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Steinke v. South Carolina Department of Labor9/7/1999
es Safety Code. We affirm the Judge's rulings on the exceptions to the waiver of immunity under the Tort Claims Act, and hold that when an applicable exception contains the gross negligence standard, then any other relevant exception must be read in light of that standard. We reverse Nash's judgment and grant the statutory beneficiaries a new trial because the Judge erroneously instructed the jury on the revised view of assumption of the risk. Finally, we hold that neither respondent's recovery is limited by the Tort Claims Act because this case was filed before the Legislature reinstated the statutory caps. We find Department's remaining arguments to be without merit.
AFFIRMED IN PART; REVERSED IN PART.
TOAL, A.C.J., and BURNETT, JJ., concur. MOORE, A.J., Dissenting in a separate opinion. Acting Associate Justice George T. Gregory, Jr., not participating.
MOORE, A.J.:
Because I disagree with the majority's holding that respondents have a private cause of action under the South Carolina Amusement Rides Safety Code, I respectfully Dissent.
Under the public duty rule, public officials are generally not liable to individuals for negligence in the discharge of their public duties unless there exists a "special duty" to the plaintiff as an individual rather than simply to the public at large. Jensen v. Anderson County Dep't of Soc. Serv., 304 S.C. 195, 403 S.E.2d 615 (1991). Where a duty is owed to the public only, a public official is not liable to an individual who may have been incidentally injured by the failure to perform it. Id.; Parker v. Brown, 195 S.C. 35, 10 S.E.2d 625 (1940).
As discussed in the majority opinion, we apply a six-factor test to determine whether a "special duty" exists. One of these factors is that "the class of persons the statute intends to protect is identifiable before the fact." Jensen, 403 S.E.2d at 617 (emphasis added). There must be a "special relationship" that exists between the public official and the plaintiff. Id.
The facts in Jensen are especially instructive since it is the only case finding a special duty. In that case, we found a special relationship existed between the Department of Social Services and a child who was the reported victim of child abuse. After the report, no investigation was made and the child died from subsequent abuse. We found a special relationship was established when the child abuse was initially reported and this special relationship therefore existed before the facts giving rise to the cause of action in that case, i.e. the child's death from the subsequent abuse.
In this case, there is no evidence of any special relationship between Department and respondents to distinguish respondents from members of the general public. The South Carolina Amusement Safety Code applies to protect all members of the general public. Respondents were not identifiable members of a particular class before the facts giving rise to this cause of action.
Further, as stated in Jensen, the six-factor, test for a special duty is a means of determining legislative intent. 403 S.E.2d at 618. Accordingly, we cannot overlook the legislative intent expressed in the statute itself. The South Carolina Amusement Rides Safety Code expressly provides its legislative intent is to guard against personal injuries in the assembly, disassembly, and use of amusement devices at carnivals, fairs, and amusement parks to persons employed at or attending carnivals, fairs, and amusement parks and, in the event of a personal injury, to ensure to the injured party the possibility of financial recovery as against the owner of the carnival, fair, or amusement park where the injury occurr
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