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Clark v. South Carolina Department of Public Safety11/12/2002
enforcement agencies, primarily the latter.
The evidence in the light most favorable to Clark shows Killman testified the pursuit should have been called off after it was obvious Johnson was willing to do whatever it took to get away. Killman stated that, after Johnson attempted to run Bradley off the road and then almost "T-boned" a car at an intersection, Bradley should have called off the pursuit in the interest of public safety. At the time of the fatal crash, Johnson was only five or six miles from the North Carolina border, at which point South Carolina authorities would have had to terminate the pursuit anyway. The heightened dangerousness of the pursuit is particularly evidenced by the fact that Bradley himself admittedly notified dispatchers at one point that he believed a crash was imminent. Although Killman indicated it was an "error in judgment" not to call off the pursuit, we believe the foregoing is some evidence from which a jury could determine Bradley should have called off the pursuit and was grossly negligent in failing to do so. Also, Killman testified that, in accordance with general police standards, a supervisor should always monitor a pursuit and provide an independent assessment of its continued viability. There was no evidence a supervisor did this.
We hold the question of whether the troopers and the supervisors at the Department performed their respective duties or whether there was an "absence of care that is necessary under the circumstances" was a matter singularly for the jury to consider as the trier of fact.
II. Immunity Under Section 15-78-60(5) for Discretionary Acts
The Department next asserts Bradley's conduct was subject to absolute discretionary immunity under section 15-78-60(5) of the Tort Claims Act. This section provides a governmental entity is not liable for a loss resulting from:
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....
"The burden of establishing a limitation upon liability or an exception to the waiver of immunity is upon the governmental entity asserting it as an affirmative defense."
"To establish discretionary immunity, the governmental entity must prove that the governmental employees, faced with alternatives, actually weighed competing considerations and made a conscious choice." "Furthermore, 'the governmental entity must show that in weighing the competing considerations and alternatives, it utilized accepted professional standards appropriate to resolve the issue before them.'" "This standard is inherently factual."
On appeal from the denial of a directed verdict motion, this court should review the evidence in the light most favorable to Clark to see if the evidence yields more than one reasonable inference and the trial court properly submitted the case to the jury. That is, we would consider whether there was an issue of fact as to whether (1) the Department's employees actually weighed competing considerations and made a conscious choice to continue the pursuit, and (2) whether the Department established that, in weighing these alternatives, it applied accepted professional standards.
Clark presented the testimony of his expert in high-speed chases, Samuel Killman, that the Department's employees did not properly balance the competing considerations of capturing a fleeing suspect versus maintaining the public's safety and that they disregarded appropriate standards in failing to terminate the pursuit. The Department attempted to rebut this evidence with
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