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Steinke v. South Carolina Department of Labor9/7/1999
levator was not attached to the track of the arch. He also saw the stabilizing cables and was "stunned" to see a lifting cable attached to the top of the cage. Ward assumed, however, that workers were using the cables to move the cage or crawlevator, which he assumed was broken, during repairs.
Ward did not walk across the highway to get a closer look or speak to the owners. He did not try to telephone the owners later. Ward drove by the site a second time August 7 without stopping. Ward still believed the ride was not operating, and reported that to Department officials in Columbia. Operators used the winch and cable system to carry only five people August 7 due to inclement weather and mechanical problems.
Ward drove by the site on his way to and from work Monday, August 9, 1993, and on his way to work Tuesday morning. He did not stop or even attempt to observe the site as he passed. The fatal accident occurred Tuesday evening.
Department officials Padgett, Butler, Cates, and Ward testified the winch and cable system was dangerous, and acknowledged a failure could result in multiple deaths. The system constituted a substantial modification of the licensed crawlevator. Padgett, Butler, and Ward testified Department officials would have taken immediate steps to shut it down if they had known about it.
STANDARD OF REVIEW
In ruling on motions for directed verdict or judgment notwithstanding the verdict, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions. The trial court must deny the motions when the evidence yields more than one inference or its inference is in doubt. This Court will reverse the trial court only when there is no evidence to support the ruling below. Creech v. South Carolina Wildlife and Marine Resources Dep't, 328 S.C. 24,491 S.E.2d 571 (1997). This Court will not disturb a trial court's decision granting or denying a new trial unless that decision is wholly unsupported by the evidence or the court's Conclusions of law have been controlled by an error of law. South Carolina Dep't of Highways and Pub. Transp. v. E.S.I. Investments, 332 S.C. 490, 505 S.E.2d 593 (1998); Craven v. Cunningham, 292 S.C. 441, 357 S.E.2d 23 (1987).
ISSUES
1. Did the trial Judge err in ruling that Department owes a special or private duty to riders of a licensed amusement ride, such that respondents have a private cause of action against Department?
2. Is Department immune from suit under various exceptions to the waiver of immunity contained in the Tort Claims Act?
3. Did the trial Judge err in rejecting Department's argument that Michael Nash assumed the risk of his injuries and in giving an erroneous jury charge on assumption of the risk?
4. Did the trial Judge err in refusing to reduce the verdict in accordance with the Legislature's 199 7 re-enactment of monetary limits in suits brought under the Tort Claims Act?
DISCUSSION
1. SPECIAL OR PRIVATE DUTY
Department argues the trial Judge erred in rejecting its motions for a directed verdict and judgment notwithstanding the verdict, in which it asserted the Amusement Rides Safety Code gives rise only to a public duty. No special or private duty exception to the public duty rule exists in this case; therefore, Respondents had no private cause of action, Department contends. We disagree.
In a negligence action, a plaintiff must show that the (1) defendant owes a duty of care to the plaintiff, (2) defendant breached the duty by a negligent act or omission, (3) defendant's
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