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BAKER v. SANDERS3/12/1990
Heard Jan. 10, 1990.
Decided March 12, 1990.
This case involves the issue of whether the South Carolina Tort Claims Act precludes a survival action against the State for a death which resulted from its alleged negligent acts.
I. FACTS
Respondent Coastal Rapid Public Transportation Authority (Authority) is a governmental entity providing low cost transportation service in and around coastal South Carolina. On November 27, 1987, Layton Baker was involved in an accident while a passenger in a vehicle owned by the Authority and driven by Doretha Livingston Thomas. The accident was caused when the vehicle Layton Baker was traveling in collided with a tractor-trailer truck owned by Marion Trading Company and operated by Frank Sanders. Layton Baker died on December 10, 1978 as a result of injuries received in this accident.
Appellant Edgar R. Baker originally filed survival and wrongful death actions on behalf of his brother, Layton Baker, against Sanders, Marion Trading Company, Thomas, and the Authority. Thomas however, was later dropped from the actions. On February 25, 1989, the wrongful death action was tried separately and resulted in a verdict solely against the Authority. Thereafter, the Authority filed a motion for summary judgment as to the survival action or in the alternative to dismiss the survival action in its entirety on the grounds that appellant could not maintain such action for conscious pain and suffering against the State. The Authority argued that such action was precluded by statute because the statute provided that where death has ensued as the result of the negligent conduct of any state agency, a claim for wrongful death is the exclusive remedy. The circuit judge
DISCUSSION
Appellant asserts that S.C. Code Ann. § 15-78-10, et seq. (Supp. 1989), the South Carolina Tort Claims Act, does not operate to preclude a survival action for conscious pain and suffering and medical expenses when an injured person subsequently dies as a result of a tort committed by the State. S.C. Code Ann. § 15-78-20 (Supp. 1989), which sets forth the public policy declaration and the extent and construction of the waiver of immunity, states that the legislature intends to provide liability on the part of the State only to the extent outlined in the Tort Claims Act. Section 15-78-20(b) provides that all other immunities applicable to the State are expressly preserved and that the remedies provided by the Tort Claims Act are to be the exclusive civil remedies available for any tort committed by the State except as provided in S.C. Code Ann. § 15-78-70(b) (Supp. 1989).
We must therefore look solely to the Tort Claims Act to determine if there exists a remedy for conscious pain and suffering and medical expenses when an injured person subsequently dies as a result of a tort committed by the State. S.C. Code Ann. § 15-78-40 (Supp. 1989) states:
The State, an agency, a political subdivision, and a
governmental entity are liable for their torts in the same
manner and to the same extent as a private individual
under like circumstances, subject to the limitations upon
liability and damages, and exemptions from liability and
damages, contained herein. (Emphasis added).
In order to determine whether appellant is entitled to pursue a survival action under Section 15-78-40 against the State, we must address three issues: (1) the extent a private individual would be liable to appellant under the facts of this case; (2) the limitations upon liability and damages set forth in the Tort Claims Act; and (3) the
Under the facts alleged in this case, a private individual cou
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