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Amy Summer, Appellant,

v.

Robert R. Carpenter, Respondent.

Appeal From York County

Gary E. Clary, Judge

Opinion No. 24689

Heard March 19, 1997 - Filed September 22, 1997

AFFIRMED IN PART; REVERSED IN PART

Mark W. Hardee, of Lewis, Babcock & Hawkins, L.L.P., of Columbia, for appellant.

James W. Alford, Curtis W. Dowling, and Andrew E. Haselden. of

Barnes, Alford, Stork & Johnson, L.L.P., of Columbia, for

respondent.

Burnett, A.J.: Appellant brought this legal malpractice action against

respondent alleging he was negligent for failing to institute suit against the South

Carolina Department of Highways and Public Transportation (the Highway Department).

Appellant seeks review of the trial judge's order granting respondent's motion for

summary judgment. We affirm in part and reverse in part.

UNDERLYING FACTS

Appellant was rendered a quadriplegic as a result of a single car accident on

June 29, 1989, at the intersection of Heckle Boulevard and Hollis Lakes Road near Rock

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SUMMER v. CARPENTER

Hill, South Carolina. At the time of the accident, appellant and Lisa Buchan were

passengers in the car driven by appellant's sister, Kari Summer.

On April 20, 1991, appellant hired respondent. Respondent filed a

complaint against Jim Lineberger Grading & Paving Company, Inc. (Lineberger) on June

28, 1991. In this complaint, respondent alleged Lineberger's negligent construction of

Heckle Boulevard proximately caused appellant's injuries. More particularly, respondent

alleged Lineberger "so constructed Heckle Boulevard that a bump or dip crossed Hollis

Lakes Road ... constituting a hazard to traffic . . .". The statute of limitations ran against

the Highway Department on June 29, 1991.1 Approximately three months after filing

suit, respondent determined he had a conflict of interest, and he was relieved as

appellant's counsel.

Another attomey assumed representation of appellant. Two years later,

appellant's case against Lineberger was settled for a lump sum of $121,000 plus an

annuity providing for monthly payments of $600, guaranteed for 30 years or until

appellant's death. At approximately the same time. Buchan's lawsuit against Lineberger

was dismissed pursuant to Lineberger's motion for summary judgment.

Appellant commenced this legal malpractice action against respondent

asserting she was unable to obtain full recovery for her injuries because the Highway

Department was not included in the lawsuit against Lineberger. At the hearing on

respondent's motion for summary judgment. appellant argued respondent should have

brought an action against the Highway Department for negligent design and negligent

maintenance of the intersection.

The trial court concluded, even if respondent was negligent in failing to

bring an action against the Highway Department, respondent's negligence did not

prejudice appellant because she would not have had a successful action against the

Highway Department. Specifically, the trial judge found the Highway Department was

immune from suit under several statutory defenses in the South Carolina Tort Claims Act

(the Act)2 and, further, under the doctrine of joint and several liability, the presence or

absence of the Highway Department in the underlying suit was immaterial.

1 South Carolina Code Ann. § 15-78-100(a) (Supp. 1996)(an action for damages under

the Tort Claims Act may be instituted at any time within two years after the loss was or

should have been discovered).

2 S.C. Code Ann. §§ 15-78-10 to -190 (Supp. 1996).

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SUMMER v. CARPENTER

Consequently, the trial judge granted respondent's motion for summary judgment.

I. Did the trial judge err by holding the Highway Department would have

had design immunity? Is appellant's negligent maintenance argument

preserved for consideration on appeal?

II. Did the trial judge err by holding the Highway Department would have

been immune from suit due to the exercise of its discretion pursuant to § 15-

78-60 (5)?

III. Did the trial judge err by holding the Highway Department would have

been immune from suit pursuant to § 15-78-60 (15)?

IV. Did the trial judge err by holding failure to institute suit against the

Highway Department did not prejudice appellant due to the doctrine of joint

and several liability?

Summary judgment is appropriate when it is clear there is no genuine issue

of material fact and the moving party is entitled to judgment as a matter of law. City of Columbia v. American Civil Liberties Union, _ S.C. _, 475 S.E.2d 747 (1996). In

determining whether any triable issue of fact exists, the evidence and all inferences which

can be reasonably drawn therefrom must be viewed in the light most favorable to the non-

moving party. Id.; Manning v. Quinn, 294 S.C. 383, 365 S.E.2d 24 (1988).

In a legal malpractice action, the plaintiff must prove (1) the defendant was

negligent, (2) the defendant's negligence proximately caused the plaintiff s injuries, and

(3) damages. Shealy v. Walters, 273 S.C. 330, 256 S.E.2d 739 (1979). In other words, a

plaintiff must show she most probably would have been successful in the underlying suit

if the attorney had not committed the alleged malpractice. Manning, supra; Floyd v. Kosko, 285 S.C. 390, 329 S.E.2d 459 (Ct. App. 1985).

