THIS OPINION HAS NO PRECEDENTIAL VALUE.  IT SHOULD NOT BE CITED OR RELIED ON AS PRECEDENT IN ANY PROCEEDING EXCEPT AS PROVIDED BY RULE 239(d)(2), SCACR.

THE STATE OF SOUTH CAROLINA
In The Court of Appeals

Jeffery R. Hart, Respondent,

v.

South Carolina Department of Transportation, Appellant.

Appeal From Orangeburg County
Diane S. Goodstein, Circuit Court Judge

Unpublished Opinion No. 2008-UP-432
Heard May 7, 2008 – Filed August 4, 2008

AFFIRMED

Andrew F. Lindemann, of Columbia, for Appellant.

David Whittington, of Summerville, for Respondent.

PER CURIAM:  In this personal injury action, the South Carolina Department of Transportation appeals a verdict for Plaintiff Jeffery R. Hart.  The questions presented in this appeal are:  (1) whether the Department was entitled to claim sovereign immunity under the South Carolina Tort Claims Act; and (2) whether the trial judge erred in directing a verdict on the Department’s defense of comparative negligence.  We affirm.

FACTS AND PROCEDURAL HISTORY

Hart was employed as a senior patrol officer by the Town of Holly Hill.  On December 1, 2002, Hart began his patrol shift around 9:00 p.m., expecting to work until seven o’clock the following morning.  During the early morning hours of his shift, Hart observed a vehicle stop at two residences one block apart from each other.  At both stops, the driver of the car hastily exited the vehicle and quickly approached the house.  When he observed the vehicle make a left turn without a turn signal, Hart instructed another officer on duty in the vicinity to initiate a traffic stop.  In addition, because of the behavior of the driver, Hart wanted “to make sure everything was still going to be okay with the person.”

The officer whom Hart had instructed to initiate the traffic stop informed Hart by radio that the vehicle did not pull over after activation of the blue light.  When Hart heard the siren in the background, he activated the blue light and siren on his own vehicle and joined in the pursuit.

During the pursuit, Hart observed the vehicles of both the suspect and the accompanying officer stop at two stop signs.  Furthermore, neither vehicle ran any stop signs.  After the suspect feigned a stop, the vehicle Hart was driving became the primary car behind the suspect’s vehicle.

Because Hart had never been on the road on which the suspect was leading him, he asked the Orangeburg County dispatch if there was a deputy in the area.  At no time did either Hart’s vehicle or the suspect’s vehicle ever exceed eighty miles per hour.[1]  Throughout the pursuit, Hart maintained a following distance of about six to eight car lengths.

The paved, straight road on which the two vehicles were proceeding dead-ended into a dirt road; however, there was no stop sign at the intersection.  The suspect did not stop at the intersection, which caused her vehicle to go airborne into the woods, resulting in fatal injuries.  Similarly, Hart was unable to stop or take other evasive action and sustained bodily injuries when his vehicle crashed into the same wooded area.  Hart estimated both vehicles were traveling at a speed of seventy-two miles per hour when they reached the intersection.

On November 10, 2004, Hart commenced this action under the South Carolina Tort Claims Act against the Department, alleging the Department was negligent in failing to have appropriate signage at the intersection.  In its answer, dated January 19, 2005, the Department denied the allegations in the complaint and made the following assertions as affirmative defenses:  (1) the acts or omissions of third parties not within its control superseded and intervened to such an extent as to negate any effect of its own negligence; (2) punitive damages were not recoverable; (3) the acts or omissions allegedly constituting negligence were not actionable because they resulted from the exercise of discretion or judgment; (4) Hart’s own negligence barred any recovery; and (5) the Department was entitled to “any defense under the South Carolina Tort Claims Act, S.C. Code Ann. § 15-78-10 et seq. not already pled above.”

A jury trial in the matter took place on January 9, 2006.  At the close of Hart’s case and again at the close of its own case, the Department moved for a directed verdict on the following three grounds:  (1) Hart failed to prove the Department had actual or constructive notice of the missing stop sign; (2) Hart’s negligence was greater than 50 percent and he should not recover under comparative negligence law; and (3) Hart’s sole remedy was through the South Carolina Workers’ Compensation Act.  The trial judge rejected all three grounds and denied the motion.

