting to turn left into the Pilot travel center when he collided with the
Wrights' motorcycle and seriously injured them. Sena fled the scene of the
accident and was later taken into custody, where he tested positive for cocaine and
had a .12 blood alcohol level. Sena subsequently pled guilty to two counts of
felony DUI, leaving the scene of an accident with great bodily injury, and
possession of cocaine.

The Wrights filed an action for negligence and loss of consortium against SCDOT,
Pilot, and C & A Unlimited, Inc., in Berkeley County, and an action against
Marathon Petroleum Company, Ashley, and Munlake Contractors in Dorchester
County. 2 They subsequently amended the Berkeley complaint to substitute
Speedway as a party for Marathon Petroleum, and the two cases were consolidated
in Berkeley County. Munlake Contractors failed to appear and was held in default.

The Honorable Roger Young granted Pilot's motion for summary judgment,
finding the Wrights could not establish Pilot owed them a duty of care "as a
landowner abutting the portion of the highway" where the Wrights were injured.
The circuit court denied the Wrights' Rule 59(e), SCRCP, motion as well. The
Honorable Kristi Harrington subsequently granted summary judgment to
Speedway and Ashley by Form 4 order, finding no genuine issue of material fact
existed as to the issues of duty and proximate cause for the Wrights' claims against
these private defendants. The circuit court further found the claims against
SCDOT were barred by Section 15-78-60 of the South Carolina Code, which sets
forth the Tort Claims Act's exceptions to the waiver of governmental immunity.

Standard of Review

2
Munlake was the general contractor for the Pilot travel center.
"In reviewing a grant of summary judgment, our appellate court applies the same
standard as the trial court under Rule 56(c), SCRCP." Woodson v. DLI Properties,
LLC, 406 S.C. 517, 528, 753 S.E.2d 428, 434 (2014). "In determining whether
summary judgment is proper, the court must construe all ambiguities, conclusions,
and inferences arising from the evidence against the moving party." Weston v.
Kim's Dollar Store, 399 S.C. 303, 308, 731 S.E.2d 864, 866 (2012) (quoting Byers
v. Westinghouse Elec. Corp., 310 S.C. 5, 7, 425 S.E.2d 23, 24 (1992)).

Law and Analysis

I. Pilot, Speedway, and Ashley

A. Duty of Care

The Wrights contend the circuit court erred in finding Pilot, Speedway, and Ashley
owed them no duty of care because these entities negotiated with SCDOT for the
creation of a dangerous artificial condition—a non-raised, painted flush median in
place of a safer raised concrete median—during the design of the Highway 17A
Widening Project.3 The Wrights allege Pilot breached its duty of care to travelers
by seeking and obtaining the alteration of SCDOT's plan for a raised median,
pursuing entrance driveways too close to an adjacent intersection, and failing to
address problems with the nearby highway intersection despite notice of accidents
there. We agree with the circuit court that under South Carolina law, the Wrights
cannot establish the private entities owed them a duty of care for conditions on
Highway 17A.

In order to prove negligence, a plaintiff must show: (1)
defendant owes a duty of care to the plaintiff; (2)
defendant breached the duty by a negligent act or
omission; (3) defendant's breach was the actual and
proximate cause of the plaintiff's injury; and (4) plaintiff
suffered an injury or damages.

Doe v. Marion, 373 S.C. 390, 400, 645 S.E.2d 245, 250 (2007). "In a negligence
action, '[t]he court must determine, as a matter of law, whether the law recognizes
a particular duty.'" Repko v. Cnty. of Georgetown, 424 S.C. 494, 500, 818 S.E.2d

3
A flush median is an area in the middle of a roadway that can easily be traversed
by a vehicle.
743, 747 (2018) (alteration in original) (quoting Steinke v. S.C. Dep't of Lab.,
Licensing & Regul., 336 S.C. 373, 387, 520 S.E.2d 142, 149 (1999)). "Absent a
legally recognized duty, the defendant in a negligence action is entitled to a
judgment as matter of law." Cole v. Boy Scouts of Am., 397 S.C. 247, 251, 725
S.E.2d 476, 478 (2011). "Whether a duty exists is a question of law for the Court."
Skinner v. S.C. Dep't of Transp., 383 S.C. 520, 523, 681 S.E.2d 871, 873 (2009).
"South Carolina common law only imposes a duty for highway conditions where
an individual or business has undertaken an activity that creates an artificial
condition on the highway which is dangerous to travelers." Id. at 524, 681 S.E.2d
at 873. Examples of artificial conditions created by an abutting property owner
might include materials spilled on a highway or smoke emissions that obstruct
visibility. See, e.g., id. at 525, 681 S.E.2d at 874.

