John D. Harrell, J.
If you are thinking about bringing a claim against the State or one of its political subdivisions, proceed carefully. The South Carolina Tort Claims Act1 (SCTCA) governs the procedure, and arguably the outcome, of all situations in which an individual is injured due to the action or inaction of the State, its political subdivisions, and employees acting within the scope of their official duty2 While the claims process may appear straightforward, the necessary procedure to follow the SCTCA can be exceedingly complex to those lawyers who are unfamiliar with it and even the long-time practitioner who has not yet been stung by its application. Although the Act itself purports to waive sovereign immunity in order to allow citizens to sue the State in tort, it is designed to include potentially fatal exceptions to that waiver of immunity3 The liability exceptions are well-known features of the SCTCA, but without proper study of the statute, lawyers face hidden land mines unknowingly overlooked in either properly pleading a complaint or in answering a complaint.
The SCTCA applies to the State of South Carolina and every agency, political subdivision and governmental entity within the state, including everything from the Governor's Office, to the Department of Transportation, to every county and town throughout the state.4 Each one is equally afforded the protections found in the SCTCA, which are construed and applied liberally in favor of limiting the liability of the State and its governmental entities.5 The SCTCA also features damages caps, which vary based on the governmental actors and circumstances, but are set at a single limit for any one occurrence regardless of the number of government actors and entities involved in the action. As a result, practitioners that hope to file an action under the SCTCA based on their usual practice and experience in the law may have a steep learning curve, which can impact their clients in a myriad of negative ways.
Under the SCTCA, political subdivisions are required to procure insurance to cover the risks on which immunity has been waived. The vast majority of the State's political subdivisions and employees are covered by the State-owned insurance company, the South Carolina Insurance Reserve Fund (the Fund). The Fund's insurance administrators, adjusters and insurance company defense counsel are exceptionally knowledgeable in the application of the SCTCA. They are capable and practiced in using the SCTCA as a sword against claimants to thwart and deny an injury claim, rather than as a shield to prevent government overspending and runaway juries. With a thorough understanding of the SCTCA, you too can use the Act as a sword.
Brief history of sovereign immunity
The concept of sovereign immunity is quite old and was typically considered a natural right of monarchs. According to William Blackstone, certain characteristics were "necessary to distinguish the prince from his subjects, not only by the outward pomp and decorations of majesty but also by ascribing to him certain qualities, as inherent in his royal capacity ..."6 Among these characteristics was sovereign immunity, both from civil and criminal causes of action: "Hence it is that no suit or action can be brought against the king, even in civil matters, because no court can have jurisdiction over him." In short, it was conceived of and implemented as a shield for the sovereign. Considering the history between the British Empire and the American colonies, foreign immunity on this side of the Atlantic may seem to be at odds with the formation of the United States and its governmental system. However, the founders saw reasons for its conveyance, in some uneasy form, across the pond.
There is no clear rule of sovereign immunity within the U.S. Constitution itself.8 Article III of the Constitution is quite brief, and the U.S. Supreme Court was left to find its own way as to the matter of sovereign immunity. In 1821, the Court addressed the positive existence of federal sovereign immunity as a concept in Cohens v. Virginia.9 However, there was significant confusion about how sovereign immunity was to be applied, to what kinds of claims it applied, and to whom its protections applied.10
The Supreme Court also addressed State sovereignty very early on. In 1793, the Court held that states could be sued in federal court under Article III of the Constitution. The 11th Amendment was ratified quickly thereafter: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."12
The enactment of the Federal Tort Claims Act (FTCA) in 1946 resolved some of the questions relating to federal sovereign immunity. The FTCA provides a limited waiver of federal sovereign immunity, explicitly providing for claims relating to injury, loss of property, personal injury or death caused by an act or omission of a governmental employee.13 Several states have since followed suit, passing their own tort claims acts. Without such state legislation, states possess their own sovereign immunity as confirmed by the Supreme Court in Alden v. Maine in 1999.14
The South Carolina Tort Claims Act
The SCTCA was passed in 1986. As an initial matter, the General Assembly explained the reasoning for the law: "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. Bat-son, neither should the government be subject to unlimited nor...