Was a South Carolina town protected from tort liability when it opened a hurricane shelter?

Plain-English summary

In 1999, the South Carolina Attorney General's office concluded that the Tort Claims Act, together with the state's civil-defense shelter provision, preserved a municipality's immunity when operating a hurricane shelter under the circumstances described. The shelter provision protected a person who voluntarily allowed property to be used as a public shelter without compensation. It did not expressly name governments. The office reasoned that the Tort Claims Act did not make a governmental entity more liable than a private person in like circumstances.

The opinion offered a second, qualified ground. It said a town's shelter operation would likely fall within the Act's exception for losses arising from emergency-preparedness activities, while acknowledging that no South Carolina case was directly on point. The letter was expressly an informal opinion of the signing attorney.

Currency note

This opinion was issued in 1999. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did the shelter statute expressly grant immunity to a town? A: No. The opinion said its text referred to a person owning or controlling property, without expressly mentioning government entities. It reached the municipal conclusion by reading that provision with the Tort Claims Act.

Why did the Tort Claims Act matter?
A: The office read it to limit a government's liability to no more than that of a private individual in like circumstances. That reading extended the shelter provision's protection to the town in the situation considered.

Did the opinion identify another possible protection?
A: Yes. It said operation of a hurricane shelter in similar circumstances would likely qualify as emergency preparedness under the Act's liability exception.

Background and statutory framework

Mount Pleasant's town attorney asked whether the public-shelter provision applied to a municipal hurricane shelter and whether the Tort Claims Act changed the answer. The opinion analyzed the shelter provision alongside the Act's private-person comparison and emergency-preparedness exception. Its conclusion addressed the shelter arrangement presented, rather than every injury connected to a municipal facility.

Citations and references

The opinion discussed the shelter provision, Sections 15-78-40 and 15-78-50(b) on governmental liability, and Section 15-78-60(19) on emergency preparedness.

Source

• Landing page: https://www.scag.gov/opinions/opinions-archive/october-29-1999/
• Original PDF: https://www.scag.gov/wp-content/uploads/2013/11/99oct-29-young.pdf

Original opinion text

The State of South Carolina

OFFICE OF THE ATTORNEY GENERAL
CH A RLI E C O NDO N
ATTO RNEY G ENERAL

October 29, 1999
R. Allen Young, Esquire
Mount Pleasant Town Attorney
Post Office Box 745
Mount Pleasant, South Carolina 29465
Dear Mr. Young,
Thank you for your letter, dated September 21, 1999, to this Office, which has been referred to me for a response. You ask for an opinion about the applicability of South Carolina Code Section 25-9-120 to a municipality's operation of a hurricane shelter. You also ask whether this statute has been affected by the enactment of the South Carolina Tort Claims Act. South Carolina Code Section 29-9-120 reads: No person owning or controlling property who voluntarily and without compensation permits such property to be used as a public shelter for civil defense purposes shall be civilly liable for the injury or death of any person who may be injured or killed on such premises, or for the loss of or damage to the property of any person on such premises, during any time such premises are actually being used as a public shelter. The statute only protects from liability a "person" owning or controlling property. Government entities are not expressly referred to in this provision and, thus, we must also consider other statutes in our analysis. Traditionally, governmental entities were protected from liability under the aegis of the sovereign immunity of the State. However, in 1986 the General Assembly, recognizing that total immunity on the part of the government is no longer warranted, enacted the South Carolina Tort Claims Act, § 15-78-10 et seq. The Act waives governmental immunity for certain torts committed by governmental entities, but also contains exceptions to this waiver ofimmunity. Thus, the Act both expressly preserves and extinguishes sovereign immunity in certain circumstances. The provisions of the Tort Claims Act specifically compare the liability of a governmental entity to that of a private individual. Section 15-78-40 states: The State, an agency, a political subdivision, and a governmental entity are liable for their

./)

....

R~\~81~~ c_ q E" N.:f Bt : ll .D IS(; • PnsT 0 FFWE Bo.x 11549 • Cou ·~1HL. S.C 292 I 1- I .'i 4') • T1·:J.l-.l' ll O'<E Xll.1- n c+-.1'170 • f'A <·~;J\111 1:: Xll.l -2) .\ -62KJ

!Ge_~ c~ ;J~

Allen Young
Page2
October 29. 1999

torts in the same manner and to the same extent as a private individual under like circumstances, subject to the limitations upon liability and damages, and exemptions from liability and damages, contained herein. Furthermore, Section 15-78-50 (b) says: In no case is a governmental entity liable for a tort of an employee where that employee, if a private person, would not be liable under the laws of this State.

I

Read together these provisions allow for a scope of governmental liability that is never greater than the liability for private individuals. Thus, because the Tort Claims Act provides for liability no greater than that of a private individual, the qualified immunity afforded to private individuals volunteering their property during an emergency is extended to a municipality. In this instance the Tort Claims Act preserves the shield of governmental immunity by extending its reach to an immunity expressly granted to private individuals. Cf Brooks v. Northwood Little League. Inc. 327 S.C. 400, 489 S.E.2d 647 (S.C. Ct. App. 1997) (holding government may avail itself of immunity under the Recreational Use Statute). In addition to the analysis above, it is likely that governmental immunity is also preserved in these circumstances by the exceptions to the waiver of immunity found in the Tort Claims Act. A governmental entity is not liable for a loss resulting from "emergency preparedness activities." Section 15-78-60(19). South Carolina Code Section 25-9-120, which grants an exemption from liability to persons permitting property to be used as a public shelter, is located in the Chapter entitled "Emergency Measures." Although there appears to be no South Carolina case law on point, a municipality operating a hurricane shelter in similar circumstances would likely be considered an emergency preparedness activity and, thus, fall within the ambit of the exception. In short, it is the opinion of this Office that the Tort Claims Act, in conjunction with South Carolina Code of Laws Section 25-9-120, preserves the immunity of a municipality in the operation of a hurricane shelter. This letter is an informal opinion only. It has been written by a designated Senior Assistant Attorney General and represents the position of the undersigned attorney as to the specific question asked. It has not, however, been personally scrutinized by the Attorney General not officially published in the manner of a formal opinion. With kind regards, I remain

,v~~~
Robert D. Cook
Assistant Deputy Attorney General