Summer v. Carpenter, 24689

• Court: United States State Supreme Court of South Carolina
• Citation: 492 S.E.2d 55,328 S.C. 36
• Decision Date: 19 March 1997
• Docket Number: No. 24689,24689
• Parties: Amy SUMMER, Appellant, v. Robert R. CARPENTER, Respondent. . Heard

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492 S.E.2d 55 328 S.C. 36 Amy SUMMER, Appellant,
v.
Robert R. CARPENTER, Respondent. No. 24689. Supreme Court of South Carolina. Heard March 19, 1997.
Decided Sept. 22, 1997.
Rehearing Denied Oct. 21, 1997.

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[328 S.C. 40] Mark W. Hardee, of Lewis, Babcock & Hawkins, L.L.P., Columbia, for appellant.

James W. Alford, Curtis W. Dowling, and Andrew E. Haselden, of Banes, Alford, Stork & Johnson, L.L.P., Columbia, for respondent.

BURNETT, Justice:

Appellant brought this legal malpractice action against respondent alleging he was

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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 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 [328 S.C. 41] 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 attorney 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.

ACTION AGAINST RESPONDENT

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, [328 S.C. 42] the presence or absence of the Highway Department in the underlying suit was immaterial. Consequently, the trial judge granted respondent's motion for summary judgment.

ISSUES

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

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due to the doctrine of joint and several liability? DISCUSSION

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, 323 S.C. 384, 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).

I.

Appellant argues the trial judge erred by determining the Highway Department was not negligent in its design of the [328 S.C. 43] 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 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 Highway 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[328 S.C. 44] , 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"

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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 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...