Sandberg v. Lehman, Jensen & Donahue, LC

• Decision Date: 25 July 2003
• Docket Number: No. 20020101-CA.,20020101-CA.
• Parties: Albert L. SANDBERG, Plaintiff and Appellant, v. LEHMAN, JENSEN & DONAHUE, L.C., a Utah limited liability company, Defendant and Appellee.
• Court: Utah Court of Appeals

76 P.3d 699

2003 UT App 272

Albert L. SANDBERG, Plaintiff and Appellant, v. LEHMAN, JENSEN & DONAHUE, L.C., a Utah limited liability company, Defendant and Appellee.

No. 20020101-CA.

Court of Appeals of Utah.

July 25, 2003.

Francis J. Carney and Stephen P. Horvat, Anderson & Karrenberg, Salt Lake City, for Appellant.

Matthew L. Lalli and Kimberly Havlik, Snell & Wilmer, Salt Lake City, for Appellee.

Before DAVIS, GREENWOOD and ORME, JJ.

OPINION

ORME, Judge:

¶ 1 This case arises in the context of a legal malpractice action. Plaintiff Albert Sandberg (Sandberg) sued the law firm of Lehman, Jensen & Donahue, L.C., (Lehman) for failure to join Salt Lake City as a defendant in a personal injury action arising out of injuries Sandberg suffered when he fell into an unguarded concrete pit at the Salt Lake Valley Solid Waste Facility. The trial court granted summary judgment in favor of Lehman on the basis that Salt Lake City was entitled to governmental immunity, and thus, even if Lehman had joined Salt Lake City as a defendant, Sandberg's claim against it would have been unsuccessful as a matter of law. Sandberg appeals, and we reverse.

BACKGROUND

¶ 2 Sandberg was injured when he slipped and fell into the "citizens' unloading station" at the Salt Lake Valley Solid Waste Facility (the Landfill). The Landfill is operated by the Salt Lake Valley Solid Waste Management Council (the Council), which was created in 1980 pursuant to an Interlocal Cooperation Agreement between Salt Lake City and Salt Lake County. The Council is made up of five members, including officials from the City and the County,¹ and one of its roles, according to the Interlocal Cooperation Agreement, is to "determine broad matters of policy regarding the operation and management of any solid waste processing and disposal facilities."

¶ 3 In the late 1980s, the Salt Lake County Public Works Department hired two consulting firms to assist it in assessing the need for a citizens' unloading station. Based on the recommendations contained in those reports, the Salt Lake County Public Works Department formally proposed that a citizens' unloading station be added to the existing facilities at the Landfill. The Salt Lake City Corporation Engineering Division was engaged to design the citizens' unloading station. Paul Jara, a civil engineer and Salt Lake City employee, was in charge of the design. The citizens' unloading station featured a central concrete pit with access roads on both sides, allowing the station's users to drive to the edge of the pit and dump their nonhazardous wastes.

¶ 4 On the day of his accident, Sandberg arrived at the citizens' unloading station and backed his truck up about a foot away from the curb, leaving little room on the six-foot sidewalk between the open tailgate of his pick-up truck and the edge of the pit. Sandberg then climbed into the bed of his truck and began unloading debris into the pit. While attempting to remove a two-by-four, Sandberg stepped down from the bed of his truck with one foot, slipped on the icy concrete,² and fell backward into the five-foot-deep pit, suffering severe injuries.³

¶ 5 Sandberg hired Lehman to represent him in a personal injury action. Lehman sued Salt Lake County on behalf of Sandberg and received a $100,000 settlement, but Lehman did not join Salt Lake City, the designer and co-operator of the citizens' unloading station, as a defendant. The time to assert such a claim expired. Sandberg subsequently sued Lehman for malpractice, alleging that Lehman negligently failed to join Salt Lake City as a defendant in the underlying personal injury action. Lehman moved for summary judgment, arguing that designing the citizens' unloading station was a discretionary act, and thus that any claim against Salt Lake City would have been barred by the Utah Governmental Immunity Act. The trial court agreed and, after a hearing, granted Lehman's summary judgment motion. Sandberg appeals, arguing that, because Lehman failed to establish "that a conscious weighing of the pros and cons of omitting the pertinent safety features took place at the immunized policymaking level," the trial court's grant of summary judgment based on Salt Lake City's potential entitlement to governmental immunity was improper.

