James Marlowe v. SCDOT ( 2023 )

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
James Marlowe and Lori Marlowe, Appellants,
v.
South Carolina Department of Transportation (SCDOT),
Respondent.
Appellate Case No. 2020-000614
Appeal from Florence County
Michael G. Nettles, Circuit Court Judge
Opinion No. 6028
Heard June 7, 2023 – Filed September 27, 2023
AFFIRMED IN PART, REVERSED IN PART, AND
REMANDED
Joseph Clay Hopkins, of Charleston, for Appellants.
John B. McCutcheon, Jr., of Thompson & Henry, PA, of
Conway; Carmen Vaughn Ganjehsani, of Richardson
Plowden & Robinson, PA, of Columbia; and S. Ashley
Gwin, of Conway; all for Respondent.
GEATHERS, J.: In this action, Appellants James Marlowe and Lori Marlowe
appeal the circuit court's order granting Respondent South Carolina Department of
Transportation (SCDOT)'s motion for summary judgment. The Marlowes argue
summary judgment was inappropriate because (1) SCDOT's negligence was a
question for the jury; (2) the acts performed by SCDOT were sufficient to support a
finding of inverse condemnation; and (3) the Stormwater Management and Sediment
Reduction Act (Stormwater Act) does not apply. We affirm in part, reverse in part,
and remand.
FACTS
The Marlowes are the owners of property located in Pamplico, South Carolina
(the Property). In August 2013, SCDOT conducted a hydraulic design study in
preparation for a project to widen sections of U.S. Highway 378 (the Project). As a
part of the study, the SCDOT examined various conditions related to the roadway
abutting the Property and concluded that existing bridge box culverts in the area
would continue to protect against a 100-year flood event. 1 SCDOT also planned to
replace the existing culvert near the Property with a larger one to alleviate drainage
issues associated with the Project. While the specific dates are unclear, the parties
agree that construction had begun in 2015 and that by 2016, the new elevated
roadway had been laid adjacent to the existing highway.
On October 4, 2015, torrential rain poured across South Carolina during what
came to be known as "the thousand-year-flood." 2 During this cataclysmic event, the
Property experienced high levels of flooding. The Marlowes salvaged some of their
belongings and moved out of their residence. After extensive work was performed
on the Property with assistance from the Federal Emergency Management Agency,
1
To meet SCDOT's hydraulic requirements, a culvert must be able to divert water
away from one side of a highway to another up to a "100-year flood."
The term "100-year flood" is used in an attempt to simplify
the definition of a flood that statistically has a 1-percent
chance of occurring in any given year. Likewise, the term
"100-year storm" is used to define a rainfall event that
statistically has this same 1-percent chance of occurring.
Water Science School, The 100-Year Flood, U.S. Geological Surv.,
https://www.usgs.gov/special-topics/water-science-school/science/100-year-flood
(June 7, 2018).
2
Referring to the 2015 weather event as the "thousand-year flood" is a misnomer
because, as will be discussed later in this opinion, the likelihood that this event will
occur in a given year is more than 1 in 1,000. Thus, to avoid confusion, we will refer
to this event as the "2015 event."
the Marlowes were able to move back to the Property. On October 5, 2016,
approximately eight weeks after the Marlowes moved back, Hurricane Matthew
(2016 event) hit South Carolina and the Property flooded again with approximately
15 to 16 inches of rain. The Marlowes have been unable to return to the Property.
On February 22, 2019, at the request of the Marlowes' counsel, Applied
Building Sciences (ABS) conducted an engineering evaluation assessing the impact
of the flood on the property (ABS report).
Using data collected from volunteer precipitation measuring stations 3, ABS
discovered that during the 2015 event,
[t]he two stations closest to the subject property recorded
a peak 24-hour precipitation of 5.96[]inches to
6.52[]inches, which corresponds to a return interval 4 of
greater than 10[]years but less than 25[]years; [and] . . .
