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DOLAN v. CITY OF CAMDEN

April 16, 1958

EMMA H. DOLAN, APPELLANT,
v.
THE CITY OF CAMDEN AND KERSHAW COUNTY, RESPONDENT, OF WHOM CITY OF CAMDEN IS ALSO APPELLANT.



The opinion of the court was delivered by: Taylor, Justice.

April 16, 1958.

This appeal arises out of an action brought in the Court of Common Pleas for Kershaw County by appellant, Emma H. Dolan, for damages allegedly suffered by her personally by reason of a defect in a street in the City of Camden.

The State and its political subdivisions waived immunity from suit enjoyed by the sovereign and permits recovery of damages arising out of defective highways under their respective control: The State, Section 33-229, Code of Laws of South Carolina, 1952; the County, Section 33-921, Code of Laws of South Carolina, 1952; and the City, Section 47-70, Code of Laws of South Carolina, 1952. However, Section 33-174, Code of Laws of South Carolina. 1952, provides:

"The performance of work within a municipality by the Department shall not result in the assumption by the Department of any liability whatever on account of damages to property, injuries to persons, or death growing out of or in any way connected with such work. None of the provisions of article 6 of this chapter relating to damage claims shall apply to sections of State highways within the corporate limits of municipalities except § 33-234."

Section 33-234, Code of Laws of South Carolina, 1952, provides:

From the foregoing it is clear that the Legislature specifically preserved the State's immunity from suits arising out of construction, reconstruction or maintenance by the State Highway Department of any State Highway within a municipality and at the same time provided that any person suffering damage by reason of such construction shall have a right of action against the municipality. All work of construction, reconstruction, and maintenance by the Highway Department upon any section of a State Highway within the limits of a municipality is performed with the consent and approval of the proper municipal authorities and in no way relieves the municipality of the fundamental responsibility to keep such streets or highways within their limits safe and free from obstruction, Bell v. South Carolina State Highway Department, 204 S.C. 462, 30 S.E.2d 65, and "* * * municipalities which have full and complete control over the streets and highways within their corporate limits are liable in damages for injuries sustained in consequence of their failure to use reasonable care to keep them in a reasonably safe condition for public travel." Terrell v. City of Orangeburg, 176 S.C. 518, 180 S.E. 670, 672; see also Thompson on Negligence, Section 5956, Page 423; and McQuillan on Municipal Corporations, Vol. 19, Section 54.177.

At the time of injury the work was being performed by respondent, Kershaw County, under an agreement entitled "Agreement for Construction of Secondary State Highways by Kershaw County," (under Section 33-165, Code of Laws of South Carolina, 1952) which provides for:

The original contract provided for grading and bituminous surfacing of 2.64 miles outside of but adjacent to the City of Camden and further provided that:

"4. That no surety bond will be required in this case, but the governing board shall erect the necessary barriers and warning signs for the protection of traffic and shall assume all liability the Department might otherwise have in connection with accidents or damage arising from the work herein authorized."

By way of agreement between the Highway Department and the Kershaw County Governing Board, the contract was extended to include the construction of an additional section, from U.S. Route 1 to Haile Street in the City of Camden, this being the portion with which this appeal is concerned, and this agreement provided, among other things, that:

"This additional work is to be performed by the Kershaw County Governing Board in accordance with the terms of the original contract on the above numbered docket (Docket No. 28.335), and payment for this work ...


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