S 1150 Session 111 (1995-1996)
S 1150 General Bill, By Drummond
A Bill to amend Chapter 78, Title 15, Code of Laws of South Carolina, 1976,
relating to the South Carolina Tort Claims Act, so as to revise the provisions
of this Act including provisions relating to the immunity of governmental
entities, a further definition of the agencies to which this Act applies, the
manner in which and time within which claims may be brought and maintained,
the circumstances which give rise to a loss, the applicable interest rate on
judgments against governmental entities and the stipulation that a judgment
against a governmental entity does not constitute a lien upon the property of
the entity; to amend Section 23-13-10, relating to the appointment of deputy
sheriffs, so as to delete language relating to the sheriff being answerable
for the neglect of his deputies which is in conflict with the above
provisions, and to repeal Sections 16-5-60 and 16-5-70 relating to certain law
suits against counties.
02/15/96 Senate Introduced and read first time SJ-10
02/15/96 Senate Referred to Committee on Judiciary SJ-10
A BILL
TO AMEND CHAPTER 78, TITLE 15, CODE OF LAWS OF
SOUTH CAROLINA, 1976, RELATING TO THE SOUTH
CAROLINA TORT CLAIMS ACT, SO AS TO REVISE THE
PROVISIONS OF THIS ACT INCLUDING PROVISIONS
RELATING TO THE IMMUNITY OF GOVERNMENTAL
ENTITIES, A FURTHER DEFINITION OF THE AGENCIES TO
WHICH THIS ACT APPLIES, THE MANNER IN WHICH AND
TIME WITHIN WHICH CLAIMS MAY BE BROUGHT AND
MAINTAINED, THE CIRCUMSTANCES WHICH GIVE RISE
TO A LOSS, THE APPLICABLE INTEREST RATE ON
JUDGMENTS AGAINST GOVERNMENTAL ENTITIES AND
THE STIPULATION THAT A JUDGMENT AGAINST A
GOVERNMENTAL ENTITY DOES NOT CONSTITUTE A LIEN
UPON THE PROPERTY OF THE ENTITY; TO AMEND
SECTION 23-13-10, RELATING TO THE APPOINTMENT OF
DEPUTY SHERIFFS, SO AS TO DELETE LANGUAGE
RELATING TO THE SHERIFF BEING ANSWERABLE FOR
THE NEGLECT OF HIS DEPUTIES WHICH IS IN CONFLICT
WITH THE ABOVE PROVISIONS, AND TO REPEAL
SECTIONS 16-5-60 AND 16-5-70 RELATING TO CERTAIN
LAW SUITS AGAINST COUNTIES.
Be it enacted by the General Assembly of the State of South
Carolina:
SECTION 1. Chapter 78 of Title 15 of the 1976 Code is
amended to read:
"CHAPTER 78
South Carolina Tort Claims Act
Section 15-78-10. This chapter may be cited as the `South
Carolina Tort Claims Act'.
Section 15-78-20. (a) The General Assembly finds that 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. The General
Assembly further finds 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.
Thus, while total immunity from liability on the part of the
government is not desirable, see McCall v. Batson, neither should
the government be subject to unlimited nor unqualified liability for
its actions. The General Assembly recognizes the potential
problems and hardships each governmental entity may face being
subjected to unlimited and unqualified liability for its actions.
Additionally, the General Assembly recognizes the impossibility of
insuring for acts retrospectively. The General Assembly seeks an
orderly transition to the recognition of individuals' rights against
the tortious sovereign as defined herein. Consequently, it is
declared to be the public policy of the State of South Carolina that
agencies of the State, and its political subdivisions
of the state, are only liable for torts within the limitations
of this chapter and in accordance with the principles established
herein. It is further declared to be the public policy of the State of
South Carolina that to insure an orderly transition from sovereign
immunity to qualified and limited liability that the General
Assembly intends to provide for liability on the part of agencies
of the State and its political subdivisions of the
state only from July 1, 1986, forward in prospective fashion.
No governmental entity which was not insured at the time of the
injury for which compensation is sought is liable under this chapter
and those which were insured are liable only to the extent provided
herein. Liability for acts or omissions under this chapter is based
upon the traditional tort concepts of duty and the reasonably
prudent person's standard of care in the performance of that duty.