[t]he two stations closest to the subject property recorded
a 4-day precipitation of 12.76[]inches to 14.16[]inches,
3
These stations are commonly known as "CoCoRaHS stations." According to the
CoCoRaHs website, "CoCoRaHS is an acronym for the Community Collaborative
Rain, Hail and Snow Network. CoCoRaHS is a unique, non-profit, community-
based network of volunteers of all ages and backgrounds working together to
measure and map precipitation (rain, hail and snow)." About Us, Cmty.
Collaborative Rain, Hail & Snow Network, https://www.cocorahs.org/Content.asp
x?page=aboutus (last visited Sept. 25, 2023).
4
"The recurrence [or return] interval is based on the probability that the given event
will be equaled or exceeded in any given year." Floods: Recurrence intervals and
100-year floods, U.S. Geological Surv., https://www.usgs.gov/centers/new-jersey-
water-science-center/floods-recurrence-intervals-and-100-year-floods (last visited
Sept. 25, 2023). At each return interval, precipitation frequency estimates vary by
time. For example, at the Property's location, a 100-year event occurs when 9.346
inches of rain fall within the peak 24 hours of a storm. See NOAA Atlas 14 Point
Precipitation Frequency Estimates: SC, NOAA's Nat'l Weather Serv.:
Hydrometeorological Design Studies Ctr., https://hdsc.nws.noaa.gov/pfds/pfds_ma
p_cont.html?bkmrk=sc (last visited Sept. 25, 2023). However, a 100-year event also
occurs when 11.6 inches of rain fall within the peak four days of a storm. See id.
corresponding to a return interval of between 200[] to
500[]years[.]
ABS found that during the 2016 event,
[t]he two stations closest to the subject property recorded
a peak 24-hour precipitation of 6.24[]inches to
6.30[]inches, which corresponds to a return interval of
greater than 10[]years but less than 25[]years; [and] . . .
[t]he station closest to the subject property with four
consecutive days of data available recorded a total of
11.37[]inches, corresponding to a return interval of
between 100[] to 200[]years[.] 5
In 2016, SCDOT received a customer service complaint from the Marlowes
asking for an explanation of some of the design elements of the Project. Brian Dix,
the program manager of the project, called the Marlowes to explain the Project's
construction status. Specifically, Dix explained that a new culvert was being
installed that should assist with drainage, but that the culvert could not be fully
implemented until a nearby bridge over the Lynches River was completed. Dix
stated that the bridge's construction needed to be prioritized due to traffic difficulties.
In January 2017, the bridge was completed, the old roadway was removed,
and the new culvert was fully constructed to support the new elevated highway.
Later that year, SCDOT began to receive complaints from property owners affected
by the 2015 and 2016 weather events. In response to these complaints, SCDOT
conducted a more detailed survey of the area that included the Property. Based on
more accurate data than was available in their original survey conducted in 2013,
SCDOT found that before the construction began, the existing culvert would be at
capacity when impacted by "a flood associated with the 25-year return interval and
potentially the ten-year interval." Floods of greater magnitude would result in a
phenomenon known as "overtopping." Overtopping occurs where an overburdened
drainage system fails to divert water away from a roadway and as a result, the
roadway becomes flooded with the excess water.
5
We note that the second closest station with 4-day peak range data available
recorded a total of 13.7 inches corresponding to a return interval of 200 to 500 years.
On May 3, 2017, the Marlowes brought this action against the SCDOT,
Southern Asphalt, Inc., and United Infrastructure Group, Inc., alleging causes of
action for inverse condemnation, conversion, due process, and negligence.
According to the Marlowes, two consent orders were later filed dismissing all claims
against Southern Asphalt, Inc., and United Infrastructure Group, Inc. 6
On February 10, 2020, a hearing was held in response to SCDOT's motion for
summary judgment. On March 25, 2020, the circuit court issued an order granting
the motion. In its order, the circuit court included the following excerpt from the
deposition testimony of Jason Gregorie, the Marlowes' expert witness and a
representative of ABS.
