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Steinke v. South Carolina Department of Labor9/7/1999
rous modifications to the subject of the license. See Adams v. Texfi Industries, supra (in construing a statute, the reviewing court looks to its language as a whole in light of its manifest purpose); Resolution Trust Corp. v. Eagle Lake and Golf Condominiums, 310 S.C. 4732 427 S.E.2d 646 (1993) (purpose of the statute and public policy are aids in construction of a statute).
Finally, Department argues that respondents Steinke are barred by the doctrines of collateral estoppel and judicial estoppel from asserting the winch and cable system was licensed by Department because they asserted it was not licensed in a federal lawsuit against Beach Bungee's owners. See Steinke v. Beach Bungee, Inc., 105 F.3d 192 (4th Cir. 1997) (discussing verdict form in which the jury determined by special interrogatory that the winch and cable system was operated without a license from Department).
The Steinke s' position in the two cases is consistent. In the federal lawsuit, the Steinkes asserted and the jury found that the winch and cable system was not licensed. In this case, the Steinkes asserted the crawlevator was licensed, and Department was grossly negligent in failing to suspend or revoke that license after learning the crawlevator may have been replaced by the unlicensed winch and cable system.
We have defined gross negligence as "the failure to exercise slight care. it We also have defined it as "the intentional, conscious failure to do something which it is incumbent upon one to do or the doing of a thing intentionally that one ought not to do." Gross negligence "is a relative term, and means the absence of care that is necessary under the circumstances." Hollins v. Richland County School Dist. One, 310 S.C. 486,490,427 S.E.2d 654, 656 (1993) (citations omitted). Under any of those definitions, the trial Judge properly denied Department's directed verdict and post-trial motions when the facts are viewed in the light most favorable to respondents. The record shows Department received three credible reports of a suspected problem or hazard at a licensed amusement device, yet Department gave the matter no more than a cursory glance.
B. THE INSPECTION POWERS EXCEPTION
Department asserts that, regardless of the licensing powers exception, it is immune pursuant to Section 15-78-60(13). Under that section, a governmental entity is not liable for a loss resulting from "regulatory inspection powers or functions, including failure to make an inspection, or making an inadequate or negligent inspection, of any property to determine whether the property complies or violates any law, regulation, code, or ordinance or contains a hazard to health and safety." The trial Judge instructed the jury on this exception, which does not contain a gross negligence standard.
This Court and the Court of Appeals previously have recognized that the correct approach, when a governmental entity asserts various exceptions to the waiver of immunity, is to read exceptions that do not contain the gross negligence . standard in light of exceptions that do contain the standard. Duncan v. Hampton County School Dist. #2, Op. No. 2995 (S.C. Ct. App. filed May 10, 1999) (Shearouse Adv. Sh. No. 17 at 61) (reading discretionary immunity exception in light of exception to immunity in which governmental entity exercises its duty in a grossly negligent manner, such that discretionary immunity will not protect the government if it exercises that discretion in a grossly negligent manner); Etheredge v. Richland School Dist. 1, 330 S.C. 447, 463; 499 S.E.2d 238) 246 (Ct. App. 1998) (when an action is brought alleging gross negligence by a governmental entity pursuant to an exception contained in Sect
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