(b) The General Assembly in this chapter intends to
grant reaffirms that the State, agencies of the
state, its political subdivisions of the state, and
employees, while acting within the scope of official duty,
immunity are immune from liability and suit for
any tort except as expressly waived by this chapter. The
General Assembly additionally intends to provide for liability on the
part of agencies of the State, its political subdivisions, and
employees, while acting within the scope of official duty, only to
the extent provided herein in this chapter. All other
immunities applicable to a governmental entity, its employees, and
agents are expressly preserved. Any issue involving immunity in
this chapter is to be construed strictly in favor of retention of
immunity. The remedy provided by this chapter is the
exclusive civil remedy available for any tort committed by a
governmental entity, its employees, or its agents except as provided
in Section 15-78-70(b).
(c)(i) As to those causes of action that arise or accrue prior
to before the effective date of this act, the General
Assembly reinstates sovereign immunity on the part of the State, its
political subdivisions and employees, while acting within the scope
of official duty provided that sovereign immunity will not bar
recovery in any cause of action arising or accruing on or before the
effective date of this act if the defendant maintained liability
insurance coverage.
(ii) In such cases involving governmental health care
facilities, as defined in Section 15-78-30(j), recovery shall not
exceed the limits of the liability insurance coverage up to a
maximum recovery of five hundred thousand dollars.
(iii) In all other such cases recovery shall not exceed the limits
of the liability insurance coverage.
(d) Nothing in this chapter affects liability based on contract
nor does it affect the power of the State or its political subdivisions
to contract the immunity of the government for claims other
than tort claims The General Assembly reaffirms sovereign
immunity in all contexts except as expressly waived in this
chapter.
(e) Nothing in this chapter is construed as a waiver of the
state's or political subdivision's immunity from suit in federal court
under the Eleventh Amendment to the Constitution of the United
States nor as consent to be sued in any state court beyond the
boundaries of the State of South Carolina.
(f) The provisions of this chapter establishing limitations on
and exemptions to the liability of the State, its political
subdivisions, and employees, while acting within the scope of
official duty the government's immunity from suit,
must be liberally construed in favor of limiting the liability of the
State government. Any provision modifying the
government's immunity from suit shall be construed in favor of
immunity.
(g) The General Assembly recognizes the competing interests of
either providing physicians and dentists qualified immunity under
the provisions of the South Carolina Tort Claims Act or continuing
unqualified liability for medical malpractice actions brought against
governmentally employed physicians or dentists. While patients
deserve accountable and competent health care, regardless of the
public or private character of the provider, governmental entities, in
order to attract qualified physicians and dentists, must be able to
offer an affordable compensation and employment package,
including liability insurance. The General Assembly, in amending
this chapter, intends to provide an orderly transition from
noninclusion to inclusion of physicians and dentists under the
provisions of this chapter. Additionally, the liability limits, and
hence mandated insurance coverage, of governmental entities for
acts of physicians or dentists, acting within the scope of their
profession, are set somewhat higher than those provided for other
types of governmental liability. These higher limits and mandated
coverages are recognition by the General Assembly of significantly
higher damages in cases of medical malpractice. To this end,
inclusion of physicians and dentists within this chapter has been
delayed until January 1, 1989, when an affordable program of
group liability insurance will be instituted.
Section 15-78-30. (a) `Agency' means the individual
any of the following entities which employs the employee
whose act or omission gives rise to a claim under this chapter: a
state governmental office, agency, authority, department,
commission, board, division, or instrumentality, or
institution, including a state-supported governmental health care
facility, or school, college, university, or technical college,
which employs the employee whose act or omission gives rise to
a claim under this chapter and the South Carolina Protection
and Advocacy System for the Handicapped, Inc.
(b) `Claim' means any a verified, written
demand against the State of South Carolina an
agency or a political subdivision for money only, on account of
loss, caused by the tort of any employee of the State
agency or a political subdivision, while
acting within the scope of his the employee's
official duty.
