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ADKINS v. VARN12/20/1993
This appeal arises from a granting of summary judgment in favor of the county government in an action for wrongful death. We affirm.
FACTS
The facts of this appeal are not in dispute. On February 8, 1992, plaintiff's decedent, Brandy L. Adkins, a thirteen year old girl, was fatally injured while riding her bicycle around her home in Greenville County. She was chased by several vicious dogs into a public street where she was struck and killed by an automobile. Prior to this occurrence, several local residents had complained about these dogs to county animal control personnel. One witness stated that he personally called the County of Greenville at least five times immediately before the incident to complain that these dogs were roaming unrestrained and making unprovoked attacks.
Mr. Adkins alleged in his complaint for wrongful death that the County made no efforts to respond to the citizens' grievances, and as a result, the dogs were able to chase Brandy into the path of the oncoming automobile. To support this allegation, Mr. Adkins submitted the affidavits of several complaining parties.
In its answer, County denied that it negligently failed to enforce its ordinance. Additionally, County filed a motion to dismiss the complaint under S.C.Code Ann. § 15-78-60 (4) (Supp. 1992) on the grounds that the S.C. Tort Claims Act exempts it from liability for failure to enforce an ordinance. Plaintiff contended that his affidavits created an issue of fact as to whether the County was negligent in not picking up these dogs. On September 24, 1992, the trial judge issued his order granting the County's motion, finding that even if Mr. Adkins'
ISSUES
Mr. Adkins raises three issues on appeal:
1. Whether the trial court erred in construing § 15-78-60(4) as granting the County an exemption from liability for its failure to enforce the county animal control ordinance;
2. Whether the trial court erred in finding that all of the allegations in the complaint were predicated on the County's failure to enforce the county animal control ordinance; and
3. Whether the trial court erred in finding that the county animal control ordinance did not create a special duty of care towards individual members of the general public.
LAW/ANALYSIS
Statutory Construction
In the first instance, we are asked to review the trial court's granting of summary judgment to the County based on the immunity provided in S.C.Code Ann. § 15-78-60(4). Long standing as a legal doctrine, sovereign immunity historically acted to protect a governmental entity from all liability for loss in a negligence action. In McCall v. Batson, 285 S.C. 243, 329 S.E.2d 741 (1985), we abolished sovereign immunity, and as a result, the General Assembly enacted the South Carolina Torts Claim Act, codified at S.C.Code Ann. §§ 15-78-10, et seq. (Supp. 1992). Balancing the interests of the state against the interests of a tort victim, the General Assembly, in S.C.Code Ann. § 15-78-60, provided thirty-one exceptions whereby the state was exempted from liability.
Section 15-78-60(4) provides that a governmental entity is not liable for loss resulting from:
doption, enforcement or compliance with any law or
failure to adopt or enforce any law, whether valid or
invalid, including, but not limited to, any charter,
provision, ordinance, resolution, rule, regulation, or
written policies. . . . [Emphasis added.]
The provisions of this chapter establishing
the limitations on and exemptions to the
liability of the state, its political
subdivisions and employees, w
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