Civil Rights / Governmental Liability

We hold government entities to a high standard because they are entrusted with our care and protection.  The State of South Carolina, its agencies and its political subdivisions touch nearly every part of our lives.  There are complex state and federal laws that govern governmental liability.  We have successfully represented many clients whose civil rights have been violated by governmental entities.  These claims have involved high-speed vehicle pursuits by law enforcement, failure to provide medical treatment, unlawful law enforcement shootings, excessive force, malicious prosecution.  We have successfully represented many clients in governmental entity negligence claims.  Examples include premises liability claims, motor vehicle accidents, campus sexual assault, failure to maintain roadways, failure to maintain sidewalks, and foster care abuse.  If you have been injured as the result of wrongful conduct by a government entity, contact us to discuss the legal options available to you.

South Carolina Tort Claims Act
Historically, the doctrine of sovereign immunity barred civil suits against the government.  However, with the enaction of the South Carolina Tort Claims Act at S.C. Code § 15-78-10 et seq., the General Assembly allowed civil suits against governmental entities under certain circumstances.  The rational for this was clear: “while a private entrepreneur may be readily held liable for negligence of his employees within the chosen ambit of his activity, the area within which government has the power to act for the public good has been without limit and, therefore, government did not have the duty to do everything which might have been done.”  S.C. Code § 15-78-20(a).  However, this had to be balanced against the fact that “each governmental entity has financial limitations within which it must exercise authorized power and discretion in determining the extent and nature of its activities.”  Id.

Accordingly, the General Assembly declared that governmental entities would be subject to suit in accordance with the provisions of the Tort Claims Act.  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.   S.C. Code § 15-78-40.

What Are Governmental Entities?
Governmental entities include the State of South Carolina, its agencies and its political subdivisions.  The State includes all of its offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, and institutions.  Agencies are individual offices, agencies, authorities, departments, commissions, boards, divisions, instrumentalities, institutions, schools, colleges, and universities. Examples of Agencies include the Department of Public Safety (Highway Patrol), Department of Transportation, Department of Social Services, the University of South Carolina and Clemson University.  Political subdivisions include counties, municipalities and school districts.  Examples of political subdivisions include Charleston County, the City of Charleston, the Charleston County Sheriff’s Office and the Charleston County School Board.  It is easy to see just how expansive the term governmental entities actually is form these many examples.  S.C. Code § 15-78-30.

Exceptions to Waiver of Immunity
While the General Assembly initially provided for a broad waiver of immunity, it then enumerated numerous exceptions where a governmental entity will not be liable for a loss in S.C. Code § 15-78-60.  These include losses resulting from:

(1) legislative, judicial, or quasi-judicial action or inaction;
(2) administrative action or inaction of a legislative, judicial, or quasi-judicial nature;
(3) execution, enforcement, or implementation of the orders of any court or execution, enforcement, or lawful implementation of any process;
(4) adoption, 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;
(5) the exercise of discretion or judgment by the governmental entity or employee or the performance or failure to perform any act or service which is in the discretion or judgment of the governmental entity or employee;
(6) civil disobedience, riot, insurrection, or rebellion or the failure to provide the method of providing police or fire protection;
(7) a nuisance;
(8) snow or ice conditions or temporary or natural conditions on any public way or other public place due to weather conditions unless the snow or ice thereon is affirmatively caused by a negligent act of the employee;
(9) entry upon any property where the entry is expressly or impliedly authorized by law;
(10) natural conditions of unimproved property of the governmental entity, unless the defect or condition causing a loss is not corrected by the particular governmental entity responsible for the property within a reasonable time after actual or constructive notice of the defect or condition;
(11) assessment or collection of taxes or special assessments or enforcement of tax laws;
(12) licensing powers or functions including, but not limited to, the issuance, denial, suspension, renewal, or revocation of or failure or refusal to issue, deny, suspend, renew, or revoke any permit, license, certificate, approval, registration, order, or similar authority except when the power or function is exercised in a grossly negligent manner;
(13) regulatory inspection powers or functions, including failure to make an inspection, or making an inadequate or negligent inspection, of any property to determine whether the property complies with or violates any law, regulation, code, or ordinance or contains a hazard to health or safety;
(14) any claim covered by the South Carolina Workers’ Compensation Act, except claims by or on behalf of an injured employee to recover damages from any person other than the employer, the South Carolina Unemployment Compensation Act, or the South Carolina State Employee’s Grievance Act;
(15) absence, condition, or malfunction of any sign, signal, warning device, illumination device, guardrail, or median barrier unless the absence, condition, or malfunction is not corrected by the governmental entity responsible for its maintenance within a reasonable time after actual or constructive notice. Governmental entities are not liable for the removal or destruction of signs, signals, warning devices, guardrails, or median barriers by third parties except on failure of the political subdivision to correct them within a reasonable time after actual or constructive notice. Nothing in this item gives rise to liability arising from a failure of any governmental entity to initially place any of the above signs, signals, warning devices, guardrails, or median barriers when the failure is the result of a discretionary act of the governmental entity. The signs, signals, warning devices, guardrails, or median barriers referred to in this item are those used in connection with hazards normally connected with the use of public ways and do not apply to the duty to warn of special conditions such as excavations, dredging, or public way construction. Governmental entities are not liable for the design of highways and other public ways. Governmental entities are not liable for loss on public ways under construction when the entity is protected by an indemnity bond. Governmental entities responsible for maintaining highways, roads, streets, causeways, bridges, or other public ways are not liable for loss arising out of a defect or a condition in, on, under, or overhanging a highway, road, street, causeway, bridge, or other public way caused by a third party unless the defect or condition is not corrected by the particular governmental entity responsible for the maintenance within a reasonable time after actual or constructive notice;
(16) maintenance, security, or supervision of any public property, intended or permitted to be used as a park, playground, or open area for recreational purposes, unless the defect or condition causing a loss is not corrected by the particular governmental entity responsible for maintenance, security, or supervision within a reasonable time after actual notice of the defect or condition;
(17) employee conduct outside the scope of his official duties or which constitutes actual fraud, actual malice, intent to harm, or a crime involving moral turpitude;
(18) imposition or establishment of a quarantine by a governmental entity, whether the quarantine relates to persons or property;
(19) emergency preparedness activities and activities of the South Carolina National Guard and South Carolina State Guard while engaged in state or federal training or duty. This exemption does not apply to vehicular accidents;
(20) an act or omission of a person other than an employee including but not limited to the criminal actions of third persons;
(21) the decision to or implementation of release, discharge, parole, or furlough of any persons in the custody of any governmental entity, including but not limited to a prisoner, inmate, juvenile, patient, or client or the escape of these persons;
(22) termination or reduction of benefits under a public assistance program;
(23) institution or prosecution of any judicial or administrative proceeding;
(24) holding or conduct of elections;
(25) responsibility or duty including but not limited to supervision, protection, control, confinement, or custody of any student, patient, prisoner, inmate, or client of any governmental entity, except when the responsibility or duty is exercised in a grossly negligent manner;
(26) failure to supervise or control areas open for public hunting or activities thereon. Failure to control, maintain, and/or supervise the use of and activities in, on, and around public boat ramps except within a reasonable time after actual notice of the defect or condition. Failure to maintain navigational markers, except within a reasonable time after actual notice of the defect or condition.
(27) solicitations on streets and highways as authorized by the provisions of Section 5-27-910.
(28) Notification of any public school student’s parent, legal guardian, or other person with whom a public school student resides of the student’s suspected use of alcohol, controlled substance, prescription or nonprescription drugs by any public school administrator, principal, counselor, or teacher if such notification is made in good faith.
(29) acts or omissions of members of the state and county athletic commissions or ringside physicians acting within the scope of their official duties pursuant to Chapter 7 of Title 52.
(30) acts or omissions of members of local foster care review boards acting within the scope of their official duties pursuant to Subarticle 4, Article 13, Chapter 7 of Title 20. However, the member shall act in good faith, his conduct may not constitute gross negligence, recklessness, wilfulness, or wantonness, and he must have participated in a training program established by the state foster care review board system.
(31) acts or omissions of employees and volunteers of the South Carolina Protection and Advocacy System for the Handicapped acting within the scope of their official duties pursuant to Article 5, Chapter 33 of Title 43, when such acts or omissions are done or made in good faith, and do not constitute gross negligence, recklessness, wilfulness, or wantonness.
(32) a pre-occupancy housing inspection contracted for by the South Carolina Department of Employment and Workforce pursuant to Section 46-43-40.
(33) the performance of any duty related to the service of members of the Judicial Merit Selection Commission or the Citizens Committees on Judicial Selection.
(34) the performance of any duty related to the service of the members of the Tobacco Community Development Board.
(35) the failure of a library’s or media arts center’s governing board to adopt policies as provided in Section 10-1-205.
(36) acts or omissions by a special state constable who is appointed pursuant to Section 23-7-10 and acting within the scope of his official duty under conditions of a national emergency or of a serious and immediate risk to the physical security of an energy facility within the special state constable’s jurisdiction as provided in Section 23-7-40.
(37) the performance of any duty related to the service of the members of the Tobacco Settlement Revenue Management authority.
(38) conduct of a director appointed pursuant to Section 58-31-20 giving rise to a lawsuit under Section 58-31-57.
(39) the grant or denial by a governing body of a county or municipality as provided in Section 23-35-175 of an application to extend a Fireworks Prohibited Zone beyond the subject property for which a Discharge of Fireworks Prohibited Agreement has been filed.
(40) an injury a student may sustain as a result of self-monitoring or self-administering medications or for an injury that a student may sustain from taking or using medications or self-monitoring devices for which the student does not have a prescription or does not have authorization by the school district.

Limitation on Liability
Subject to some specific exceptions, for any action or claim for damages brought under the provisions of the Tort Claims Act, the liability shall not exceed the following limits:

(1) No person shall recover in any action or claim brought hereunder a sum exceeding three hundred thousand dollars because of loss arising from a single occurrence regardless of the number of agencies or political subdivisions involved.
(2) The total sum recovered hereunder arising out of a single occurrence shall not exceed six hundred thousand dollars regardless of the number of agencies or political subdivisions or claims or actions involved.

S.C. Code § 15-78-120.  The key term with respect to these damage caps is “occurrence,” which is defined in the Act as “an unfolding sequence of events which proximately flow from a single act of negligence.”  We have been quite successful in articulating multiple occurrences and recovering damages in excess of the $300,000 per person / per accident damage caps.  We are frequently associated by other law firms because of our understanding of this area of law and our track record of success.

Statute of Limitations
The Tort Claims Act also shortens the typical three year statute of limitations for personal injury claims to two years when the claim involves a government entity.  S.C. Code § 15-78-110.   As such, any action brought a governmental entity is forever barred unless an action is commenced within two years after the date the loss was or should have been discovered.  The Act provides an exception that extends the statute of limitations to three years when a verified claim is filed within one year of the date of the loss in accordance with the requirements of S.C. Code § 15-78-80.

Civil Rights / Governmental Liability Attorney
Selection of competent and experienced counsel is crucial to placing yourself in the best position to maximize your recovery in cases against governmental entities.  If you have suffered a civil rights violation or been seriously injured as a result of a governmental entity’s wrongful conduct, contact us to discuss the legal options available to you.