(c) Prior to Before January 1, 1989, `Employee'
means any officer, employee, or agent of the State an
agency or of a its political subdivisions
subdivision, including elected or appointed officials, law
enforcement officers, and persons acting on behalf or in service of a
governmental entity in the scope of official duty, whether with or
without compensation, but the term does not include an independent
contractor doing business with the State or any political subdivision
thereof. Custody of prisoners by the State or any of its political
subdivisions a governmental entity does not in and of
itself create an employer and employee relationship between the
State governmental entity and the prisoner.
Provided, the provisions of this section shall in no way limit or
modify the liability of a licensed physician or dentist, acting within
the scope of his profession.
On or after January 1, 1989, `Employee' means any officer,
employee, or agent of the State an agency or
its of a political subdivisions
subdivision, including elected or appointed officials, law
enforcement officers, and persons acting on behalf or in service of a
governmental entity in the scope of official duty, whether with or
without compensation, but the term does not include an independent
contractor doing business with the State or any political subdivision
thereof. Custody of prisoners by the State or any of its political
subdivisions a governmental entity does not in and of
itself create an employer and employee relationship between the
State governmental entity and the prisoner.
Provided, the provisions of this section shall in no way limit or
modify the liability of a licensed physician or dentist, acting within
the scope of his profession, with respect to any action or claim
brought hereunder which involved services for which the physician
or dentist was paid, should have been paid, or expected to be paid
at the time of the rendering of the services from any source other
than the salary appropriated by the governmental entity or fees
received from any practice plan authorized by the employer whether
or not the practice plan is incorporated and registered with the
Secretary of State.
(d) `Governmental entity' means the State and its political
subdivisions an agency or a political subdivision as the
terms are defined in this chapter.
(e) `State' means the State of South Carolina and any of its
offices, agencies, authorities, departments, commissions, boards,
divisions, instrumentalities, including the South Carolina Protection
and Advocacy System for the Handicapped, Inc., and institutions,
including state-supported governmental health care facilities,
schools, colleges, universities, and technical colleges.
(f) `Loss' means bodily injury, disease, death, or
pain and suffering, damage to tangible property,
including and lost wages and economic loss
only to the person who suffered the bodily injury,
disease, or death, pain and suffering, mental anguish, and any
other element of actual damages recoverable in actions for
negligence, but does not include the intentional infliction of
emotional harm.
(g) `Occurrence' means an unfolding sequence of events which
proximately flow from a single or continuous act of
negligence.
(h) `Political subdivision' means the counties, municipalities,
school districts, a regional transportation authority established
pursuant to Chapter 25 of Title 58, and an operator as defined in
item (8) of Section 58-25-20 which provides public transportation
on behalf of a regional transportation authority, and special purpose
districts of established by the State, and
any agency, governmental health care facility, department, or
subdivision thereof of a political subdivision.
(i) `Scope of official duty' or `scope of state employment'
means (1) acting in and about the official business of a
governmental entity and (2) performing official duties.
(j) `Governmental health care facility' means one which is
operated by the State or a political subdivision through a governing
board appointed or elected pursuant to statute or ordinance and
which is tax-exempt under state and federal laws as a governmental
entity and from which no part of its net income from its operation
accrues to the benefit of any individual or nongovernmental entity.
Health care facility includes any facility as defined in Title 44, S.
C. Code Ann. for the provision of mental or physical care to
individuals, whether or not it is required to be licensed under those
provisions.
Section 15-78-40. The State, an An agency
of the state, 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 only as expressly
provided in this chapter.
Section 15-78-50. (a) Any person who may suffer a loss
proximately caused by a tort of the State, an agency, a
political subdivision, or a governmental entity, and its employee
acting within the scope of his official duty may file a claim as
hereinafter provided.
(b) In no case is a governmental entity liable for a tort of an
employee where that employee, if a private person, would not be
liable under the laws of this State.
(c) Nothing herein shall affect the power of a court of equity at
the suit of a party complainant to enjoin unlawful acts committed
by governmental entities or mandate lawful action by governmental
entities.
Section 15-78-60. (a) The immunity of the government is
absolute and may not be waived except as provided by this chapter.
The burden of establishing waiver of immunity shall be upon the
party seeking to establish the waiver.