STANDARD OF REVIEW

¶ 6 Summary judgment is appropriate only 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." Utah R. Civ. P. 56(c). "Therefore, when we review the district court's decision to grant summary judgment, we review the court's legal decisions for correctness, giving no deference, and review `the facts and inferences to be drawn therefrom in the light most favorable to the nonmoving party.'" J.R. Simplot Co. v. Sales King Int'l, Inc., 2000 UT 92, ¶ 13, 17 P.3d 1100 (citation omitted). "As we analyze the issues, we are mindful that, `because negligence cases often require the drawing of inferences from the facts, which is properly done by juries rather than judges, "summary judgment is appropriate in negligence cases only in the clearest instances."'" Trujillo v. Utah Dep't of Transp., 1999 UT App 227, ¶ 12, 986 P.2d 752 (quoting Nelson v. Salt Lake City, 919 P.2d 568, 571 (Utah 1996)) (other citation omitted).

ANALYSIS

I. Legal Malpractice

¶ 7 The Utah Supreme Court has held:

In a legal malpractice action, a plaintiff must plead and prove (i) an attorney-client relationship; (ii) a duty of the attorney to the client arising from their relationship; (iii) a breach of that duty; (iv) a causal connection between the breach of duty and the resulting injury to the client; and (v) actual damages.

Harline v. Barker, 912 P.2d 433, 439 (Utah 1996). The issue in this case hinges on the fourth prong: Even if Lehman breached a duty to Sandberg in failing to join Salt Lake City as a defendant in Sandberg's personal injury claim, we must determine whether that breach was the cause of any resulting injury to Sandberg. "To prove proximate cause in legal malpractice cases ..., the plaintiff must show that absent the attorney's negligence, the underlying suit would have been successful."⁴Id. Thus, Sandberg must show that, if Lehman had joined Salt Lake City as a defendant in his personal injury lawsuit, that lawsuit would have been successful. Lehman argues, and the trial court agreed, that Sandberg's claim would have been unsuccessful as a matter of law because Salt Lake City would have been entitled to immunity under the Utah Governmental Immunity Act. We therefore turn our attention to our statutory immunity scheme and the case law interpreting its provisions.

II. Discretionary Function Immunity

¶ 8 The Utah Governmental Immunity Act (the Act) broadly grants immunity to "all governmental entities" for "any injury which results from the exercise of a governmental function." Utah Code Ann. § 63-30-3(1) (1997). The Act, however, circumscribes this broad grant of immunity by waiving immunity for certain claims. For example, as applicable to this case, the Act waives immunity for injuries "caused from a dangerous or defective condition of any public building [or] structure," id. § 63-30-9, and for injuries "caused by a negligent act or omission of an employee committed within the scope of employment." Utah Code Ann. § 63-30-10 (Supp.2002). Despite these waivers, immunity is nevertheless retained "if the injury arises out of, in connection with, or results from ... the exercise or performance or the failure to exercise or perform a discretionary function, whether or not the discretion is abused." Id. § 63-30-10(1).

¶ 9 The Utah Supreme Court has enunciated a three-pronged test to be used in determining whether a governmental entity is entitled to immunity under the Act:

(1) Was the activity undertaken by the entity a governmental function and therefore immunized from suit under the general grant of immunity contained in Utah Code Ann. § 63-30-3? (2) If the activity undertaken was a governmental function, has another section of the Act waived that blanket immunity? (3) If immunity has been waived, does the Act contain an exception to that waiver resulting in a retention of immunity against the claim asserted?

Keegan v. State, 896 P.2d 618, 619-20 (Utah 1995). The parties appear to agree that the design and operation of the Landfill is a governmental function and that sections 63-30-9 and 63-30-10 waive the immunity Salt Lake City would otherwise enjoy under section 63-30-3. The parties disagree, however, as to whether the discretionary function exception of section 63-30-10(1) applies to the facts of this case.

¶ 10 In Trujillo v. Utah Department of Transportation, 1999 UT App 227, 986 P.2d 752, a case involving facts closely analogous to the ones before us, we stated that "discretionary function immunity is `a distinct [and] limited form of immunity [that] should be applied only when a plaintiff is challenging a governmental decision that involves a basic policy-making function.'" Id. at ¶ 21 (second alteration in original) (quoting Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996)). Accord Keegan, 896 P.2d at 623

. This is so because discretionary function immunity "is `intended to shield [only] those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseeable ways from individual and class legal actions, the continual threat of which would make public administration all but impossible.'" Hansen v. Salt Lake County, 794 P.2d 838, 846 (Utah 1990) (quoting Frank v. State, 613 P.2d 517, 520 (Utah 1980)). Accord Trujillo, 1999 UT App 227 at ¶ 20, 986 P.2d 752.

¶ 11 In Trujillo we distinguished a government entity's policy-based decisions, which are entitled to discretionary function immunity, from those acts and decisions occurring at the operational level, which are not. See id. at ¶ ¶ 21-23. The former are characterized "`"by the high degree of discretion and judgment...