Patricia B. WRIGHT, Appellant, v. The CITY OF NORTH CHARLESTON, Respondent.
20791
Supreme Court of South Carolina
October 24, 1978
(248 S. E. (2d) 480)
The judgment is accordingly reversed and the cause remanded for entry of judgment in favor of appellant as recommended by the master.
NESS, RHODES and GREGORY, JJ., concur.
LITTLEJOHN, J., not participating.
James E. Gonzales, North Charleston, for respondent.
October 24, 1978.
LEWIS, Chief Justice.
This action was brought, pursuant to
It is the settled law of this State that, except as expressly permitted by statute, municipal corporations are not liable in damages for a tort committed by any of its officers or agents. McKenzie v. City of Florence, 234 S. C. 428, 108 S. E. (2d) 825.
While appellant argues that we should overturn our long standing rule of sovereign immunity, the sole question presented by the exceptions is whether such governmental immunity has been waived by
The pertinent provisions of
Appellant argues that her injuries resulted from a “defect or mismanagement” of the merry-go-round which was “under the control” of the respondent city and, therefore,
The lower court, in sustaining the demurrer, relied upon the later decisions of Hicks v. City of Columbia, 225 S. C. 553, 83 S. E. (2d) 199 (1954) and Furr v. City of Rock Hill, 235 S. C. 44, 109 S. E. (2d) 697 (1959).
While the Haithcock decision, standing alone, might possibly lend support to appellant‘s contention, its authority for any such holding has been completely eroded by subsequent decisions of this court, as conclusively shown by the following from the Hicks case, which deals with the liability of the City of Columbia for injuries sustained by reason of a defect in a swing in a public park within the city:
Appellant relies principally upon the cases of Haithcock v. City of Columbia, 115 S. C. 29, 104 S. E. 335; Irvine v. Town of Greenwood, 89 S. C. 511, 72 S. E. 228, 36 L. R. A., N. S., 363; and Stone v. City of Florence, 94 S. C. 375, 78 S. E. 23, to sustain his contention that a public park is encompassed within the definition of the words ‘street’ and ‘public way’ within the meaning of the statute; and these cases do, by implication at least, lend strong support to this position. However, since these cases were decided, this Court has confined the interpretation of the meaning of the words ‘by reason of defect or mismanagement of anything under the control of the corporation’ as relating to something used to maintain and keep the streets in reasonable repair, for the purpose of safe travel, Reeves v. City of Easley, 167 S. C. 231, 166 S. E. 120, and the recent case of Abernathy v. City of Columbia, 213 S. C. 68, 48 S. E. (2d) 585.
It is useless to unduly extend this Opinion as there is no longer any doubt under the Reeves and Abernathy cases, supra, that for one to sustain an action against a municipality under Section 47-70 [now
The foregoing language from Hicks was subsequently quoted with approval in the Furr case, decided in 1959.
Since the injuries complained of did not arise through a defect in the street or public way or in the maintenance thereof, the present complaint fails to state a cause of action within the scope of
Judgment affirmed.
LITTLEJOHN, RHODES and GREGORY, JJ., concur.
NESS, J., dissents.
NESS, Justice.
For the reasons stated in my dissenting opinion in Boyce v. Lancaster County Natural Gas Authority, 266 S. C. 398, 223 S. E. (2d) 769 (1976), I respectfully dissent.