(b) The A governmental entity is not
liable for a loss resulting from any one or more of the
following:
(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 administrative tribunal, and 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 any decision that
involves a degree of judgment or discretion, regardless whether the
judgment or discretion was properly exercised, or the performance
or failure to perform any act or service which is in the discretion or
judgment of the governmental entity or employee, regardless
whether the judgment or discretion was properly exercised;
(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 any
condition of property of the governmental entity, whether
improved or unimproved, unless the defect or condition causing
a loss is not corrected remedied by the particular
governmental entity responsible for the property within a reasonable
time after the governmental entity receives actual or
constructive notice that the condition exposes the public to
an unreasonable, known and particular danger. Where the
governmental entity has provided warnings or notice to the
public of the defect or condition, no further remedial action
is required;
(11) assessment or collection of taxes or special assessments or
enforcement of tax laws, whether proper or improper;
(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, the South Carolina Unemployment
Compensation Act, or the South Carolina State Employee's
Grievance 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 a
governmental entity as defined in this chapter;
(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 remedied 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 any defect on a highway or public
roadway unless that defect occurs on the portion of the highway or
public road which is designed for and regularly used for travel.
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 remedied by the particular
governmental entity responsible for the maintenance within a
reasonable time after actual or constructive notice;
(16) maintenance, possession, security, or supervision
of any public property, intended or permitted to be used as a
park, playground, or open area for recreational purposes, unless
both
(i) 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, and
(ii) the particular governmental entity responsible for
maintenance, security, or supervision failed to make reasonable
effort to provide warnings or notice to the public;
(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 nonemergency use
of vehicles;
(20) an act or omission of a person other than an
employee including but not limited to the criminal actions of third
persons any loss that is proximately caused by an act or
omission of a person other than an employee;
(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) defects existing on any property unless that property
is actually owned, occupied, and maintained by the respective
governmental entity.
Section 15-78-70. (a) This chapter constitutes the exclusive
remedy for any tort committed by an employee of a governmental
entity. An employee of a governmental entity who commits a tort
while acting within the scope of his official duty is not liable
therefor except as expressly provided for in subsection (b).
(b) Nothing in this chapter may be construed to give an
employee of a governmental entity immunity from suit and liability
if it is proved that the employee's conduct was not within the scope
of his official duties or that it constituted actual fraud, actual
malice, intent to harm, or a crime involving moral turpitude.
(c) Prior to Before January 1, 1989, a person,
when bringing an action against a governmental entity under the
provisions of this chapter, shall name as a party defendant only the
agency or political subdivision for which the employee was acting
and is not required to name the employee individually, unless the
agency or political subdivision for which the employee was acting
cannot be determined at the time the action is instituted. In the
event that the employee is individually named, the agency or
political subdivision for which the employee was acting must be
substituted as the party defendant. In no event is an action
against the State of South Carolina authorized. The provisions
of this section may in no way limit or modify the liability of a
licensed physician or dentist, acting within the scope of his
profession.
On or after January 1, 1989, a person, when bringing an action
against a governmental entity under the provisions of this chapter,
shall name as a party defendant only the agency or political
subdivision for which the employee was acting and is not required
to name the employee individually, unless the agency or political
subdivision for which the employee was acting cannot be
determined at the time the action is instituted. In the event that the
employee is individually named, the agency or political subdivision
for which the employee was acting must be substituted as the party
defendant. The provisions of this section in no way shall limit or
modify the liability of a licensed physician or dentist, acting within
the scope of his profession, with respect to any action or claim
brought hereunder which involved services for which the physician
or dentist was paid, should have been paid, or expected to be paid
at the time of the rendering of the services from any source other
than the salary appropriated by the governmental entity or fees
received from any practice plan authorized by the employer whether
or not the practice plan is incorporated and registered with the
Secretary of State.
(d) A settlement or judgment in an action or a settlement of a
claim under this chapter constitutes a complete bar to any further
action by the claimant against an employee or governmental entity
by reason of the same occurrence.
Section 15-78-80. (a) A verified claim for damages under this
chapter, setting forth the circumstances which brought about the
loss, the extent of the loss, the time and place the loss occurred, the
names of all persons involved if known, and the amount of the loss
sustained may must be filed:
(1) in cases against the State an agency, with
the State Budget and Control Board, or with the agency employing
an employee whose alleged act or omission gave rise to the claim;
(2) where the claim is against a political subdivision, with the
political subdivision employing an employee whose alleged act or
omission gave rise to the claim;
(3) where the identification of the proper defendant
state agency is in doubt, with the Attorney General.
