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SUMMER v. CARPENTER9/22/1997
e 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 Highway Department's actions in performing the wedging procedure at
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 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. 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.
TOAL, Justice, dissenting:
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