SCDOT engineers designed the plans for the Widening Project in 1998, and the
outside design firm completed the plans for the Interchange Project in 1999.
Leland Colvin is currently the SCDOT Director of Engineering, but he was
previously the program manager for both the Widening Project and the Interchange
Project. Colvin testified in his deposition that the outside firm's plans for the
Interchange Project originally showed a raised median as a placeholder at this
location on Highway 17A, but the plans SCDOT engineers designed for the
Widening Project never included a raised median. When Colvin combined the two
plans, he made the decision to utilize a flush median instead of a raised median in
order to comply the SCDOT Highway Design Manual, which he considers the
authority for highway design in South Carolina. Colvin testified he combined the
plans so the Interchange Project plan would accurately reflect SCDOT's design for
the Widening Project, and "the widening project always had that painted flush
median."

The Wrights contend handwritten notes on an August 28, 2000 SCDOT letter to
Marathon Petroleum support their claim that the circuit court erred in finding the
private entities owed them no duty of care with respect to the dangerous condition,
which they claim Pilot's predecessor negotiated during SCDOT's design and
construction of the Highway 17A Widening Project. In this letter, SCDOT District
Right of Way Manager Tommy Smoak wrote to a Marathon Petroleum
representative, Robert Greiwe, referencing curb cuts and enclosing a copy of
driveway drawings for the project. Handwritten notes Greiwe later made at the
bottom of this letter state, "Per Phone Verification w/ T. Smoak (negotiated median
removal & drive cuts)" and "Approved to have painted median only from far
western curb cut to stop bar (stop light). In other words, the unmountable median
has been eliminated from the plan." For the reasons discussed below, we agree
with the circuit court that despite these notations on the letter, the evidence in the
record establishes the decision to implement a flush median as opposed to a raised
median remained an SCDOT engineering decision, not the responsibility of the
private entities.

Colvin testified that any statement that Pilot or Speedway "negotiated" the raised
median out of the plans was inaccurate because the removal of a placeholder
median (from the Interchange Plan, not the Widening Plan) was not due to any
negotiation with or action by a private entity. He confirmed the plans for the
Widening Project never contemplated a raised, non-traversable median. Colvin
made the decision to use a flush median in his capacity as program manager, and
from his perspective, "it was purely an engineering decision based on the Highway
Design Manual, based on the difference of the two projects, the purpose and need."
See S.C. Code Ann. § 15-78-60 (15) (2005) (recognizing SCDOT's initial
discretion regarding the placement of highway median barriers). The Wrights have
theorized that Pilot or Speedway may have negotiated with SCDOT for the non-
raised flush median as part of SCDOT's right-of-way acquisition process. But
evidence produced in discovery regarding SCDOT's purchase of the right-of-way
for over two times the property's appraised value belies this theory, and the record
contains no evidence of any "quid pro quo." Colvin did not recall ever speaking
with any representative of the private parties regarding the decision to use a flush
median, and he testified there simply was no such negotiation.