(b) Each agency and political subdivision must designate an
employee or office to accept the filing of the claims.
(c) Filing may be accomplished by receipt of certified mailing
of the claims or by compliance with the provisions of law relating
to service of process.
(d) The verified claim may be received by the Budget and
Control Board or the appropriate agency or political subdivision.
If filed, the
The verified claim must be received within one year after the
loss was or should have been discovered. Except as provided
for in Section 15-3-40, if a claim is not filed within the time
specified any action for damages will be barred.
(e) In all cases in which a claim is filed, the
The Budget and Control Board or political subdivision has
one hundred eighty days from the date of filing of the claim in
which to determine whether the claim should be allowed or
disallowed. Failure to notify the claimant of action upon the claim
within one hundred eighty days from the date of filing of the claim
is considered a disallowance of the claim.
(f) The handling and disposition of claims filed under this
chapter are not subject to the provisions of Article 3, Chapter 23 of
Title 1.
(g) In all cases, where insurance is provided by the Budget and
Control Board, the agency or political subdivision involved must
cooperate with the Budget and Control Board in the investigation
and handling of any claim.
Section 15-78-90. (a) The Budget and Control Board, or the
political subdivision where it has not purchased insurance from the
Budget and Control Board, may adjust, compromise, settle, or allow
any claim or settle or compromise any action.
(b) Whether or not the When a claim is filed
pursuant to this chapter and rejected, the claimant is
entitled to institute an action against the appropriate agency or
political subdivision. Provided, however, if a claimant files a
claim, he the claimant may not institute an action
for damages under this chapter until after the occurrence of
the earliest of one of the following three two
events:
(1) the passage of one hundred eighty days from the filing of
the claim with the governmental entity, or
(2) the governmental entity's disallowance of the claim, or
(3) the governmental entity's rejection of a settlement
offer.
Section 15-78-100. (a) Except as provided for in Section
15-3-40, an action for damages under this chapter may be
instituted at any time within two years after the loss was or should
have been discovered. Provided, that if a claim for damages
was timely filed as provided in this chapter and
was disallowed or rejected pursuant to Section
15-78-90(b), an action for damages filed under this
chapter, based upon the same occurrence as the claim, may
must be filed instituted within three years
after the loss was or should have been discovered.
(b) Jurisdiction for any action brought under this chapter is in
the circuit court and brought in the county in which the act or
omission occurred. The action must be tried by a judge without
a jury. Except as provided in this chapter, the court has no
jurisdiction to adjudicate tort actions against a governmental
entity.
(c) In all actions brought pursuant to this chapter when an
alleged joint tortfeasor is named as party defendant in addition to
the governmental entity, when two or more persons are
alleged to be jointly or severally liable for the same injury and
regardless of whether the persons are named in the action, the
trier of fact must return a special verdict specifying the proportion
of monetary liability of each defendant against whom liability is
determined governmental entity.
Section 15-78-110. Except as provided for in Section 15-3-40,
any action brought pursuant to this chapter is forever barred unless
an action is commenced within two three years after
the date the loss was or should have been discovered; provided, that
if in order to commence an action in court, the
claimant first must have timely filed a claim
pursuant to this chapter. If no claim is timely filed pursuant to
this chapter, any then the action for damages based
upon the same occurrence is forever barred unless the action is
commenced within three years of the date the loss was or should
have been discovered.
Section 15-78-120. (a) For any action or claim for damages
brought under the provisions of this chapter, the liability shall not
exceed the following limits:
(1) Except as provided in Section 15-78-120(a)(3), no person
shall recover in any action or claim brought hereunder a sum
exceeding two hundred fifty thousand dollars because of loss arising
from a single occurrence regardless of the number of agencies or
political subdivisions involved.
(2) Except as provided in Section 15-78-120(a)(4), the total
sum recovered hereunder arising out of a single occurrence shall
not exceed five hundred thousand dollars regardless of the number
of agencies or political subdivisions or claims or actions involved.