Appellant argues the trial Judge erred by determining the Highway

Department was not negligent in its design of the intersection as a matter of law.

Appellant contends her case against the Highway Department would have been based on

negligent design and maintenance. She claims she presented evidence the Highway

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SUMMER v. CARPENTER

Department was on notice the intersection was dangerous and its failure to properly repair

it proximately caused her injuries. We disagree.

As for negligent design, the Act provides absolute governmental immunity

from liability for loss resulting from the design of highways and other public ways. S.C.

Code Ann. § 15-78-60 (15). Therefore, even if the Highway Department was on notice

the design of the intersection was dangerous, the Highwav Department was immune from

suit for negligent design. Accordingly, the trial judge properly granted summary

judgment for respondent on the issue of negligent design.

Appellant's argument concerning negligent maintenance is not preserved

for appeal. The trial judge did not rule on appellant's maintenance claim in his order

granting summary judgment and appellant did not request the trial judge reconsider his

order to address this issue. Accordingly, appellant's negligent maintenance argument is

not proper for consideration on appeal. Noisette v. Ismail, 304 S.C. 56, 403 S.E.2d 122

(1991)(where trial judge did not explicitly rule on issue at trial and party did not make

Rule 59(e), SCRCP, motion to amend for a ruling, it is error for an appellate court to

consider the issue).

Nonetheless, with regard to appellant's negligent maintenance argument, the

evidence indicates the intersection of Hollis Lakes Road and Heckle Boulevard was

designed by the Highway Department and was constructed by Lineberger in accordance

with the Highway Department's plans and specifications. Two bumps or dips which were

part of the original design of the intersection resulted from tying the two roads together.3

Lineberger began construction of the intersection in late April 1989. Even

though the project was still under construction, the intersection was opened for travel on

April 26th. Shortly thereafter, two individuals submitted claims with the Highway

Department for damage to their vehicles due to the bumps in the intersection. The

Highway Department paid the two claims associated with the damage and instructed the

paving company to level or "wedge" the intersection to smooth the bumps in early May

1989.4 The wedging, described as a "slight modification" or "alteration" of the original

plans and specifications, altered the slope of the intersection but did not remove the

bumps entirely. The Highway Department posted two "bump" signs in advance of the

3 A Highway Department engineer explained the bumps resulted from Heckle

Boulevard changing from a single lane road into a four lane road at the intersection.

4 Lineberger subcontracted the paving. The evidence indicates the paving

subcontractor followed the Highway Department's plans and specifications for the

project, including the wedging.

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SUMMER v. CARPENTER

intersection. At the time of appellant's accident, approximately two months later, the

intersection was still under construction. The Highway Department accepted the

completed project "long after" appellant's accident.

Respondent's engineering expert testified the wedging work corrected any

problem which may have existed at the intersection and the intersection was safe for the

travelling public at the posted speed limit of 45 mph. Appellant's engineering experts

stated the design and maintenance of the intersection created a dangerous condition and

the attempt to correct the bumps by wedging was inadequate. Appellant's experts

concluded the bumps were a contributing proximate cause of appellant's accident.5

Appellant has attempted to construe her action against the Highway

Department as one for negligent maintenance rather than negligent design since the

Highway Department is immune from suit for negligent design. See § 15-78-60 (15).

However, the evidence indicates the wedging in May 1989 was only a modification of the

original design for the intersection. Moreover, at the time of the accident, the intersection

was still under construction and the project had yet to be returned to the Highway

Department. These circumstances indicate the intersection was still under design and not

subject to maintenance by the Highway Department. Accordingly, even if she had

preserved the issue of negligent maintenance for the Court's consideration, appellant

would not have had a successful action for negligent maintenance and, therefore, she has

failed to establish any prejudice by respondent's failure to file suit against the Highway

Department.

Further, it would be a poor policy decision to conclude the Highway

Department waives its design immunity when it alters its original design during the

course of construction. Preserving design immunity under these circumstances would

encourage the Highway Department to modify and/or improve designs during an ongoing

project and, thereby, improve both the construction of and safety on the highways. See

S.C. Code Ann. § 15-78-20(f) (Supp. 1996)(provisions of Act establishing exemptions to

liability must be liberally construed in favor of limiting the liability of the State).

Finally, we agree with appellant the Highway Department was on notice the

original bumps in the intersection were causing property damage to vehicles. After

receipt of two property damage claims, the Highway Department made improvements to

the intersection. We find nothing in the record, however, which suggests the Highway

Department was on notice the wedging was insufficient to correct the allegedly dangerous

5 Appellant's sister, the driver of the automobile, admitted in her deposition she saw the

"road construction" and "bump" signs. knew the speed limit was 40 mph, but was driving

55 to 60 mph at the time of the accident.