In addition to Colvin's testimony that it was SCDOT's decision to use a painted
flush median in the Widening Project to address the needs of the combined plan,
our supreme court's decision in Skinner further supports the circuit court's granting
of summary judgment to the private entities. 383 S.C. at 525, 681 S.E.2d at 874.
The Skinners were injured in an accident when their car was struck head on by a
vehicle that veered onto the shoulder of the road near a stable driveway,
overcorrected, and crossed over the centerline of the roadway. Id. at 522, 681
S.E.2d at 872. The Skinners sued the owners of the driveway and stable; however,
the circuit court granted summary judgment, finding the property owners owed the
Skinners no duty of care. Id. at 522, 681 S.E.2d at 872–73. On appeal, the
Skinners argued traffic from horse trailers approaching the driveway caused ruts in
the highway's shoulder, creating a dangerous condition of which the property
owners had a duty to warn travelers along the highway. Id. at 523, 681 S.E.2d at
873. Our supreme court disagreed, finding the owners of property abutting a
highway, who neither possess nor control the highway, owe no duty of care to
travelers on the highway. Id. at 524, 681 S.E.2d at 874. The court recognized the
ruts along the shoulder were "the natural consequences of highway use," and thus,
not artificial conditions giving rise to liability. Id. The court rejected the Skinners'
argument that the owners of the driveway owed a duty of care to travelers due to
their creation of the highway defect (in that the use of their driveway led to the ruts
on the road shoulder). Id. at 525, 681 S.E.2d at 874. In finding the Skinners'
reliance on SCDOT's ARMS 4 manual misplaced, the court held the SCDOT
regulations were "inapplicable to respondents [the property owners] and are not a
source of any duty. Moreover, they specifically impose the responsibility for
maintaining rights-of-way, such as highway shoulders, on the Department." Id.5

For these reasons, the circuit court properly found the Wrights failed to establish
any private entity owed them a duty of care because neither Pilot nor Speedway
possessed or controlled the highway; possession and control of highways lies with
SCDOT. See id. at 524–25, 681 S.E.2d at 874 ("We agree with the trial court that
a contractor performing highway alterations owes a duty to travelers, but we find
no analogous duty on the part of an owner of property abutting a highway who
neither possesses nor controls the highway."). There is no evidence here that Pilot,
Speedway, or Ashley created an artificial condition on Highway 17A. See id. at
523, 681 S.E.2d at 873 ("South Carolina common law only imposes a duty for
highway conditions where an individual or business has undertaken an activity that
creates an artificial condition on the highway which is dangerous to travelers.").

Even if SCDOT's installation of a flush median in lieu of a raised median could be
construed as an artificial condition in the light most favorable to the Wrights, by
statute SCDOT is exclusively responsible for highway design. See S.C. Code Ann.
§ 57-3-110 (2018) ("The Department of Transportation shall have the following
duties and powers: (1) lay out, build, and maintain public highways and bridges,
including the exclusive authority to establish design criteria, construction
specifications, and standards required to construct and maintain highways and
bridges; . . . (3) cause the state highways to be marked with appropriate directions

4
SCDOT's Access and Roadside Management Standards (ARMS) manual
provides guidelines to companies, developers, and private individuals seeking
access to the state highway system. The South Carolina Highway Design Manual
is a separate manual; both manuals provide mandatory rules, along with guidelines,
as well as a process for seeking exceptions to these rules and guidelines.
5
SCDOT's 30(b)(6) designee acknowledged in his deposition that SCDOT
possesses and controls Highway 17A and is responsible for maintaining highways
in a safe condition.
for travel and regulate the travel and traffic along such highways, subject to the
laws of the State. . . ."); S.C. Code Ann. § 57-1-30 (2018) (stating SCDOT "shall
have as its functions and purposes the systematic planning, construction,
maintenance, and operation of the state highway system and the development of a
statewide intermodal and freight system that is consistent with the needs and
desires of the public"); S.C. Code Ann. § 15-78-60 (15) (2005) (recognizing
SCDOT's initial discretion regarding the placement of highway median barriers).

As with the median selection, SCDOT was responsible for granting the
encroachment permit and approving the design and placement of Pilot's driveways
accessing Highway 17A. To the extent the Wrights argue Pilot or Ashley created a
dangerous condition in failing to request the encroachment permit and construct
the driveways in a manner that would prevent access by travelers making left turns
into the travel center from the opposite side of Highway 17A, we agree with the
circuit court that this argument must fail. Without more, the existence of permitted
access driveways for ingress and egress to a business does not impose a duty upon
a private property owner with respect to accidents that occur on the public
highway. 6

Colvin's deposition testimony supports this finding as well. He explained that
when SCDOT reviews encroachment permit applications, safety and the operation
and functionality of the state highway system are the two primary concerns
SCDOT considers in evaluating requests for access. Safety considerations differ
for interstate systems with no such access points, for urban arteries, minor arteries,
and neighborhood streets. Colvin elaborated, "[n]o roadway is treated the same
with regards to the reasonable expectation of those drivers."