(3) No person may recover in any action or claim brought
hereunder against any governmental entity and caused by the tort of
any licensed physician or dentist, employed by a governmental
entity and acting within the scope of his profession, a sum
exceeding one million dollars because of loss arising from a single
occurrence regardless of the number of agencies or political
subdivisions involved.
(4) The total sum recovered hereunder arising out of a single
occurrence of liability of any governmental entity for any tort
caused by any licensed physician or dentist, employed by a
governmental entity and acting within the scope of his profession,
may not exceed one million dollars regardless of the number of
agencies or political subdivisions or claims or actions involved.
(5) The provisions of Section 15-78-120(a)(3) and (a)(4) shall
in no way limit or modify the liability of a licensed physician or
dentist, acting within the scope of his profession, with respect to
any action or claim brought hereunder which involved services for
which the physician or dentist was paid, should have been paid, or
expected to be paid at the time of the rendering of the services from
any source other than the salary appropriated by the governmental
entity or fees received from any practice plan authorized by the
employer whether or not the practice plan is incorporated and
registered with the Secretary of State.
(b) No award for damages under this chapter shall include
punitive or exemplary damages or interest prior to
before judgment. Any judgment against a governmental
entity entered pursuant to this chapter shall accrue interest at the
same rate of the one year United States treasury bill on the day that
the judgment was entered by the court. In no event shall a
judgment against a governmental entity constitute a lien upon the
property of the governmental entity.
(c) In any claim, action, or proceeding to enforce a provision of
this chapter, the signature of an attorney or party constitutes a
certificate by him that he has read the pleading, motion, or other
paper; that to the best of his knowledge, information, and belief
formed after reasonable inquiry it is well-grounded in fact and is
warranted by existing law or a good faith argument for the
extension, modification, or reversal of existing law, and that it is
not interposed for any improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation. If a pleading, motion, or other paper is not signed, it
shall be stricken unless it is signed promptly after the omission is
called to the attention of the pleader or movant. If a pleading,
motion, or other paper is signed in violation of this rule, the court,
upon motion or upon its own initiative, shall impose upon the
person who signed it, a represented party, or both, an appropriate
sanction, which may include an order to pay the other party or
parties the amount of the reasonable expenses incurred because of
the filing of the pleading, motion, or other paper, including a
reasonable attorney's fee.
Section 15-78-130. The defense for a political subdivision against
an action brought pursuant to this chapter, when the political
subdivision does not purchase insurance through the Budget and
Control Board, must be provided by the political subdivision or its
designee.
Section 15-78-140. (a) It is the duty of the Budget and Control
Board to cover risks for which immunity has been waived under the
provisions of this chapter by the purchase of insurance as
authorized in Section 15-78-150.
(b) The political subdivisions of this State, in regard to tort and
automobile liability, property and casualty insurance shall procure
insurance to cover these risks for which immunity has been waived
by:
(1) the purchase of liability insurance pursuant to Section
1-11-140; or
(2) the purchase of liability insurance from a private carrier;
or
(3) self-insurance; or
(4) establishing pooled self-insurance liability funds, by
intergovernmental agreement, which may not be construed as
transacting the business of insurance or otherwise subject to state
laws regulating insurance. A pooled self-insurance liability pool is
authorized to purchase specific and aggregate excess insurance. A
pooled self-insurance liability fund must provide liability coverage
for all employees of a political subdivision applying for
participation in the fund. If the insurance is obtained other than
pursuant to Section 1-11-140, it must be obtained subject to the
following conditions:
(1)(i) If the political subdivision does not
procure tort liability insurance pursuant to Section 1-11-140, it must
also procure its automobile liability and property and casualty
insurance from other sources and shall not procure these coverages
through the Budget and Control Board;
(2)(ii) If a political subdivision procures
its tort liability insurance, automobile liability insurance, or property
and casualty insurance through the Budget and Control Board, all
liability exposures of the political subdivision as well as its property
and casualty insurance must be insured with the Budget and Control
Board;
(3)(iii) If the political subdivision, at any
time, procures its tort liability, automobile liability, property, or
casualty insurance other than through the Budget and Control Board
and then subsequently desires to obtain this coverage with the
Budget and Control Board, notice of its intention to so obtain this
subsequent coverage must be provided the Budget and Control
Board at least ninety days prior to before the
beginning of the coverage with the State Budget and Control Board.