Hart also moved for directed verdicts on the issue of liability and on the Department’s comparative negligence defense.  Although the trial judge submitted the issue of liability to the jury, she directed a verdict for Hart on the issue of comparative negligence, thus striking that defense.

The jury returned a verdict in Hart’s favor in the amount of $1,000,000.  The Department then filed post-trial motions for judgment notwithstanding the verdict (JNOV), for a new trial absolute, and to alter or amend the judgment.  By order dated April 6, 2006, the trial judge granted the Department’s motion to alter or amend the judgment, reducing the verdict to $300,000 in accordance with the South Carolina Tort Claims Act, but denied the Department’s other motions.  Specifically, the trial judge found the Department had constructive notice “because [it] was under a continuing duty to check the intersection bi-monthly or six (6) times a year, plus a night inspection annually.”  The trial judge also found there was no evidence that Hart was negligent under the circumstances of the case.  Finally, the trial judge rejected the Department’s claim that the South Carolina Workers’ Compensation Act was Hart’s only remedy.  This appeal followed.

STANDARD OF REVIEW

The trial court is required to view the evidence and reasonably drawn inferences in the light most favorable to the non-moving party when ruling on motions for directed verdict and JNOV.  Jinks v. Richland County, 355 S.C. 341, 345, 585 S.E.2d 281, 283 (2003).  The court should deny the motion when the evidence yields more than one inference or its inference is in doubt.  Id.  “The appellate court will reverse the trial court’s ruling on a JNOV motion only when there is no evidence to support the ruling or where the ruling is controlled by an error of law.”  Law v. S.C. Dep’t of Corr., 368 S.C. 424, 434-435, 629 S.E.2d 642, 648 (2006) (citing Hinkle v. Nat’l Cas. Ins. Co., 354 S.C. 92, 96, 579 S.E.2d 616, 618 (2003)).

LAW/ANALYSIS

1.  The Department asserts the trial judge should have ruled it was entitled to protection from liability under section 15-78-60(14) of the South Carolina Tort Claims Act.  We find no reversible error.

In her post-trial order, the trial judge gave three reasons for rejecting the Department’s argument that Hart’s sole remedy for his injuries was through the South Carolina Workers’ Compensation Act:  (1) the issue had not been properly raised to the court; (2) South Carolina Code section 15-78-60(14) did not bar Hart from pursuing a personal injury claim against the Department because he “was employed by the Town of Holly Hill, not by the State or the South Carolina Department of Transportation”; and (3) even if section 15-78-60(14) were applicable, Hart could still recover against the Department under the dual persona doctrine because he was suing the Department for breach of duties that were wholly independent of any owed to him as an employee of the Town of Holly Hill.  A decision by this Court to uphold any one of these three grounds is sufficient to affirm the trial judge’s determination that Hart was not limited to recovery under the South Carolina Workers’ Compensation Act for his injuries.  See Weeks v. McMillan, 291 S.C. 287, 292, 353 S.E.2d 289, 292 (Ct. App. 1987) (“Where a decision is based on alternative grounds, either of which independent of the other is sufficient to support it, the decision will not be reversed even if one of the grounds is erroneous.”).

We agree with the trial judge that the issue of whether the Department was immune from liability under section 15-78-60(14) was not properly presented to the trial court.

Under the South Carolina Tort Claims Act, “[t]he 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 limitations and exemptions from liability and damages as provided within the Act.  S.C. Code Ann. § 15-78-40 (2005).  One such exception to the waiver of immunity is contained within section 15-78-60(14).  That section provides in pertinent part that “[t]he governmental entity is not liable for a loss resulting from . . . 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 . . . .”  Id. § 15-78-60(14).  As with other limitations on liability under the Act, however, the burden of establishing this exception is on the governmental entity asserting it as an affirmative defense.  Clark v. S.C. Dep’t of Pub. Safety, 362 S.C. 377, 386, 608 S.E.2d 573, 578 (2005).  Moreover, as an affirmative defense, this exception “must be specifically pled to be considered.”  61A Am. Jur. 2d Pleading § 295 (1999).  See also 71 C.J.S. Pleading § 198 (2000) (“A plea or answer setting up new matter as a defense generally must contain a statement of facts and should be certain and precise.”).

