Giannini v. South Carolina Department of Transportation

Justice PLEICONES:

I respectfully dissent. In my opinion, the trial court should have granted SCDOT’s motion for directed verdict, and I would not address the other issues raised by the parties.5

I am troubled by the majority’s analysis of the Tort Claims Act’s immunity provisions applicable to SCDOT. First, the majority fails to adequately address SCDOT’s claim that it did not owe plaintiffs a duty to install median barriers. The majority instead jumps ahead to the immunity issue under the Tort Claims Act. While it is clear that SCDOT has a duty to plan, construct, maintain, and operate the state’s highways,6 I *590believe the majority opinion improperly implies that a duty may arise simply because an exception to the State’s waiver of sovereign immunity does not exist in the Tort Claims Act. Cf. Arthurs ex rel. Est. of Munn v. Aiken County, 346 S.C. 97, 105, 551 S.E.2d 579, 583 (2001) (existence of a duty, as well as other elements of negligence, must be shown before reaching immunities issue under the Tort Claims Act).

Perhaps more disconcerting is the majority opinion’s lack of any discussion of discretionary immunity. Discretionary immunity is different from design immunity, and SCDOT argues it is entitled to both. Design immunity gives SCDOT absolute immunity for liability arising from the design of highways and public ways. Wooten ex rel. Wooten v. S.C. Dept. ofTransp., 333 S.C. 464, 511 S.E.2d 355 (1999); S.C.Code Ann. § 15-78-60(15). However, design immunity is not perpetual, and once the governmental entity receives notice of a hazardous condition, it may no longer invoke design immunity as an absolute shield for liability. Id.7 Although an entity may lose design immunity, it may still be immune from liability if it exercises discretion when faced with actual or constructive knowledge of a hazardous condition.

In Wooten, this Court explicitly stated that the design immunity provision of § 15-78-60(15) did not control that case; the more specific clause providing discretionary immunity for the initial placement of traffic signals was the applicable immunity provision. Likewise, in this case, the pertinent portion of § 15-78-60(15) is the part that specifically provides discretionary immunity for the initial placement of cable median barriers. The majority appears to acknowledge this correlation, but unlike in Wooten, it does not analyze whether SCDOT’s actions after it received notice of the dangerous *591condition entitle SCDOT to discretionary immunity. I would hold that SCDOT is entitled to discretionary immunity.

Discretionary immunity is contingent on proof the government entity, faced with alternatives, actually weighed competing considerations and made a conscious choice. Further, the entity must establish, in weighing the competing considerations and alternatives, it utilized accepted professional standards appropriate to resolve the issue. Strange v. S.C. Dept, of Hwys. & Pub. Transp., 314 S.C. 427, 429, 445 S.E.2d 439, 440 (1994). The governmental entity bears the burden of establishing discretionary immunity as an affirmative defense. Niver v. S.C. Dept, of Hwys. & Pub. Transp., 302 S.C. 461, 463, 395 S.E.2d 728, 730 (Ct.App.1990). The provisions of the Tort Claims Act that establish limitations on and exemptions to the liability of the State must be liberally construed in favor of limiting the liability of the State. S.C.Code Ann. § 15-78-20(f) (Supp.2005).

There is no question that SCDOT weighed competing economic and environmental considerations, in addition to following accepted professional standards promulgated by the federal government and the American Association of State Highway and Transportation Officials (AASHTO), when it decided not to place median barriers on 1-77 when it opened in 1995. After SCDOT received notice in 1997 of several median crossover accidents in the vicinity of the accident in this case, SCDOT added diagonal yellow lines with raised reflectors to the highway shoulders that bordered the median. This was done to reduce crossover accidents by decreasing the possibility that motorists would drift into the median.

Even though the placement of these raised markers significantly decreased the number of accidents within a one-mile radius8 of this accident site, SCDOT began gathering information in 1999 concerning median widths, accident history, average daily traffic, etc., in order to prioritize and secure funding for installation of median barriers. This project was underway when this accident occurred in January 2000, and the first *592median cable barriers were installed by December 2000. The record clearly shows that SCDOT constantly weighed its options in an attempt to minimize the possibility of crossover accidents on this stretch of 1-77. Simply because there was disagreement between each side’s experts as to whether discretion was properly exercised does not preclude discretionary immunity for SCDOT. In other words, the exercise of discretion includes the right to be wrong. McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985), superseded by statute as recognized in Murphy v. Richland Mem. Hosp., 317 S.C. 560, 455 S.E.2d 688 (1995).

In my opinion, SCDOT was entitled to discretionary immunity because it is undisputed that it exercised discretion in maintaining the area of 1-77 where this accident occurred. SCDOT contemplated its alternatives pursuant to the relevant AASHTO regulations and federal standards, and it made a conscious effort to keep this interstate as safe as possible in light of its options. Accordingly, I would reverse.

TOAL, C.J., concurs.

. While there would be no need to address the remaining issues should we find SCDOT should have been granted a directed verdict, I note that I agree with the majority’s conclusions on the remaining questions except for the verdict apportionment. I would hold that the trial court erred by not apportioning the $600,000 statutory cap in proportion to the actual verdicts returned by the jury. Additionally, I believe the enrolled bill rule clearly disposes plaintiffs' bobtailing claim. Med. Socy. of S.C. v. Med. U. of S.C., 334 S.C. 270, 278, 513 S.E.2d 352, 356 (1999) (enrolled bill rule provides that an act ratified by the General Assembly, approved by the Governor, and enrolled in the office of the Secretary of State is conclusively presumed to have been properly passed and is not subject to impeachment by evidence outside the act to show it was not passed in compliance with law).

. S.C.Code Ann. § 57-1-30 (Supp.2006); Brashier v. S.C. Dept, of Transp., 327 S.C. 179, 191, 490 S.E.2d 8, 14 (1997), overruled in part on *590other grounds, I'On v. Town of Mt. Pleasant, 338 S.C. 406, 526 S.E.2d 716 (2000).

. But cf. Summer v. Carpenter, 328 S.C. 36, 43, 492 S.E.2d 55, 59 (1997) (holding "[e]ven if the Highway Department was on notice the design of the intersection was dangerous, the Highway Department was immune from suit for negligent design.”). Summer can be distinguished by the fact that the injury in Summer occurred while the intersection was still under construction, thus preserving design immunity.

. Given the specific locations involved in tracking highway accidents, it is important to note that SCDOT had tracked the accident reports for I-77, and between 1995 and 1999, no median cross-over accidents occurred within 1,500 feet of the site where this accident occurred.