The other lines of insurance that the political subdivision is required
to procure from the board are not required to commence until the
coverage for that line of insurance expires. Any political
subdivision may cancel all lines of insurance with the State Budget
and Control Board if it gives ninety days' notice to the board. The
Budget and Control Board may negotiate the insurance coverage for
any political subdivision separate from the insurance coverage for
other insureds.
(4)(iv) If any political subdivision cancels
its insurance with the Budget and Control Board, it is entitled to an
appropriate refund of the premium, less reasonable administrative
cost.
(c) For any claim filed under this chapter, the remedy provided
in Section 15-78-120 is exclusive. The immunity of the State and
its political subdivisions, with regard to the seizure, execution, or
encumbrance of their properties is reaffirmed.
Section 15-78-150. (a) The Budget and Control Board is
authorized to purchase liability insurance.
(b) The purchase of insurance must be funded by participating
governmental entities by payment of premiums as required by the
Budget and Control Board. The Budget and Control Board in
setting these premiums shall rate the policy according to the risk
involved with the general class of insured entity. The Budget and
Control Board must develop an actuarial rating system plan based
upon the classification of employee and the risk involved by class
of employee which must be implemented by July 1, 1990.
Section 15-78-160. If any agency or political subdivision fails to
pay any required premium and the failure results in loss of
coverage, then the Budget and Control Board is not liable for any
uncovered or unfunded risk.
Section 15-78-170. An action or claim for the death of a person
may be brought under this chapter by the executor or administrator
respectively, of the person's estate when death results from bodily
injury if the bodily injury would have entitled the injured party to
maintain an action or claim if death had not ensued. The provisions
and limitations of this chapter are applicable to any such action or
claim. Every action or claim must be for the benefit of the wife or
husband and child, or children of the person whose death has been
so caused and if there is no wife, husband, child, or children, then
for the benefit of the parent or parents, and if there is none, then
for the benefit of the heirs-at-law or the distributees of the person
whose death has been so caused. Any amount recovered must be
divided among the before-mentioned parties in those shares as they
would have been entitled to if the deceased had died intestate and
the amount recovered had been personal assets of his estate.
Section 15-78-180. The provisions of Chapter 78 of Title 15 of
the 1976 Code shall only apply to those causes of action arising or
accruing after the effective date of this chapter; provided, however,
the provisions of Section 15-78-20(c) of the 1976 Code are
applicable to all causes of action arising on or before the effective
date of the chapter.
Section 15-78-190. If the amount of the verdict or judgment is
not satisfied by reason of the monetary limitations of this chapter
upon recovery from the State agency or political
subdivision thereof of the State, the plaintiff's
insurance company, subject to the underinsured and uninsured
defendant provisions of the plaintiff's insurance policy, if any, shall
compensate the plaintiff for the difference between the amount of
the verdict or judgment and the payment by the political
subdivision. If a cause of action is barred under Section 15-78-60
of the 1976 Code, the plaintiff's insurance company must
compensate him for his losses subject to the aforementioned
provisions of his insurance policy."
SECTION 2. (A) Section 23-13-10 of the 1976 Code is
amended to read:
"Section 23-13-10. The sheriff may appoint one or
more deputies to be approved by the judge of the circuit court or
any circuit judge presiding therein. Such appointment shall be
evidenced by a certificate thereof, signed by the sheriff, and shall
continue during his pleasure. The sheriff shall in all cases be
answerable for neglect of duty or misconduct in office of any
deputy."
SECTION 3. Sections 16-5-60 and 16-5-70 of the 1976 Code
are repealed.
SECTION 4. Any other acts, provisions of law, or parts thereof
other than those referenced in this section which provide for tort
actions against governmental entities are repealed.
SECTION 5. This act takes effect upon approval by the
Governor and applies to any claim or action filed after the effective
date of this Act. All actions pending on the effective date of this
Act shall be governed by the South Carolina Tort Claims Act as it
existed immediately prior to the effective date of this Act.
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