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SUMMER v. CARPENTER

condition at the intersection. In fact, the evidence indicates to the contrary: there were no

reported damage claims after the wedging. Accordingly, we conclude the Highway

Department was not on notice of problems at the intersection after the wedging and,

therefore, had no duty to make further improvements to the intersection.

II.

Appellant contends the trial judge erred by ruling the Highway Department

would have been immune from suit pursuant to § 15-78-60 (5) which provides immunity

from liability for acts arising out of the exercise of discretion by a government agency.

We agree.6

Section 15-78-60 (5) provides:

The 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....

Mere room for discretion on the part of the entity is not sufficient to invoke

the discretionary immunity provision. Discretionary immunity is contingent on proof the

government entity, faced with alternatives, actually weighed competing considerations

and made a conscious choice. Further, the entity must establish, in weighing the

competing considerations and alternatives, it utilized accepted professional standards

appropriate to resolve the issue. Strange v. S.C. Dept. of Highways. & Public Transportation, 314 S.C. 427, 445 S.E.2d 439 (1994); Foster v. S.C. Highways & Public Transportation, 306 S.C. 519, 413 S.E.2d 31 (1992). The government entity bears the

burden of establishing discretionary immunity as an affirmative defense. Niver v. S.C. Dept. of Highways & Public Transportation,. 302 S.C. 461. 395 S.E.2d 728 (Ct. App.

1990).

Respondent presented evidence which indicates (1) the design used for the

intersection was common and (2) while respondent's expert would have selected another

design, the chosen design was not wrong. This evidence does not establish respondent

considered various design options for the intersection and then selected the chosen design

6 For purposes of this argument, we are ignoring the Highway Department's defense of

design immunity. Section 15-79-60 (15).

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SUMMER v. CARPENTER

plan after carefully weighing competing considerations. 7 Accordingly, the trial judge

erred in concluding the Highway Department would have been immune from liability

under the discretionary exception to the Act as a matter of law. Id.

III.

Appellant argues the trial judge erred by concluding the Highway

Department would have been immune from suit under § 15-78-60 (15) since it was

protected by an indemnity bond. Appellant asserts respondent did not establish the

indemnity bond purchased by Lineberger would have covered the Highway Department

in a negligence action. We agree.

In relevant part, S.C. Code Ann. § 15-78-60 (15) provides:

Governmental entities are not liable for loss on public ways under

construction when the entity is protected by an indemnity bond.

Although the statute simply refers to the presence of an indemnity bond, it

is our opinion the legislature intended this provision to exempt a governmental entity

from liability when the indemnity bond actually protects the governmental entity from

liability for negligence. Otherwise, an "indemnity bond" which does not provide

coverage in the event of negligence would nonetheless be considered to provide immunity

from negligence actions of government entities. Kiriakides v. United Artists Communications, Inc., 312 S.C. 271, 440 S.E.2d 364 (1994)(however plain the ordinary

meaning of the words used in a statute may be, the courts will reject that meaning if to

accept it would lead to a result so plainly absurd that it could not possibly have been

intended by the legislature or would defeat the plain legislative intention).

It is undisputed the Highway Department was protected by a bond entitled

"Performance and Indemnity Bond" for the Hollis Lakes Road and Heckle Boulevard

construction project. The language in the body of this bond, however, does not indicate

an agreement by the surety to indemnify the Highway Department against a third party

claim for personal injury as a result of the construction project, but simply to protect the

Highway Department from costs if Lineberger failed to perform under the terms of the

7 According to the affidavit of one of appellant's engineering experts, the intersection

was improperly designed and the design was below the standard of care for civil

engineers.

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SUMMER v. CARPENTER

contract.8 Accordingly, the trial judge erred in holding the indemnity bond exception

would have applied in appellant's action against the Highway Department. Strange, supra

(burden of establishing limitation on liability under Tort Claims Act is on government

entity asserting it as affirmative defense).

IV.

Appellant argues the trial judge erred by concluding the presence or

absence of the Highway Department from her underlying suit was immaterial since, under

the doctrine of joint and several liability, appellant would have been entitled to a full

recovery from Lineberger. We agree.

If suit had been instituted against Lineberger and the Highway Department,

appellant asserts Lineberger would have claimed the Highway Department's negligence

alone proximately caused appellant's injuries since it designed/maintained the intersection

and Lineberger only followed the Department's specifications in constructing the

intersection. By affidavit, appellant's counsel in her action against Lineberger stated

"[t]he presence of the [Highway Department] would have most likely resulted in a much

higher settlement or verdict for [appellant]."