[I]f the prior U.S. 378 existed and the new U.S. 378 had
not been constructed[,] I can say – I do say to a reasonable
degree of engineering certainty that the flood depth would
have been less on the [P]roperty, and I believe the impact
on the [P]roperty would have been less. [I]t's possible that
it would have been prevented [altogether]. (Gregorie
depo, page 77)
I can say to a reasonable degree of engineering certainty
that the construction project contributed to the flooding. I
believe that it increased the flood depth on the property,
but I cannot say definitely that if the project had not
existed[,] that it would have completely prevented the
flooding. (Gregorie depo, page 79)
A: Well, . . . to a reasonable degree of certainty, I
[believe] that [the Project] has affected . . . the flood
depth of the property. I think [] that it . . . may have
or there was a possibility it would have prevented
the flooding inside the structure altogether.
Q: May have?
A. That's correct.
6
These consent orders are not in the record before us.
Q: So[,] . . . you agree that even with the old [highway]
with these two rain events[,] the [P]roperty still
could have flooded?
A: It's possible, yes.
(Gregorie depo, page 84)
(Emphasis removed). This appeal followed.
ISSUES ON APPEAL
I. Did the circuit court err in granting summary judgment on SCDOT's
liability under the Tort Claims Act (TCA)?
II. Did the circuit court err in granting summary judgment on whether
SCDOT's conduct amounted to an affirmative, positive, aggressive act for
the purposes of inverse condemnation?
III. Did the circuit court err in granting summary judgment under the
Stormwater Management and Sediment Reduction Act?
STANDARD OF REVIEW
"In reviewing the grant of a summary judgment motion, this court applies the
same standard which governs the trial court." Hawkins v. City of Greenville, 358
S.C. 280, 289, 594 S.E.2d 557, 562 (Ct. App. 2004). "The proper standard [under
Rule 56(c)] is the genuine issue of material fact standard." Kitchen Planners, LLC
v. Friedman, Op. No. 28173 (S.C. Sup. Ct. filed Aug. 23, 2023) (Howard Adv. Sh.
No. 33, 11, 17) (internal quotations omitted) (rejecting the "mere scintilla" standard
for summary judgment). "Summary judgment is proper when 'there is no genuine
issue as to any material fact and . . . the moving party is entitled to a judgment as a
matter of law.'" Hawkins, 358 S.C. at 289, 594 S.E.2d at 562 (quoting Rule 56(c),
SCRCP). "The party seeking summary judgment has the burden of clearly
establishing the absence of a genuine issue of material fact." Id. at 288, 594 S.E.2d
at 561 (quoting McNair v. Rainsford, 330 S.C. 332, 342, 499 S.E.2d 488, 493 (Ct.
App. 1998)). "In determining whether any triable issues of fact exist, the evidence
and all inferences which can be reasonably drawn therefrom must be viewed in the
light most favorable to the nonmoving party." Id. (quoting Lanham v. Blue Cross &
Blue Shield of South Carolina, Inc., 349 S.C. 356, 361–62, 563 S.E.2d 331, 333
(2002)). "Summary judgment is not appropriate where further inquiry into the facts
of the case is desirable to clarify the application of the law." Ray v. City of Rock
Hill, 434 S.C. 39, 45, 862 S.E.2d 259, 262 (2021) (quoting Lanham, 349 S.C. at 362,
563 S.E.2d at 333). "When the circuit court grants summary judgment on a question
of law, we review the ruling de novo." Stoneledge at Lake Keowee Owners' Ass'n,
Inc. v. Builders FirstSource-Se. Grp., 413 S.C. 630, 634–35, 776 S.E.2d 434, 437
(Ct. App. 2015).
LAW/ANALYSIS
I. Tort Claims Act
The Marlowes argue that the circuit court erred in finding that SCDOT was
not liable for damages under the TCA, specifically, S.C. Code Ann. § 15-78-60(2005). We disagree.
A. Maintenance and Design Immunity
The Marlowes argue that because the existing bridge box culvert had a defect
or condition and the defect or condition was not cured after adequate notice, SCDOT
is liable for the Marlowes' damages.
