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Steinke v. South Carolina Department of Labor9/7/1999
ns and made a conscious decision to act or not to act, and that it used accepted professional standards appropriate to resolve the issue before it. Strange v. South Carolina Dep't of Highways & Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994); Niver v. South Carolina Dep't of Highways & Pub. Transp., 302 S.C. 461, 395 S.E.2d 728 (Ct. App.1990). The record contains scant evidence Department officials exercised their discretion. Regardless, the jury considered the provision and rejected it.
An appellate court will not reverse the trial court's decision to strike an insufficient or irrelevant allegation or defense unless the trial court abuses its discretion. Mayes v. Paxton, 313 S.C. 109, 115, 437 S.E.2d 66, 70 (1993); Williams v. South Carolina Nat'l Bank, 284 S.C. 346, 326 S.E.2d 187 (Ct. App. 1985). An abuse of discretion arises where the trial court was controlled by an error of law or where its order is based on factual Conclusions that are without evidentiary support. Tri-County Ice and Fuel Co. v. Palmetto Ice Co., 303 S.C. 237, 242, 399 S.E.2d 779, 782 (1990). We conclude the trial Judge did not abuse his discretion because the enforcement of law and third party exceptions were not directly at issue in this case.
Furthermore, the same reasoning explained above applies to all three exceptions. It would make no sense to say Department may be found grossly negligent in a licensing decision, yet allow Department to escape liability under one of these exceptions. See Duncan v. Hampton County School Dist. #2, supra; Etheredge v. Richland School Di~t. 1, supra; Jackson v. South Carolina Dep't of Corrections, supra.
In sum, we recognize the trial court often faces Tort Claims Act cases in which at least one of the asserted exceptions contains the gross negligence standard while other asserted exceptions do not. We hold that when an exception containing the gross negligence standard applies, that same standard will be read into any other applicable exception. Otherwise, portions of the Act would be a nullity, which the Legislature could not have intended. In addition, we will overturn the trial court's refusal to charge irrelevant exceptions only for an abuse of discretion.
3. ASSUMPTION OF THE RISK INSTRUCTION
Department argues the trial Judge erred in rejecting its motion for a judgment as a matter of law in the case of Michael Nash, the bungee jump master, after the jury determined Nash assumed the risk of his injuries. Department also asserts the Judge erred in modifying the assumption of the risk charge in light of a recent Court of Appeals opinion that was not law when Nash's cause of action accrued.
The trial Judge instructed the jury on the accepted definition of the affirmative defense of assumption of the risk, i.e., that a plaintiff s conduct may constitute implied assumption of the risk where it is shown that he understood and appreciated a known danger created by the defendant, and then freely and voluntarily exposed himself to it. Mayes v. Paxton, 313 S.C. at 116,437 S.E.2d at 70. The Judge also told the jury, over Department's objection, that " ven if you find that [Nash] assumed the risk in this case, [Nash] may still recover as long as his assumption of the risk was not greater than the gross negligence of the defendant." The jury had to balance any assumption of the risk by Nash with any gross negligence by Department.
The Judge drew the balancing instruction from Davenport v. Cotton Hope Plantation Horizontal Property Regime, 325 S.C. 507, 482 S.E.2d 569 (Ct. App. 1997) (deciding for first time in South Carolina that implied assumption of risk is one facet of comparative negligence, not a complete defen
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