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SUMMER v. CARPENTER9/22/1997
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 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 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) and, further, under the doctrine of joint and several liability,
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 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 nonmoving 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 defend
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