A. The Abolition of Sovereign Immunity in South Carolina

• Library: South Carolina Damages (SCBar) (2009 Ed.)

A. The Abolition of Sovereign Immunity in South Carolina

1. Background

Under the doctrine of sovereign immunity, an action could not be maintained against the state without its consent. This exemption from liability was a common law doctrine constituting a part of the public policy of the state of South Carolina for over 150 years.¹ The origins of sovereign immunity can be traced to eighteenth-century English common law.²Central to the doctrine was the concept that "the King can do no wrong."³

In the United States, however, the doctrine developed more out of practical reasons than political ones. The new government in post-Revolutionary War America was not financially equipped to compensate citizens who suffered losses at the hands of government.⁴In addition, governmental operations would be disrupted if the government were forced to defend meritorious claims.⁵ Therefore, in order to manage these practical dilemmas, the courts adopted the doctrine of sovereign immunity to protect the states just as the English common law protected the King.⁶

But as government expanded and its relationship with citizens dramatically changed, so did the law. The practical reasons for creating sovereign immunity could not stand up to the policy reasons for abolishing it. As Justice Ness wrote, "Public convenience can no longer outweigh individual compensation for injuries sustained through the negligence of its government."⁷ Exempting the government from suits caused by the tortious acts of its employees was labeled "unconscionable."⁸ Finally, the doctrine of sovereign immunity was considered in direct contradiction to the principle that the courthouse doors "should always be open to redress grievances."⁹ For these reasons, the doctrine of sovereign immunity has gradually eroded.

The South Carolina Supreme Court began to urge legislative abolition of sovereign immunity as early as 1959.¹⁰ At that time, the legislature had carved out a few exceptions to the doctrine, but those exceptions lacked logic and consistency.¹¹ In order to avoid the bar of sovereign immunity, many litigants brought actions against the State under the takings clause of the South Carolina Constitution¹² for tortious conduct by the government.¹³

2. Waiver of Sovereign Immunity

The South Carolina Supreme Court abolished the state's immunity from contractual liability in 1978.¹⁴ The court held that when the state of South Carolina enters into a valid contract pursuant to statutory authority, the state implicitly consents to be sued and waives its sovereign immunity to the extent of its contractual obligations.¹⁵

In 1985, the South Carolina Supreme Court, following the national trend,¹⁶ judicially abolished the...