"The [TCA] waives sovereign immunity for torts committed by the State, its
political subdivisions, and governmental employees acting within the scope of their
official duties." Bayle v. S.C. Dep't of Transp., 344 S.C. 115, 121, 542 S.E.2d 736,
739 (Ct. App. 2001). However, section 15-78-60 of the TCA provides a list of
exceptions to the state's wavier of sovereign immunity.
Under section 15-78-60(15), "[g]overnmental entities are not liable for the
design of highways and other public ways." Further,
[g]overnmental 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[.]
Id. Portions of a highway under construction are still under design and are not yet
subject to maintenance. See Summer v. Carpenter, 328 S.C. 36, 44–45, 492 S.E.2d
55, 59 (1997) (finding that because an "intersection was still under
construction[,] . . . the intersection was still under design and not subject to
maintenance by [SCDOT].").
Before construction began on the Project, SCDOT's hydraulic design study
found no functional deficiencies with the existing culvert. Because SCDOT was not
informed of a defect or condition by alternative means, and was not aware of any
potential deficiencies until the 2017 study, SCDOT could not have been put on
notice as required by section 15-78-60(15). Once construction began, the Project
was "under design and not . . . subject to maintenance." Summer, 328 S.C. at 44–
45, 492 S.E.2d at 59. Any alleged defects or conditions arising during this time—
including the 2015 and 2016 weather events—were not yet subject to maintenance
and are thereby protected by design immunity. Therefore, under section 15-78-
60(15), the SCDOT is not liable for any damages which occurred during or before
the construction process.
B. Discretionary Immunity
The Marlowes argue that the question of whether SCDOT or its employees
caused the flooding to the Property was a question for the jury. SCDOT argues that
its and its employees' actions were protected by discretionary immunity. We agree
with SCDOT.
1. Preservation
The Marlowes assert that SCDOT's discretionary immunity argument is
unpreserved because it was not raised and ruled upon by the circuit court. We
disagree.
"[I]t is not always necessary for a respondent—as the winning party in the
lower court—to present his issues and arguments to the lower court and obtain a
ruling on them in order to preserve an issue for appellate review." I'On, L.L.C. v.
Town of Mt. Pleasant, 338 S.C. 406, 420, 526 S.E.2d 716, 723 (2000). This approach
is in keeping with the view, as expressed in Rule 220(c), SCACR, that an appellate
court may affirm the lower court's judgment for any reason appearing in the record
on appeal.
2. Merits
Under the TCA, a governmental entity is not liable for loss resulting from "the
exercise of discretion or judgment by the governmental entity or employee or the
performance or failure to perform any act or service which is in the discretion or
judgment of the governmental entity or employee[.]" § 15-78-60(5).
In Hawkins v. City of Greenville, a property suffered flooding damage after a
record rainfall event. 358 S.C. at 287, 594 S.E.2d at 561. The property owner sued
the city of Greenville arguing in part that the city was negligent in failing to replace
drainage pipes after allowing the development of neighboring parcels which altered
the elevation and added strain to the existing pipes. Id. at 291, 594 S.E.2d at 562–
63. Our court found that the decision was within the city's discretion, noting that
[t]he duties of the municipal authorities in adopting a
general plan of drainage, and determining when and where
sewers shall be built, of what size and at what level, are of
a quasi[-]judicial nature, involving the exercise of
deliberate judgment and large discretion, and depending
upon considerations affecting the public health and
general convenience throughout an extensive territory;
and the exercise of such judgment and discretion in the
selection and adoption of a general plan or system of
drainage is not subject to revision by a court or jury in a
private action for not sufficiently draining a particular lot
of land.
Id. at 294, 594 S.E.2d at 564. (quoting City of Tyler v. Likes, 962 S.W.2d 489, 501
(Tex. 1997)).
Here, the flooding incident is similar to the events that unfolded in Hawkins.
The process of altering the highway elevation near the property increased the risk of
flooding to the surrounding areas. SCDOT had plans to install the new culvert
during the construction process; however, the new culvert was not installed until
after the two major weather events. Like the general plan adopted in Hawkins, the
adoption and execution of SCDOT's drainage plans are of a quasi-judicial nature not
subject to revision by our courts. Therefore, SCDOT and its individual employees
have discretionary immunity from the Marlowes' negligence claim.
