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Steinke v. South Carolina Department of Labor9/7/1999
rotect public from secret government activity and did not create any special or private duty to individuals); Wells v. City of Lynchburg, supra (holding plaintiff could not sue city for failing to maintain fire hydrants because it was barred by a provision of the Tort Claims Act and city owed duty only to public generally); Summers v. Harrison Constr., 298 S.C. 451, 381 S.E.2d 493 (Ct. App.1989) (holding that statute requiring county planning department to refuse to issue building permits to unlicensed residential home builders created no special duty, such that department could be held liable for damages on the ground it negligently issued permit to builder); Rayfield v. South Carolina Dep't of Corrections, 297 S.C. 95, 374 S.E.2d 910 (Ct. App. 1988) (holding that statutes' assigning responsibility for control of departments providing for keeping of records on prisoners created duty owed by prison and parole officials to public generally, not a special duty owed to victims murdered by recently paroled prisoner in random act of violence).
We hold that the trial Judge correctly ruled respondents have a private cause of action because the six-factor test from Jensen is met in this case.
First, an essential purpose of the Amusement Rides Safety Code is to protect against a particular kind of harm, i.e., harm caused by poorly designed, constructed, or maintained amusement rides. "The purpose of this chapter is to guard against personal injuries in the ... use of amusement devices ... to persons employed at or attending ... 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.... It is the intent of this chapter that amusement devices must be designed, constructed, assembled or disassembled, maintained, and operated so as to prevent injuries." S.C. Code Ann. § 41-18-20 (Supp. 1998).
The Dissent, focusing narrowly upon the language regarding financial recovery against the owner and the necessity of liability insurance, asserts the Legislature intended to prohibit recovery against Department. We certainly agree that recovery against the owner is an important component of the Act, but it is not the sole reason for its existence. As we explain further below, a reading of the entire Act reveals the Legislature imposed numerous specific and crucial duties upon Department in order to ensure the safety of park visitors and workers.
Second, the Act directly imposes on Department a duty to guard against or not cause harm to amusement park visitors and workers. "No amusement device may be operated in the State without a permit issued" by an appropriate Department official. S.C. Code Ann. § 41-18-50 (Supp. 1998). Department must inspect an amusement device before issuing a permit. S.C. Code Ann. § 41-18-70 (Supp. 1998). Department must re-inspect an amusement device after the owner notifies it of a substantial modification to the device. S.C. Code Ann. § 41-18-80(C) (Supp. 1998). Department's director and his designees are "charged with the affirmative duty of administering and enforcing" the Act. S.C. Code Ann. § 41-18-130 (Supp. 1998). Furthermore, the Act, when read in its entirety, implicitly imposes upon Department an affirmative duty to investigate promptly after receiving credible reports of suspected hazards. See Adams v. Texfi Industries, 320 S.C. 213,464 S.E.2d 109 (1995) (in construing a statute, the reviewing court looks to its language as a whole in light of its manifest purpose).
Third, the class of persons the Act intends to protect was identifiable before the fact of the injury. To meet this factor, the class must be readily identifiable in that it is distinguishabl
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