With respect to the Wrights' claim that the private entities failed to take remedial
action to keep this area of Highway 17A in a safe condition or to warn travelers of
the alleged dangerous condition, we have been unable to locate any South Carolina
authority establishing a private property or business owner owes such a duty to
warn or make safe a public highway. Like the circuit court, we find the
Pennsylvania case of Allen v. Mellinger, 625 A.2d 1326 (Pa. Commw. Ct. 1993),

6
We find the Wrights' reliance upon the Georgia case of Keith v. Beard, 219 Ga.
App. 190, 464 S.E.2d 633 (1995), is misplaced because the question in that case
involved the property owner's violation of a commercial driveway permit
requirement and an accident occurring when a motorist exited an unpermitted
driveway.
helpful to our analysis. There, the plaintiff attempted to make a left turn into the
parking lot of a meat market when she collided with a truck travelling in the
opposite direction. Id. at 1327. The crest of a hill limited visibility for both
drivers, and motorists in the area often exceeded the fifty-mile per hour speed
limit. Id. Allen and her passenger sustained serious injuries; she sued the owners
of the market, "alleging that they had breached a duty of care by failing to warn her
of a dangerous condition." Id.

Relying upon the Restatement (Second) of Torts, § 349, the trial court granted the
business owners' motion for summary judgment. Id. at 1328.7 The Pennsylvania
Commonwealth Court affirmed, noting state highways are the property of the
Commonwealth, which "has the exclusive duty for the maintenance and repair of
state highways." Id. Thus, any duty to maintain the highway or warn of a
dangerous condition fell to the Commonwealth and not the abutting landowners.
Id. The court also rejected Allen's argument that the business owners' "failure to
erect signs, paint lines, or place curbing or barricades in the store parking lot,
indicating where it was safe to turn, created a dangerous condition which led to her
accident." Id. at 1329 n. 6.

Similarly, the private entities here owed no duty to warn or take other remedial
action to address the safety of Highway 17A. As noted above, SCDOT is
statutorily responsible for design, maintenance, and repair of the state highway
system and for placement of appropriate signage. See § 57-3-110 ("The
Department of Transportation shall have the following duties and powers: (1) lay
out, build, and maintain public highways and bridges, including the exclusive
authority to establish design criteria, construction specifications, and standards

7
The Restatement (Second) of Torts, § 349, provides:

A possessor of land over which there is a public highway
or private right of way is not subject to liability for
physical harm caused to travelers upon the highway or
persons lawfully using the way by his failure to exercise
reasonable care
(a) to maintain the highway or way in safe condition for
their use, or
(b) to warn them of dangerous conditions in the way
which, although not created by him, are known to him
and which they neither know nor are likely to discover.
required to construct and maintain highways and bridges; . . . (3) cause the state
highways to be marked with appropriate directions for travel and regulate the
travel and traffic along such highways, subject to the laws of the State; . . .").

Accordingly, we find the circuit court properly declined to impose a duty of care
upon a private "owner of property abutting a highway who neither possesses nor
controls the highway." See Skinner, 383 S.C. at 524–25, 681 S.E.2d at 874; see
also Cole, 397 S.C. at 251, 725 S.E.2d at 478 ("Absent a legally recognized duty,
the defendant in a negligence action is entitled to a judgment as matter of law.").
Thus, we affirm the orders granting summary judgment to the private entities. 8

II. SCDOT

As to SCDOT, the Wrights assert the circuit court erred in finding the Tort Claims
Act barred recovery because SCDOT had constructive notice that the flush median
allowing left turns into the Pilot travel center posed a risk of harm to motorists.
The Wrights further argue that because SCDOT approved Pilot's encroachment
permit in violation of its own policies and procedures, SCDOT is not entitled to
discretionary or design immunity. Finally, the Wrights contend SCDOT was
grossly negligent in failing to investigate and improve the intersection given the
high rate of accidents in this area. We find the circuit court properly granted
SCDOT summary judgment pursuant to the Tort Claims Act.