II. Inverse Condemnation
The Marlowes argue that the circuit court erred in granting summary judgment
on their inverse condemnation claim. 7 We agree.
"Inverse condemnation is a cause of action against a governmental defendant
to recover the value of property which has been taken in fact by the governmental
defendant, even though no formal exercise of the power of eminent domain has been
attempted by the taking agency." Hawkins, 358 S.C. at 290, 594 S.E.2d at 562. "To
establish an inverse condemnation, a plaintiff must show: '(1) an affirmative,
positive, aggressive act on the part of the governmental agency; (2) a taking; (3) the
taking is for a public use; and (4) the taking has some degree of permanence.'" Id.
(quoting Marietta Garage, Inc. v. South Carolina Dep't of Pub. Safety, 352 S.C. 95,
101, 572 S.E.2d 306, 308 (Ct. App. 2002)).
A. Affirmative, Positive, and Aggressive Act
The Marlowes first argue that there was a genuine issue of material fact that
SCDOT's conduct in this case amounted to an affirmative, positive, aggressive act.
We agree.
"[T]o prevail in an inverse condemnation action, 'a plaintiff must prove an
affirmative, aggressive, and positive act by the government entity that caused the
7
The Marlowes also argue that the circuit court erred in including inverse
condemnation in its order because it was not raised in SCDOT's motion for summary
judgment. "[T]he [c]ircuit [c]ourt may grant a motion for summary judgment on a
ground not included in the notice of the motion if the ground is fully argued before
the court without objection." Turbeville v. Floyd, 288 S.C. 171, 174, 341 S.E.2d
651, 652–53 (Ct. App. 1986). Although counsel for the Marlowes brought this
deficiency to the court's attention, counsel proceeded on the merits of inverse
condemnation without obtaining a ruling from the court. See State v. Black, 319
S.C. 515, 521, 462 S.E.2d 311, 315 (Ct. App. 1995) ("The proper course to be
pursued when counsel makes an improper argument is for opposing counsel to
immediately object and to have a record made of the statements or language
complained of and to ask the court for a distinct ruling thereon."); cf Dixon v. Ford,
362 S.C. 614, 625, 608 S.E.2d 879, 885 (Ct. App. 2005) (finding that a proper
objection to a jury charge "requires an objection on the record, opportunity for
discussion, and a specific ruling by the trial court"). Therefore, the circuit court did
not err in including inverse condemnation in its order.
alleged damage to the plaintiff's property.'" Ray, 434 S.C. at 47, 862 S.E.2d at 263
(quoting WRB Ltd. P'ship v. Cnty of Lexington, 369 S.C. 30, 32, 630 S.E.2d 479, 481
(2006)). An "affirmative act" only amounts to an "affirmative, positive, aggressive
act" when it has been proven to have caused or precipitated the damage in question.
See id at 47–48, 862 S.E.2d at 264. Also, "[a]llegations of mere failure[s] to act are
insufficient." Hawkins, 358 S.C. at 291, 594 S.E.2d at 563. "If a genuine issue of
material fact exists as to whether the government entity committed an affirmative,
positive, aggressive act causing damage to private property, summary judgment is
not proper." Ray, 434 S.C. at 45, 862 S.E.2d at 262.
The focus of the Marlowes' complaint is SCDOT's alleged failure to install an
adequate culvert and its construction of an elevated highway. The failure to install
an adequate culvert is, by its very nature, not an affirmative act. The construction
of an elevated highway is an affirmative act, 8 but whether it is an "affirmative,
positive, aggressive act" for the purposes of inverse condemnation depends on
causation. See Ray, 434 S.C. at 47–48, 862 S.E.2d at 264 (observing the distinction
made in Hawkins between mere affirmative acts and "affirmative, positive,
aggressive" acts causing damage for purposes of inverse condemnation).
The Marlowes argue that there is evidence in the record that could suggest
that the construction of the elevated highway caused the flooding on the property.
We agree.
