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Steinke v. South Carolina Department of Labor9/7/1999
ed. S.C. Code Ann. § 41-18-20 (Supp. 1998) (emphasis added). In furtherance of this purpose, S.C. Code Ann. § 41-18-90 (Supp. 1998) requires the owner or lessee of an amusement device to have liability insurance. These provisions evidence no intent to make Department itself an insurer of the safety of these devices.
In Conclusion, I would reverse the denial of Department's motion for judgment notwithstanding the verdict on the ground respondents have no private cause of action under the South Carolina Amusement Rides Safety Code.
Further, even if I were to concur in the result reached by the majority in this case, I cannot agree with its analysis of the inspection powers exception discussed in Part 2. The majority concludes under the Tort Claims Act that where two exceptions to liability may apply, if one allows for liability in cases of gross negligence, that same standard of liability must be read into any other applicable exception as well. I completely disagree with this analysis.
First, I note there is no need to reach this sweeping Conclusion here since the trial Judge properly instructed the language of § 15-78-60(13), which contains the inspection powers exception, and did not add a gross negligence standard to it as Department complains.
Moreover, there is no reason to conclude that all applicable exceptions to liability must be read together. The majority overstates the significance of the Court of Appeals' decisions in Duncan, Etheredge, and Jackson. A careful reading indicates these cases simply illustrate our recently stated rule that a specific exception applies over a more general one. Wooten v. South Carolina Dept. of Transportation, 333 S.C. 464, 511 S.E.2d 355 (1999). In a situation such as this, however, where more than one equally specific exception may apply, it is for the jury to determine which exception, if any, applies under the facts of the case.
For instance, assuming a duty in this case, the jury could find no liability from Department's failure to inspect under the inspection exception as properly charged by the trial Judge. On the other hand, under the licensing exception, the jury could find Department liable because it was grossly negligent in failing to revoke the permit for the crawlevator when it had reason to believe the device was unsafe.
In light of the majority's concession that we must liberally construe the Tort Claims Act in favor of limiting government liability, it is inconsistent to conclude that a lesser degree of immunity must prevail when more than one exception to liability may apply. To the contrary, under this rule of construction, one would logically conclude such a merging of exceptions would incorporate the greater immunity, not the lesser. In my view, such a merging is unnecessary. There is no inconsistency in allowing the jury to consider the specific exceptions individually.
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