"The Tort Claims Act waives immunity for torts committed by the State, its
political subdivisions, and governmental employees acting within the scope of their
official duties." Pike v. S.C. Dep't of Transp., 343 S.C. 224, 230, 540 S.E.2d 87,
90 (2000). The General Assembly has recognized it is "the public policy of the
State of South Carolina that the State, and its political subdivisions, are only liable
for torts within the limitations of this chapter and in accordance with the principles
established herein." S.C. Code Ann. § 15-78-20(a) (2005). "The provisions of this
chapter establishing limitations on and exemptions to the liability of the State, its
political subdivisions, and employees, while acting within the scope of official
duty, must be liberally construed in favor of limiting the liability of the State."

8
Because the disposition of the duty issue is dispositive, we decline to address the
Wrights' proximate cause argument. See Futch v. McAllister Towing of
Georgetown, Inc., 335 S.C. 598, 613, 518 S.E.2d 591, 598 (1999) (explaining an
appellate court need not address remaining issues when disposition of prior issue is
dispositive).
S.C. Code Ann. § 15-78-20(f) (2005). The Tort Claims Act subsection most
applicable to the Wrights' claims regarding the choice of a flush median for the
Highway 17A Widening Project states, in pertinent part:

The governmental entity is not liable for a loss resulting
from:

(15) absence, condition, or malfunction of any sign,
signal, warning device, illumination device, guardrail, or
median barrier 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, 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 . . . .

S.C. Code Ann. § 15-78-60(15) (2005).

The Wrights presented SCDOT's 2008 ARMS manual as an exhibit at Colvin's
deposition in seeking to establish SCDOT erred in designing and implementing a
two-way left turn lane instead of a raised, non-traversable median. The Wrights'
counsel asked:

Q: Is it true that nontraversable medians have the effect
of a 35 percent reduction in traffic collisions?

A: Yes. I mean, Page on—on—Table 1.1, a continuous
two-way left turn lane, TWLTL is our engineering term,
has 35 percent reduction in total crashes, as a well as a
 nontraversable median. Both showed 35 percent
reduction in total crashes.

Q: All right. So nontraversable medians, those would
have the effect of a 35 percent reduction in traffic
collisions?

A: Correct.

Q: Okay. And so the absence of a nontraversable would
increase traffic collisions by 35 percent?

A: That is not what this table states. This table—this
table states that continuous two-way left turn lane, which
is what we have—

Q: Okay.

A: —has—the effects on that has a 35 percent reduction
in total crashes, 30 percent decrease in delay, and a 30
percent increase in capacity. The same increases and
decreases as a nontraversable median as noted in this
table.

Following this discussion, the Wrights questioned Colvin about statistics for
accidents involving left-turn collisions and the various options SCDOT might
consider in restricting left turn access from a highway into driveways and
businesses. These options could include medians, guardrails, signs, and road
spikes. In concluding this line of questioning, the Wrights asked:

Q: Okay. And there was nothing that prohibited
[SCDOT] from incorporating their raised median plans
from the interchange improvement project. Nothing
prohibited the DOT from going with the raised median
plan, did it?

A: It would have been outside of the Highway Design
Manual guidelines regarding this section of roadway and
where it stood—excuse me.
 Q: Um-hum.

A: —and how this urban section of roadway with a
design speed less than 45 miles an hour, it would have
been in conflict with our Highway Design Manual.

Based on the evidence in the record, we agree with the circuit court that SCDOT is
entitled to design immunity under the Tort Claims Act with respect to its decision
to keep a two-way left turn lane at this location on Highway 17A when completing
the Widening Project.

