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JENSEN v. ANDERSON COUNTY DSS3/4/1991
shall be done or the course pursued. . . . In a tort suit
against a public official whose duties are discretionary, it
must be shown that in the performance or non-performance
of those duties the public official was guilty of corruption,
or bad faith, or influenced by malicious motives,
before a recovery can be had.
More recently, the Court of Appeals explained that a government agency's immunity is contingent on proof that the agency, faced with alternatives, actually weighed competing considerations and made a conscious decision to act or not to act. Niver v. South Carolina Department of Highways & Public Transportation, ___ S.C. ___, 395 S.E.2d 728 (Ct. App. 1990). The issue in Niver was whether the Highway Department was liable for failing to install striping or signs on a particular portion of a road. Even though two statutes allowed the Department to exercise discretion regarding the placement of markings, the Court of Appeals found that this by itself did not constitute evidence that the Department actually made a decision and exercised its discretion.
In the case at bar, the Court of Appeals made the following findings regarding the character of the duties owed by DSS. The duty to conduct a "thorough" investigation before a decision is taken to close a file is a ministerial duty mandated by the statute. The manner in which the investigation is conducted is one of discretion, unless the investigation is so incomplete that it could not be found to be "thorough." Ordinarily, the decision to classify a report of abuse as "unfounded" and close the file is a discretionary act because it involves the application of judgment to the particular facts. If, however, the file was closed because the investigation was incomplete and there were not enough facts upon which to make an informed decision, the social workers would not be entitled to official immunity.
We agree with these findings and with the conclusion that sufficient evidence was not presented upon which a decision may be made. Therefore, on remand it must be determined whether a "thorough" investigation was made and whether the decision to close the file was an exercise of discretion. DSS must present evidence that competing choices were considered and that they made a conscious decision based upon the facts to close the file.
For the reasons discussed above, the Court of Appeals decision is AFFIRMED. Accordingly, the summary judgment in favor of Anderson County Department of Social Services, and in favor of defendants Straup and Jenkins is reversed and the case is REMANDED to the circuit court for further proceedings
GREGORY, C.J., and HARWELL, CHANDLER, and FINNEY, JJ., concur.
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