By SCDOT's own assessment conducted in January 2017, the existing culvert
would be at capacity during a storm with a 25-year or greater return interval and all
excess floodwater would soon rise to the elevation of the existing highway. At this
point, the excess water would overtop the existing highway, acting as an additional
outlet for the water to escape the Property.
However, the new roadway construction project was built adjacent to, and
almost two feet above, the existing roadway. The Marlowes allege that during a
storm with a 25-year or greater return interval, the new elevated roadway acted as a
barrier to the excess floodwater that would have previously been able to exit the
Property via overtopping. According to the eleven nearest volunteer precipitation
measuring stations that had four-day precipitation data available, the October 2015
storm ranged from a 100- to 200-year return interval at a minimum and a 200- to
8
Cf. Hawkins, 358 S.C. at 291, 594 S.E.2d at 563 (finding that the replacement of a
double-box culvert with a large arched pipe and installation of riprap material were
affirmative acts).
500-year return interval at a maximum. In comparison, the October 2016 storm
ranged from a 200-year to 500-year return interval at a minimum and greater than a
1,000-year return interval at a maximum. Thus, both of these events produced
floodwater that exceeded the capacity of the existing culvert at the time of the
weather events.
However, it is less clear if, and to what extent, the flooding on the property
could have been averted had the new, elevated roadway not been built. Jason
Gregorie, the Marlowes' expert witness, testified to the following:
I can say to a reasonable degree of engineering certainty
that the construction project contributed to the flooding. I
believe that it increased the flood depth on the property,
but I cannot say definitely that if the project had not
existed that it would have completely prevented the
flooding.
....
I think I say that it may – may have or there was a
possibility it would have prevented the flooding inside the
structure altogether.
We find that these statements demonstrate a genuine dispute of material fact
as to whether the construction caused the flooding of the Property. See Kitchen
Planners, LLC v. Friedman, Op. No. 28173 (S.C. Sup. Ct. filed Aug. 23, 2023)
(Howard Adv. Sh. No. 33, 11, 17). Also, further inquiry into the cause of the
flooding is necessary to clarify whether the construction of the elevated highway
was an affirmative, positive, aggressive act. See Ray, 434 S.C. at 45, 862 S.E.2d at
262 ("Summary judgment is not appropriate where further inquiry into the facts of
the case is desirable to clarify the application of the law." (quoting Lanham, 349 S.C.
at 362, 563 S.E.2d at 333)). Therefore, viewed in the light most favorable to the
Marlowes, Gregorie's statements create a genuine issue of material fact as to whether
the highway construction amounted to an affirmative, positive, aggressive act for the
purposes of inverse condemnation.
B. Legitimate Government Actions
Alternatively, the circuit court concluded that the Marlowes failed to
demonstrate that an affirmative, positive, aggressive act occurred because the
installation of culverts and construction to public roadways are "legitimate
government actions" under Kiriakides v. Sch. Dist. of Greenville Cnty., 382 S.C. 8,
675 S.E.2d 439 (2009). This was in error.
"An inverse condemnation may result from the government's physical
appropriation of private property, or it may result from government-imposed
limitations on the use of private property." Byrd v. City of Hartsville, 365 S.C. 650,
656, 620 S.E.2d 76, 79 (2005). In its order, the circuit court heavily relied on
Kiriakides, which addressed the government-imposed limitations on the use of
private property, otherwise known as regulatory inverse condemnation. This
category is separate and distinct from the government's physical appropriation of
private property, also known as physical inverse condemnation. Apart from the type
of government action used to condemn private property, the major difference
between the two categories is that, contrary to a physical inverse condemnation,
"there are only two elements to a regulatory inverse condemnation: affirmative
conduct and a taking." Id. at 657, 620 S.E.2d at 80; see also id. at 657, 620 S.E.2d
at 79 (holding that the "some degree of permanence" and "public use" elements from
the traditional four-element inverse condemnation test do not apply to regulatory
inverse condemnation).
In Kiriakides, the owner of a vacant theater sought damages for regulatory
inverse condemnation, alleging that the threat of condemnation proceedings
stigmatized and devalued his property. 382 S.C. at 12, 15, 675 S.E.2d at 441, 443.
