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Steinke v. South Carolina Department of Labor9/7/1999
ion 15-78-60, all other applicable exceptions must be read in light of the exception containing the gross negligence standard), cert. granted on other grounds, April 8, 1999. The principles expressed in Duncan and Etheredge are drawn from Jackson v. South Carolina Dep't of Corrections, 301 S.C. 125, 390 S.E.2d 467 (Ct. App. 1989), aff d, 302 S.C. 519, 397 S.E.2d 377 (1990).
While provisions establishing limitations upon and exemptions from liability of a governmental entity must be liberally construed to limit liability, we also must presume in construing a statute that the Legislature did not intend to perform a futile thing. See Gaffney v. Mallory, 186 S.C. 337, 195 S.E. 840 (1938). We are constrained to avoid a construction that would read a provision out of a statute, and must reconcile conflicts if possible. Ballard v. Ballard, 314 S.C. 40, 443 S.E.2d 802 (1994).
We hold the inspection powers exception must be read in conjunction with the key exception at issue in this case, Section 15-78-60(12), the licensing powers exception. Department must inspect an amusement device before deciding whether to issue, suspend, or revoke a license. S.C. Code Ann. ยงยง 41-18-70 and 41-18-80. Department also has an implicit duty to investigate potentially hazardous substantial modifications when it learns of them. It would make no sense to say Department may be found grossly negligent in a licensing decision, yet allow Department to escape liability because the inspection powers exception does not contain a gross negligence standard. The logical way to read these closely related provisions when both are at issue is that a governmental entity may be liable if it is grossly negligent in licensing or inspecting a particular device or activity.
The Dissent asserts that Duncan, Etheredge, and Jackson simply stand for the proposition that a specific exception applies over a more general one. We agree the three cases generally illustrate that proposition, although none contains any language indicating that was the underlying rationale. The circuit court and the parties certainly should focus their analysis and jury instructions upon the most pertinent and specific exceptions that apply in a given case. But to unduly emphasize the distinction between "specific" and "general" exceptions ultimately could reduce defenses available to a governmental entity if the court opted to charge only the most specific exceptions. Accordingly, we conclude the better practice is to allow the government to assert all relevant exceptions, and apply the gross negligence standard to all when it is contained in one applicable exception. Our holding is faithful to the legislative intent to limit liability and allow ample defenses, while not allowing a governmental entity to eviscerate the impact of one exception by asserting another.
C. OTHER EXCEPTIONS
Department asserts it is immune pursuant to Section 15-78-60(5) (governmental entity is not liable for performing or failing to perform discretionary acts); Section 15-78-60(4) (governmental entity is not liable for adoption or enforcement, or failing to adopt or enforce, a law or regulation); and Section 15-78-60(20) (governmental entity is not liable for loss resulting from act or omission of person other than an employee, including but not limited to the criminal actions of third persons). None of these exceptions contains a gross negligence standard. The trial Judge instructed the jury on discretionary immunity, but ruled the other exceptions did not apply in this case.
To prevail under the discretionary immunity provision, the governmental entity must show that when faced with alternatives, it actually weighed competing consideratio
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