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STRANGE v. S.C. DEPT. HIGHWAYS & PUBLIC TRANS.6/6/1994
In this personal injury action, Appellant South Carolina Department of Highways and Public Transportation (Highway Department) contends the trial judge committed reversible error on several grounds. We disagree and affirm.
FACTS
Respondents brought an action against the Highway Department under the Tort Claims Act alleging that the Highway Department caused their car accident because it failed to properly maintain the shoulders along Dreher Island Road. The accident occurred on a rainy night shortly after the road had been resurfaced. The road was unpainted and covered with dark asphalt. The driver, Respondent Hudson, went off
The first trial in this matter ended in a jury verdict for Respondents. The Highway Department appealed and this Court reversed the jury's verdict and remanded for retrial. Strange v. South Carolina Department of Highways & Public Transportation, 307 S.C. 161, 414 S.E.2d 138 (1992). The retrial also resulted in a jury verdict for Respondents. This appeal follows.
DISCUSSION
Appellant Highway Department asserts the trial court erred by denying its directed verdict and judgment notwithstanding the verdict (JNOV) motions because the judge should have found as a matter of law that the acts of striping the side lines, building up the shoulders after resurfacing and warning of low shoulders are all discretionary acts which are protected under the South Carolina Tort Claims Act. S.C. Code Ann. ยง 15-78-60 (Supp. 1993). We disagree.
The following cases are dispositive in addressing the issue of discretionary immunity. Foster v. S.C. Highways and Public Transportation, 306 S.C. 519, 413 S.E.2d 31 (1992) and Niver v. S.C. Department of Highways & Public Transportation, 302 S.C. 461, 395 S.E.2d 728 (Ct.App. 1990). Discretionary immunity is contingent on proof that the Highway Department, faced with alternatives, actually weighed competing considerations and made a conscious choice. Niver, supra. The governmental entity must show that in weighing the competing considerations and alternatives, it utilized accepted professional standards appropriate to resolve the issue before it. Foster, supra. There was no evidence in this case that the Highway Department weighed competing considerations and exercised accepted professional standards as required by Foster.
In ruling on motions for directed verdict and JNOV, the trial court is required to view the evidence and the inferences that reasonably can be drawn therefrom in the light most favorable to the party opposing the motions and to deny the motions where either the evidence yields more than one inference
Next, the Highway Department argues that the trial court incorrectly placed the burden of establishing discretionary immunity as an affirmative defense on the Highway Department. We disagree. The burden of establishing a limitation upon liability or an exception to the waiver of immunity is upon the governmental entity asserting it as an affirmative defense. Foster, supra; Niver, supra. Accordingly, the trial court did not err in placing the burden of proof on the Highway Department.
The Highway Department further contends the trial court erred by ruling that a stipulation agreed to by the parties during the first trial did not bind Respondents at the second trial. The parties agreed at the first trial to stipulate that the Highway Department had actual notice that certain portions of Dreher Island Road had low shoulders. Respondents also agreed at that trial not to present any testimony about other accidents occurring on the same road.
During the first attempt to retry the case, the trial judge issued a consent order prior to gra
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