Our supreme court found this unpersuasive because "[t]he mere institution of
condemnation proceedings does not constitute a taking, as it is a legitimate exercise
of the government's authority." Id. at 17, 675 S.E.2d at 443. The court also reasoned
that the inverse condemnation claim would "preclude the government from engaging
in normal activities incident to a condemnation," such as surveying property and
obtaining an appraisal. Id. at 19, 675 S.E.2d at 445.
In the present case, the Marlowes are seeking recovery for flooding damage
under a theory of physical inverse condemnation. Denying recovery based on the
supposed legitimacy of SCDOT's actions would provide de facto immunity for any
physical actions regularly undertaken by governmental bodies. This is in clear
contravention to South Carolina precedent. See e.g., WRB Ltd. P'ship v. Cnty. of
Lexington, 369 S.C. 30, 33, 630 S.E.2d 479, 481 (2006) (finding that there was a
genuine issue of material fact that capping a landfill was an affirmative, positive,
and aggressive act that may have caused the migration of methane on an owner's
property); Berry's On Main, Inc. v. City of Columbia, 277 S.C. 14, 16, 281 S.E.2d
796, 797 (1981) (holding that the removal of a public sidewalk and the excavation
of trenches leading to a business's basement were affirmative, positive, aggressive
acts that caused flooding damage). Therefore, we find that applying the Kiriakides
legitimacy analysis to this case was erroneous as a matter of law. See Rule 56(c)
("[Summary] judgment sought shall be rendered forthwith if . . . the moving party is
entitled to a judgment as a matter of law.").
III. The Stormwater Act
The Marlowes argue that the circuit court erred in using the Stormwater
Management and Sediment Reduction Act (Stormwater Act) 9 as a basis for granting
summary judgment. We agree.
"The [Stormwater Act] requires a person who intends to engage in a land
disturbing activity to submit a stormwater management and sediment control plan to
the appropriate agency and obtain a permit before engaging in the activity, unless an
exemption applies." Responsible Econ. Dev. v. S.C. Dep't of Health & Env't Control,
371 S.C. 547, 551, 641 S.E.2d 425, 427 (2007) (footnotes omitted).
In its order, the circuit court found, as a basis for immunity, that "the
[Stormwater Act] does not impose any liability upon the state or government entity
for acting or failing to act under the [Stormwater Act]." This section read in full
states
[n]othing contained in this chapter and no action or failure
to act under this chapter may be construed:
(1) to impose any liability on the State, department,
districts, local governments, or other agencies, officers, or
employees thereof for the recovery of damages caused by
such action or failure to act; or
(2) to relieve the person engaged in the land disturbing
activity of the duties, obligations, responsibilities, or
liabilities arising from or incident to the operations
associated with the land disturbing activity.
§ 48-14-160. Section 48-14-160(1) is not a catch-all provision that provides
unchecked immunity to governmental entities once a Stormwater Act permit has
9
S.C. Code Ann. §§ 48-14-10 to -170 (Supp. 2022).
been obtained. Instead, a comprehensive reading of the provision reveals the
opposite—that the Stormwater Act neither imposes nor relieves liability for actions
or failures to act. Therefore, because the circuit court relied upon the Stormwater
Act in granting summary judgment, it was in error as a matter of law. See Rule 56(c)
("[Summary] judgment sought shall be rendered forthwith if . . . the moving party is
entitled to a judgment as a matter of law.").
CONCLUSION
Based on the foregoing, we find that a genuine issue of material fact existed
as to whether SCDOT's conduct amounted to an affirmative, positive, aggressive act
for the purposes of inverse condemnation, and as a result, we reverse and remand
this issue for further proceedings. Additionally, we find that granting summary
judgment based on the Stormwater Act was in error as a matter of law; therefore, we
reverse summary judgment on this issue. Lastly, we affirm the circuit court's
decision to grant summary judgment on SCDOT's liability under the TCA.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.
WILLIAMS, C.J., and VERDIN, J., concur.