South Carolina General Assembly
107th Session, 1987-1988

Bill 732


                    Current Status

Bill Number:               732
Ratification Number:       368
Act Number                 352
Introducing Body:          Senate
Subject:                   Relating to extending the time within
                           which certain persons under disability may
                           bring a civil action
View additional legislative information at the LPITS web site.


(Text matches printed bills. Document has been reformatted to meet World Wide Web specifications.)

(A352, R368, S732)

AN ACT TO AMEND SECTION 15-3-40, CODE OF LAWS OF SOUTH CAROLINA, 1976, RELATING TO EXTENDING THE TIME WITHIN WHICH CERTAIN PERSONS UNDER DISABILITY MAY BRING A CIVIL ACTION, SO AS TO PROVIDE THAT AN ACTION ACCRUING UNDER THE SOUTH CAROLINA TORT CLAIMS ACT IS SO EXTENDED; SECTION 15-78-20, AS AMENDED, RELATING TO LEGISLATIVE FINDINGS REGARDING THE TORT CLAIMS ACT, SO AS TO PROVIDE FOR ADDITIONAL LEGISLATIVE FINDINGS IN REGARD TO BRINGING GOVERNMENTALLY EMPLOYED PHYSICIANS AND DENTISTS UNDER THE PROVISIONS OF THE ACT; SECTION 15-78-30, RELATING TO DEFINITIONS UNDER THE TORT CLAIMS ACT, SO AS TO REVISE THE DEFINITION OF "EMPLOYEE" AND TO DEFINE "SCOPE OF STATE EMPLOYMENT"; SECTION 15-78-60, RELATING TO EXCEPTIONS TO THE WAIVER OF IMMUNITY, SO AS TO FURTHER PROVIDE FOR THESE EXCEPTIONS IN REGARD TO HIGHWAYS AND PUBLIC WAYS AND ACTIVITIES OF THE SOUTH CAROLINA STATE GUARD; SECTION 15-78-70, RELATING TO THE LIABILITY FOR AN ACT OF A GOVERNMENT EMPLOYEE, SO AS TO FURTHER PROVIDE FOR THE MANNER IN WHICH PARTY DEFENDANTS ARE NAMED AND FOR THIS LIABILITY IN REGARD TO GOVERNMENTALLY EMPLOYED PHYSICIANS AND DENTISTS; SECTIONS 15-78-100 AND 15-78-110, RELATING TO WHEN AN ACTION UNDER THE TORT CLAIMS ACT MUST BE INSTITUTED, SO AS TO FURTHER PROVIDE FOR THIS TIME; SECTION 15-78-120, RELATING TO LIMITATIONS ON THE AMOUNT OF RECOVERY, SO AS TO FURTHER PROVIDE FOR THESE LIMITATIONS AND TO INCREASE THESE LIMITATIONS IN REGARD TO GOVERNMENTALLY EMPLOYED PHYSICIANS AND DENTISTS; AND SECTION 59-67-710, RELATING TO CONTRACTS OF INSURANCE ON STATE-OWNED SCHOOL BUSES AND THE BENEFITS AND LIMITS OF LIABILITY THEREON, SO AS TO FURTHER PROVIDE FOR THESE LIMITS AND LIABILITY.

Be it enacted by the General Assembly of the State of South Carolina:

Extension of actions

SECTION 1. Section 15-3-40 of the 1976 Code is amended to read:

"Section 15-3-40. If a person entitled to bring an action mentioned in Article 5 of this Chapter or an action under Chapter 78 of this Title except for a penalty or forfeiture or against a sheriff or other officer for an escape be at the time the cause of action accrued either:

(1) within the age of eighteen years;

(2) insane; or

(3) imprisoned on a criminal or civil charge or in execution under the sentence of a criminal court for a less term than his natural life;

The time of such disability is not a part of the time limited for the commencement of the action, except that the period within which the action must be brought cannot be extended:

(1) more than five years by any such disability, except infancy; nor

(2) in any case longer than one year after the disability ceases."

Physicians and dentists liability

SECTION 2. Section 15-78-20 of the 1976 Code is amended by adding a new subsection (g) to read:

"(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."

"Employee" definition revised

SECTION 3. Section 15-78-30(c) of the 1976 Code is amended to read:

"(c) Prior to January 1, 1989, 'Employee' means any officer, employee, or agent of the State or its political subdivisions, 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 does not in and of itself create an employer and employee relationship between the State 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 or its political subdivisions, 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 does not in and of itself create an employer and employee relationship between the State 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."

"Scope of state employment" definition added

SECTION 4. Section 15-78-30(i) of the 1976 Code is amended to read:

"(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."

Immunity exceptions for public ways revised

SECTION 5. Section 15-78-60(a)(15) of the 1976 Code is amended to read:

"(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 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 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 by the particular governmental entity responsible for the maintenance within a reasonable time after actual or constructive notice;"

Immunity for South Carolina State Guard

SECTION 6. Section 15-78-60(a)(19) of the 1976 Code is further amended to read:

"(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;"

Naming of party defendants and liability of physicians and dentists

SECTION 7. Section 15-78-70(c) of the 1976 Code is amended to read:

"(c) Prior to 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 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."

Time for bringing actions

SECTION 8. Section 15-78-100(a) of the 1976 Code is amended to read:

"(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 filed and disallowed or rejected an action for damages filed under this chapter, based upon the same occurrence as the claim, may be instituted within three years after the loss was or should have been discovered."

Time for bringing actions

SECTION 9. Section 15-78-110 of the 1976 Code is amended to read:

"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 years after the date the loss was or should have been discovered; provided, that if the claimant first filed a claim pursuant to this chapter 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."

Limits of liability

SECTION 10. Section 15-78-120(a) of the 1976 Code is amended to read-

"(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."

Limits of liability

SECTION 11. Section 59-67-710(3)(a) of the 1976 Code is amended to read:

"(a) For any action or claim for damages brought under the provisions of Chapter 78 of

Title 15 of the 1976 Code, the liability may not exceed the following limits:

(i) Except as provided in Section 59-67-710(3)(a)(iii), no person may 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.

(ii) Except as provided in Section 59-67-710(3)(a)(iv), the total sum recovered hereunder arising out of a single occurrence may not exceed five hundred thousand dollars regardless of the number of agencies or political subdivisions or claims or actions involved.

(iii) 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.

(iv) 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.

(v) The provisions of Section 59-67-710(3)(a)(iii) and (3)(a)(iv) 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."

Time effective

SECTION 12. This act takes effect upon approval by the Governor except that the provisions of Section 15-78-120(a)(3), (4), and (5) as contained in Section 10, and provisions of Section 59-67-710(3)(a)(iii), (iv) and (v) as contained in Section 11, take effect on January 1, 1989. The provisions of this act apply only to those causes of action arising or accruing on or after the applicable effective date of this act.