"[A]lthough SCDOT has design immunity, such immunity does not extend to
maintenance issues after the DOT has notice of a hazardous condition." Giannini
v. S.C. Dep't of Transp., 378 S.C. 573, 580, 664 S.E.2d 450, 454 (2008).
However, no evidence in this case suggests SCDOT had constructive notice of a
hazardous condition at the intersection prior to the Wrights' accident. 9 Tragically,
SCDOT became aware of the high rate of collisions along this busy stretch of
Highway 17A after the Wrights' 2012 accident. SCDOT annually collects collision
data through its access to the South Carolina Public Safety database—which shows
the GPS location of traffic accidents—and SCDOT conducts annual safety
analyses at those intersections with the highest accident rates as reported by
SCDOT's traffic safety office. Colvin emphasized that collision rate triggers
SCDOT's investigation into a location—not merely the number of accidents.
Determining the collision rate in an area is a function of the total number of
accidents and the respective annual traffic volume for the location.

In 2013, SCDOT conducted an accident analysis for the area of Highway 17A
where the Pilot travel center is located because this was an intersection with one of
the highest accident rates that particular year. There is no evidence in the record to
suggest SCDOT knew or should have known of a high collision rate or otherwise
potentially hazardous condition at the intersection prior to 2013.10 Thus, the
Wrights are unable to prevail on their theory that SCDOT was negligent in failing
to investigate and correct conditions at the intersection prior to their accident.

9
At oral argument, the Wrights agreed constructive, not actual, notice is the theory
upon which they base their claims.
10
SCDOT took corrective action on Highway 17A following its 2013 accident
analysis in the area.
In Giannini, two plaintiffs were injured and one died after being struck by a
hydroplaning Ford Expedition traveling north crossed a median into the
southbound lanes of I-77. 378 S.C. at 578, 664 S.E.2d at 452. The plaintiffs
alleged median barriers could have prevented the accident and SCDOT negligently
failed to install the barriers in the area of the interstate where the accident occurred.
Id. SCDOT claimed immunity under the Tort Claims Act and moved for a directed
verdict, which the circuit court denied. Id. at 578, 664 S.E.2d at 452–53.
Following a verdict for the plaintiffs, post-trial motions, and SCDOT's appeal, the
supreme court found SCDOT had notice of the existing hazard on I-77 because
there had been several crossover accidents within two miles of the Giannini
accident, two people had died, and local media covered these accidents. Id. Thus,
the circuit court properly denied SCDOT's directed verdict and JNOV motions on
the issue of whether SCDOT breached a duty to the plaintiffs by failing to install
median barriers on that stretch of I-77 after it received notice of crossover
accidents in the area. Id. at 581, 664 S.E.2d at 454.

Prior to Giannini, the supreme court addressed section 15-78-60(15) in Wooten ex
rel. Wooten v. South Carolina Department of Transportation, 333 S.C. 464, 468,
511 S.E.2d 355, 357 (1999). There, a twelve-year-old girl was injured when she
was struck by a vehicle while crossing an intersection. Id. at 466, 511 S.E.2d at
356. The girl and her mother filed an action alleging SCDOT was negligent in
failing to set traffic lights with sufficient time for a pedestrian to cross the
intersection, failing to provide walk signals, and failing to warn pedestrians the
intersection was hazardous. Id. at 466–67, 511 S.E.2d at 356–57. On appeal, this
court held SCDOT was no longer immune from liability once it had notice that an
intersection was hazardous. Id. The supreme court affirmed as modified, adopting
the circuit court's reasoning that the immunity provision addressing signs and
signals applied to the case, as opposed to the broader design immunity provision.
Id. Thus, while the design immunity language of exception (15) was inapplicable
in Wooten, the traffic signal portion of the exception providing discretionary
immunity controlled.

The Tort Claims Acts further declares governmental entities are not liable for "the
exercise of discretion or judgment by the governmental entity or employee or the
performance or failure to perform any act or service which is in the discretion or
judgment of the governmental entity or employee." S.C. Code Ann. § 15-78-60(5)
(2005). "To establish discretionary immunity, the governmental entity must prove
that the governmental employees, faced with alternatives, actually weighed
competing considerations and made a conscious choice." Pike, 343 S.C. at 230,
540 S.E.2d at 90. "The governmental entity must show that in weighing the
competing considerations and alternatives, it utilized accepted professional
standards appropriate to resolve the issue before them." Id. (quoting Foster v. S.C.
Dep't of Highways & Pub. Transp., 306 S.C. 519, 525, 413 S.E.2d 31, 35 (1992)).

