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THE STATE OF SOUTH CAROLINA

In The Supreme Court

Rebekah Wooten, a

minor by her, Guardian

ad Litem, Margaret

Wooten, Respondent,

v.

South Carolina

Department of

Transportation f/k/a

South Carolina

Department of

Highways and Public

Transportation, Petitioner.

Margaret Wooten, Respondent,

v.

South Carolina

Department of

Transportation f/k/a

South Carolina

Department of

Highways and Public

Transportation, Petitioner.

ON WRIT OF CERTIORARI TO THE COURT OF

APPEALS

Appeal From Greenville County

Paul M. Burch, Judge

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Opinion No. 24877

Heard November 17, 1998 - Filed January 18, 1999

AFFIRMED AS MODIFIED

Charles E. Carpenter, Jr., of Richardson, Plowden,

Carpenter & Robinson, P.A., of Columbia; and Merl

F. Code, of Code Law Firm, of Greenville, for

petitioner.

W. Harold Christian, Jr., of Christian & Davis, of

Greenville, for respondents.

MOORE, A.J.: We granted a writ of certiorari to review the

Court of Appeals' decision1 regarding petitioner's (DOT's) claim of

immunity under the Tort Claims Act. We affirm as modified herein

FACTS

Twelve-year-old Rebekah Wooten was injured when she attempted to

cross Wade Hampton Boulevard at Memorial Drive on her way home from

school. Rebekah had crossed three lanes of traffic and reached the median

in the middle of the road when the light changed. Although traffic on the

other side of the median waited for Rebekah in two lanes of traffic, a car

approaching in the middle lane struck her before she finished crossing.

Rebekah and her mother (respondents) commenced these actions for

negligence and loss of consortium alleging DOT was negligent in failing to

provide traffic lights that would allow adequate time for a pedestrian to

cross, or provide pedestrian walk signals, or to warn pedestrians of the

hazardous nature of the intersection. The jury returned verdicts for

respondents. DOT appealed the denial of its post-trial motions. The

Court of Appeals affirmed.

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ISSUES

1) Does absolute immunity for highway design apply in this case?

2) Does the evidence establish DOT was entitled to discretionary

immunity for signs, signals, and warning devices as a matter of

law?

DISCUSSION

1) Design immunity

The Tort Claims Act provides certain exceptions to a government

entity's waiver of immunity. Under S.C. Code Ann. § 15-78-60 (15) (Supp.

1997), government entities "are not liable for the design of highways and

other public ways." DOT claimed in post-trial motions it was entitled to

this immunity as a matter of law in this case.

The trial court ruled the applicable immunity was not absolute

immunity for highway design but immunity for the maintenance of traffic

signals under §15-78-60 (15). This section provides immunity for liability

arising from:

absence, condition, or malfunction of any sign, signal, [or]

warning device... 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.... 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, [or]

warning devices ... when the failure is the result of a

discretionary act of the governmental entity.

(Emphasis added).2

On appeal, the Court of Appeals held DOT had design immunity but

it was not perpetual. Once DOT had notice the intersection was

specifically identified as "those used in connection with hazards normally

connected with the use of public ways."

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hazardous, it was no longer immune from liability. Since there was

evidence DOT had notice before the injury in this case, the Court of

Appeals concluded DOT had not established it was entitled to design

immunity as a matter of law and its post-trial motions were properly

denied.

We agree with the result reached by the Court of Appeals but adopt

the reasoning of the trial court. A specific statutory provision prevails

over a more general one. Atlas Food Systems & Serv., Inc. v. Crane., 319

S.C. 556, 462 S.E.2d 858 (1995). Here, the immunity provision regarding

signs and signals is the more specific one applicable to these facts and

therefore controls in this case. Accordingly, the trial judge's ruling was

correct.

2) Discretionary immunity for signs, signals, and warning devices.

As quoted above, § 15-78-60 (15) provides discretionary immunity for

the failure of a government entity to initially place signs, signals, or

warning devices. The Court of Appeals ruled there was conflicting

evidence on this issue and it was properly submitted to the jury. We

agree.

Discretionary immunity is contingent on proof the government entity,

faced with alternatives, actually weighed competing considerations and

made a conscious choice using accepted professional standards. Summer v.

Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997); Strange v. South Carolina

Dept. of Highways and Pub. Transp., 314 S.C. 427, 445 S.E.2d 439 (1994).

Rochelle Garrett, an assistant district traffic engineer, testified for

DOT. Garrett testified there was no history of complaints regarding

pedestrian problems at this intersection and the intersection was "not

considered a pedestrian area." No pedestrian count was done at this

intersection, however, and Garrett admitted the intersection was

dangerous for pedestrians.

Because the traffic signal is traffic-actuated, the crossing time

allowed a pedestrian varies. The minimum time allowed is eight seconds

to cross the width of the road which is 112 feet. This crossing time would

therefore require a crossing speed of fourteen feet per second. Garrett

testified a reasonable crossing speed is four feet per second and the

median is not designed for pedestrians to wait in the middle of the road.

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Further, Garrett testified DOT guidelines mandate that pedestrian

signals and detectors be installed -when there is not adequate time to cross

even when such signals are not otherwise warranted because of the

amount of pedestrian traffic. The guidelines specify that pedestrians

should be assured sufficient time to cross the roadway at an intersection

controlled by traffic lights. Whether DOT complied with these guidelines

or any appropriate professional standard was at least a jury issue under

Garrett's own testimony. The Court of Appeals correctly held

discretionary immunity was a jury issue in this case.

AFFIRMED AS MODIFIED.

FINNEY, C.J., TOAL, WALLER, and BURNETT, JJ.. concur.

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