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Steinke v. South Carolina Department of Labor9/7/1999
e from the general public. See Jensen, supra.
The Act's purpose is to prevent injuries to visitors and employees at amusement parks and fairs. S.C. Code Ann. § 41-18-20. Those visitors and employees usually would not constitute a readily identifiable class that is distinguishable from the general public. In this case, however, Department had received several credible reports indicating a particular amusement ride posed a significant safety threat. Members of the larger class of visitors and employees the Act is meant to protect - the riders and workers at a specific, reportedly hazardous amusement ride - were readily identifiable before the fact of the injury . Our reasoning is consistent with Jensen. supra, in which we found that a member of the larger class of persons the child abuse statutes were intended to protect - in that case, a single reported victim of abuse - was readily identifiable before the fact of the injury. It is not always necessary, as Department and the Dissent contend, that members of the protected class actually be known by name to the governmental entity before the fact of an injury.
Fourth, the plaintiffs are within the protected class. Zachary was a park visitor; Michael was employed by Beach Bungee, the owner of an amusement device licensed by Department.
Fifth, Department knows or has reason to know the likelihood of harm to members of the class if it fails to do its duty. Department officials testified the winch and cable system was dangerous, and acknowledged a failure could result in multiple deaths. They conceded the system constituted a substantial modification of the licensed crawlevator. Department officials further testified they would have taken immediate steps to shut it down if they had known about it.
Sixth, Department has sufficient authority to act in the circumstances. Department may revoke a permit after determining an amusement device is, among other things, "being operated without the inspections required" or "being operated with a mechanical, electrical, structural, design, or other defect which presents an excessive risk of injury to passengers, bystanders, operators, or attendants." S.C. Code Ann. § 41-18 60(D)(1) and (3) (Supp. 1998). Department officials may enter unannounced and inspect amusement devices at reasonable times and in a reasonable manner. They also have the right to question any owner, manager, or employee and to inspect, investigate, photograph, and sample all pertinent areas, and to examine and copy all pertinent documents and records. S.C. Code Ann. § 41-18 80(E) (Supp. 1998). Department may impose civil penalties when an owner fails to comply with the act. S.C. Code Ann. § 41-18-150 (Supp. 1998).
Department's reliance upon Adkins v. Varn, 312 S.C. 188, 439 S.E.2d 822 (1993), is misplaced. In that case, a thirteen-year-old girl was fatally injured after vicious dogs chased her into a public street where she was struck and killed by an automobile. Several local residents had complained about the dogs to county animal control personnel. We affirmed the trial court's ruling that the county animal control ordinance did not create a special duty of care towards individual members of the general public. We found no legislative intent to create a special duty because the terms of the ordinance were general and did not identify a particular class of victims or a particular kind of harm. In contrast, the analysis of those factors in this case, as well as the remainder of the six-factor test, reveals the legislative intent to create a special duty.
2. EXCEPTIONS TO WAIVER OF IMMUNITY
Respondents alleged that Department, after receiving reports of substantial modifications
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