Evidence in the record establishes SCDOT employees "weighed competing
considerations and made a conscious choice" in granting the encroachment permit
for the Pilot travel center. Colvin explained the ARMS manual provides a set of
guidelines to be followed but also allows for exceptions to these guidelines. While
he acknowledged one of Pilot's driveways was within the functional area of the
intersection, which is generally "frowned upon" by the guidelines of the ARMS
manual, he explained that in determining driveway locations, SCDOT considers a
variety of factors.11

Robert Clark, District 6 Engineering Administrator for SCDOT, testified the
ARMS manual is one of several resources SCDOT engineers use in considering an
encroachment permit for highway access. SCDOT reviews traffic load at the
particular location, including the location of any traffic backups, the lanes needed,
and the turning maneuvers available at the intersection. Other factors reviewed
include the environment of the intersection−such as speed, traffic signal control,
and sight distance—considered in conjunction with the encroachment permit
application. SCDOT then uses "engineering judgment to say, okay, this looks like
this is in substantial conformity with—with what our rules are."

Clark further noted the distances in the ARMS manual are suggested guidelines
because "you have to look at the site that you've got and what the—what the traffic
is doing at the site, how it's circulating on the site, and bring all those factors
together to make that determination." He admitted that allowing Pilot to have three
driveways for its degree of frontage did not fall within the general guidelines of the
ARMS manual but explained that for a particular business:

11
Colvin defined the functional area of an intersection as "basically the turn lanes
coming in and out of that intersection and the−the perception of that driver to be
able to make those allowable turning movements in and out of that, in and out of
that intersection." He testified that limiting or eliminating driveways within the
functional area of an intersection is decided on a case-by-case basis. Moreover,
certain exceptions to the ARMS manual applied to this location due to the
driveways already in place prior to the Widening Project and the replacement of
such access points.
 Again, it depends on internal circulation as to what you
want to do. You may have a one-way pair. Or, if you've
got trucks, you don't want trucks and automobiles to mix.
So you take that and then you look at site plan and look
at what's being used on the site to make an engineering
judgment as to what is appropriate.

Based on the foregoing, we find the evidence establishes SCDOT weighed the
competing considerations applicable to both the use of the travel center site and
this area of Highway 17A when granting the encroachment permit for the
requested driveways. These considerations included the pertinent provisions of
and exceptions to the guidelines set forth in the ARMS manual, as well as other
engineering standards, traffic loads, and access needs of the site. 12 Therefore, the
circuit court properly found the Wrights' claims against SCDOT regarding the
encroachment permit were barred by the applicable provisions of the South
Carolina Tort Claims Act.

Conclusion

12
The affidavits of the Wrights' expert engineering witnesses do not raise the
inferences necessary to achieve a different result. Both affidavits address industry
standards Pilot allegedly ignored; they do not address the obligations and
competing considerations SCDOT must address when providing private property
owners access to a public roadway. For example, the affidavit of municipal and
highway associate engineer Richard M. Balgowan speaks to what a "reasonably
prudent company should do" and is at times inconsistent with our supreme court's
holding in Skinner, supra, in stating "Pilot could have contacted SCDOT to
implement a means to curtail the artificial condition and construct a safer form of
ingress and egress to the facility" which disallowed left-hand turns. In referencing
the encroachment permit request and categorizing the location of the driveways as
an "artificial condition," Balgowan states in his opinion, "Pilot ignored industry
standards and prioritized its own revenue over the safety of its customers and the
general public." We find these statements regarding Pilot's actions and what it
knew, should have known, or should have reported to SCDOT insufficient to
overcome the Legislature's grant of immunity in the exceptions to governmental
liability set forth in the plain language of the Tort Claims Act. See e.g., S.C. Code
Ann. § 15-78-60 (5), (15).
The circuit court's orders granting summary judgment are

AFFIRMED.

THOMAS, J., and HUFF, A.J., concur.