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Steinke v. South Carolina Department of Labor9/7/1999
, was grossly negligent in failing to inspect or investigate the amusement ride and in failing to suspend or revoke the crawlevator license. Department contends the trial Judge erred in rejecting its directed verdict and post-trial motions in which it asserted immunity from suit under several exceptions to the waiver of sovereign immunity contained in S.C. Code Ann. § 15-78-60 (Supp. 1998). We disagree.
The South Carolina Tort Claims Act, which provides the exclusive remedy in tort against Department, is a limited waiver of governmental immunity. Moore v. Florence School Dist. No. 1, 314 S.C. 335, 444 S.E.2d 498 (1994); S.C. Code Ann. § 15-78-20(a) (Supp.1998). The Act provides that, subject to limitation, a governmental entity is "liable for torts in the same manner and to the same extent as a private individual under like circumstances." Id.; S.C. Code Ann. § 15-78-40 (Supp-1993).
The burden of establishing a limitation upon liability or an exception to the waiver of immunity under the Tort Claims Act is upon the governmental entity asserting it as an affirmative defense. Strange v. South Carolina Dep't of Highways and Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994). Provisions establishing limitations upon and exemptions from liability of a governmental entity must be liberally construed in favor of limiting liability. S.C. Code Ann. § 15-78-20(f) (Supp. 1998); Baker v. Sanders, 301 S.C. 170, 391 S.E.2d 229 (1990).
A. THE LICENSING POWERS EXCEPTION
Department contends it is immune from suit under Section 15-78 60(12). Under that section, a governmental entity is not liable for a loss resulting from "licensing powers or functions, including, but not limited to, the issuance, denial, suspension, renewal, or revocation of or failure to issue, deny, suspend, renew, or revoke any permit, license, certificate, approval, registration, order, or similar authority except when the power or function is exercised in a grossly negligent manner." The trial Judge instructed the jury on this exception.
Department asserts the exception applies only to a licensee or potential licensee, not to a third party allegedly injured by the government's licensing decision. Nothing in the statutory language of the provision limits it as Department suggests. A potential licensee, licensee, or an injured third party may seek relief under the exception. See Parsons v. Uniroyal-Goodrich Tire Corp., 313 S.C. 394, 438 S.E.2d 238 (1993) (in construing statute, words must be given their plain and ordinary meaning without resorting to subtle or forced construction to limit or expand statute's operation).
Department also argues it could not be grossly negligent because it did not have any authority to license a bungee jumping operation in 1993. See S.C. Code Ann. §§ 52-19-10 to -380 (Supp. 1998) (statutes regulating bungee jumping effective in July 1994). We conclude the trial Judge correctly reasoned that respondents' action pertained to modifications of the crawlevator used to carry bungee jumpers and spectators - which Department had licensed as an amusement device - not to the actual jumps that were made.
Department further argues there was no license for Department to revoke because the licensed crawlevator was not in use when the accident occurred. Accepting this argument would mean Department could avoid its duty simply by claiming it was powerless in the face of an unauthorized and unlicensed modification. That would subvert the clear purpose of the licensing exception, which is to hold the governmental entity liable when it is grossly negligent in failing to investigate whether it should suspend or revoke a license after learning of potentially dange
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