Even if we were to accept the Department’s argument in its reply brief that the question of whether Hart’s accident was covered under the South Carolina Workers’ Compensation Act was a matter of law, we share the trial judge’s concern regarding how the Department attempted to raise this issue.  In its answer, the Department made only a nonspecific reference to “any defense under the South Carolina Tort Claims Act . . . not already pled above.”  At no time during this litigation did the Department expressly assert section 15-78-60(14) as an affirmative defense or as a ground for summary judgment.  Moreover, although Rule 15(b) of the South Carolina Rules of Civil Procedure allows pleadings to be amended as necessary to conform to the evidence, here there was nothing in the record before us on which to base an amendment of the Department’s answer to include the specific affirmative defense that it was entitled to immunity because Hart’s claim should have been covered by workers’ compensation.[2]

Under these circumstances, we do not fault the trial judge for her reservations about deciding this issue.  Absent from the record is any indication before its directed verdict motion that the Department ever intended to rely on section 15-78-60(14) as an affirmative defense.  Cf. Turner v. Cent. Local Sch. Dist., 706 N.E.2d 1261, 1264 (Ohio 1999) (reversing the grant of the defendant school district’s motion to include a statutory immunity defense in part because the district failed to assert the defense in a timely manner and its failure to do so made it reasonable for the plaintiffs to assume the defense would be waived).

2.  The Department also contends the trial judge erred in directing a verdict on its defense that Hart was negligent, thus preventing the jury from apportioning fault on the basis of Hart’s alleged comparative negligence.  We disagree.

Under South Carolina Code section 56-5-760, the driver of an authorized emergency vehicle may “exceed the maximum speed limit if he does not endanger life or property” when appropriate audible and visual signals on the vehicle are activated.  S.C. Code Ann. § 56-5-760(B)(3) (2006).  This section further provides that its protections “do not relieve the driver of an authorized emergency vehicle from the duty to drive with due regard for the safety of all persons.”  Id. § 56-5-760(D). 

On appeal, the Department contends Hart failed to exercise due care for his own safety by (1) pursuing a traffic offender at an excessive rate of speed in the dark and in an area with which he was unfamiliar; (2) following the lead vehicle too closely and failing to maintain a proper lookout; and (3) failing to terminate the search according to the Holly Hill Police Policy and Procedure for police pursuits.  We agree with the trial judge that none of these grounds gave rise to an inference Hart was negligent.

We acknowledge that the pursuit took place at night and that Hart admitted he had exceeded the posted speed limit and did not know the area.  Nevertheless, it was also undisputed that the weather conditions were good and the road on which both vehicles were traveling was straight and paved.  Moreover, there was no evidence that the same accident would not have occurred even if Hart was traveling the speed limit.  See Horton v. Greyhound, 241 S.C. 430, 439, 128 S.E.2d 776, 781 (1962) (“The concurrence of excessive speed with this primary, efficient cause of the collision does not impose liability on the defendants unless, without it, the collision would not have occurred.”).

As to the Department’s allegations that Hart followed the suspect vehicle too closely, the only pertinent evidence is Hart’s testimony that he maintained a following distance of approximately six to eight car lengths consistent with his training.  Furthermore, the only evidence regarding whether Hart kept a proper lookout was his testimony on cross-examination that, contrary to what the Department was trying to establish, his attention was not focused exclusively on the suspect vehicle.  There is no evidence that either Hart or the suspect had driven erratically.  As noted earlier in this opinion, both vehicles had stopped at stop signs twice during the pursuit.

Finally, we reject the Department’s assertion that Hart should have ended the pursuit.  Regardless of whether written procedures warranted termination of the pursuit, the trial judge found “[t]here was no evidence otherwise presented that [Hart] should have abandoned his pursuit due to the endangerment of life or property.”  Although, as the Department noted in its brief, Hart admitted he would have terminated the pursuit for safety reasons if it had continued on the dirt road intersecting the road on which both vehicles were traveling just before the accident, the pursuit ended while both vehicles were still on the paved road and crashed into the woods.  We have found no evidence in the record—and the Department has not directed our attention to any—of hazards appearing before the accident that should have prompted Hart to discontinue the pursuit.

AFFIRMED.

WILLIAMS, THOMAS, and PIEPER, JJ., concur.

[1]  The posted speed limit on the road was fifty-five miles per hour.

[2]  The trial judge observed the record was “completely void as to any evidence of [Hart’s] entitlement to benefits under the South Carolina Workers’ Compensation Act,” and, when arguing his directed verdict motion, counsel for the Department conceded “there’s no evidence in the record in the workers’ compensation claim.”