Based on the evidence presented, if suit had been filed against both

Lineberger and the Highway Department, we agree Lineberger would have likely claimed

it simply followed the Highway Department's plans and specifications in constructing the

intersection. Nonetheless, as noted above and correctly determined by the trial judge, the

Highway Department would have been immune from suit under the design immunity

provision of the Act. Section 15-78-60 (15). Accordingly, joint and several liability

would have been inapplicable since only one tortfeasor, Lineberger, would have existed.

See generally M & T Chemicals, Inc. v. Barker Industries. Inc., 296 S.C. 103, 370 S.E.2d

886 (Ct. App. 1988)(under the doctrine of joint and several liability, joint tortfeasors are

liable for the plaintiff's damages, both jointly and severally).

For reasons stated above, the order of the trial Judge is AFFIRMED IN

PART AND REVERSED IN PART.

FINNEY, C.J., MOORE and WALLER, JJ., concur. TOAL, A.J., dissenting

in separate opinion.

8 South Carolina Code Ann. § 57-5-1660 (1991) requires highway department

contractors to fumish a "performance and indemnity bond" with a surety sufficient to

satisfy the full amount of the contract.

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TOAL, A.J.: I respectfully dissent as to Issue I, the potential negligent maintenance

claim against Highway Department. However, I first must note that there are, in fact,

few points of disagreement between me and the majority. In Issues II (discretionary

immunity issue), III (indemnity bond immunity issue), and IV (joint and several

liability issue) of this case, the majority has found error by the trial court. I agree

wholly with the majority's reasoning and conclusions recording those issues.

However, I respectfully disagree about the merits of Issue I, the only issue on

which the majority affirms the trial court's grant of summary judgment. In my

opinion, Respondent Carpenter ("Lawyer") was not entitled to summary judgment in

this legal malpractice action. I believe Appellant Summer's ("Passenger") potential

negligent maintenance claim against Highway Department had at least some factual and

legal basis and at least some chance of success. Accordingly, there existed a genuine

issue of material fact regarding whether Lawyer was negligent for failing to sue

Highway Department.

First, contrary to the majority's claim, Passenger's negligent maintenance

argument is preserved for appeal. One of the relevant questions in this case is whether

this issue should be characterized as one of negligent design or of negligent

maintenance. By characterizing it as a design issue, the trial court's order implicitly

ruled on the negligent maintenance issue. I believe it is overly technical to require

Passenger to have brought a Rule 59(e) motion when the import of the trial court's

order was perfectly clear.

Additionally, however, some of the evidence in the Record suggests the issue

was a maintenance issue and that Highway Department was negligent in its maintenance

of the intersection. Dr. Parsonson, an engineering professor at Georgia Tech, opined

by affidavit that Highway Department's attempt to correct the bumps in the road "was

unreasonable and inadequate and below the standard of care expected for highway

maintenance at the time in question." (emphasis added). Dr. Parsonson concluded

Highway Department had been negligent both in its design and in its maintenance of the

intersection in question. Similarly, Jeffrey Clark, a reconstruction and forensic

engineer, stated the surface of the road should have been smooth. Clark's affidavit

suggests Hiahway Department's actions in performinc, the wedging procedure at the

intersection were inadequate to correct the original problem.

In my opinion, the expert testimony, as well as the testimony concerning

Highway Department's actual knowledge of the danger of the intersection and its

decision to employ "wedging" to correct the problem, should preclude any grant of

summary judgment to Lawyer. When viewed in the light most favorable to Passenger,

see, e.g., Manning v. Quinn, 294 S.C. 383, 365 S.E.2d 24 (1988)(in summary

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SUMMER v. CARPENTER

judgment motion, all evidence and its inferences must be viewed in light most favorable

to nonmoving party), the evidence presented to the trial judge demonstrated a genuine

issue of material fact regarding Passenger's ability to prevail on the negligent

maintenance issue. To survive a summary judgment motion, Passenger need have

shown no more.

I note this does not mean Passenger necessarily should prevail against Lawyer.

At trial, Passenger would have to demonstrate that the negligent maintenance claim

probably would have succeeded, and it is certainly possible she could not meet her

burden.1a At the summary judgment stage, however, Passenger need not prove her

case. Rather, she need only demonstrate there is a genuine issue of material fact

regarding the merits of her claim; i.e., she must show that she has a case to begin with.

I believe Passenger has met that burden and would not, therefore, deny her her day in

court.

For the foregoing reasons, I concur as to Issues II, III, and IV, and dissent as to

Issue I.

1a In my view, the majority erred by weighing the evidence rather than simply

determining whether the evidence presented a genuine issue of material fact, the

appropriate test for summary judgment.

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