author: KAUGER, J.

text:
    2003 OK 70
    In the Matter of the Death of Michael Dean BRYAN, Deceased, Kristy Jo Johnson, Alix Coy Bryan, and Michaela BRYAN, Petitioners, v. Becky A. Bryan, Kendra Marie Graham, and Derick Anthony Graham, and The Workers' Compensation Court, Respondents, Maslonka & Associates, Inc., and Wausau Insurance Company, Employer and Insurance Carrier.
    No. 98,286.
    Supreme Court of Oklahoma.
    July 8, 2003.

      Brandon J. Burton, TR. Banks, Oklahoma City, OK, for Petitioners.
    W.E. Sparks, Tulsa, OK, for Respondents.
   KAUGER, J.

1 The question presented is whether the trial court erred in awarding workers' compensation death benefits to the employee's surviving spouse and stepchildren who were not living with the employee at the time of his death. We hold that the evidence supports the trial court's determination that the employee's surviving spouse and stepchildren are entitled to workers' compensation death benefits, and that the trial court's award of death benefits to the employee's natural children should remain undisturbed.

FACTS

12 On November 12, 2001, Michael Dean Bryan [employee] was killed in a work related accident while working for Maslonka and Associates, Inc. [employer] in Valliant, Oklahoma. The employee died instantly when a wire on an electrical pole touched his chest, electrocuting him.

18 Becky A. Bryan [spouse] filed a notice of death and claim for compensation in the workers' compensation court on December 3, 2001, seeking death benefits as the employee's wife. She also asserted that her two minor children [stepchildren] relied upon the employee for support. On March 18, 2002, Kristy Jo Johnson [companion] also filed a notice of death and claim for compensation, seeking death benefits as the employee's wife. She alleged that the employee was also survived by their minor child, and an unborn child [natural children].

T4 A hearing on the claims for death benefits was held on September 7, 2002. At the hearing, it was undisputed that the employee was covered by the Workers' Compensation Act and that he sustained a fatal work related accidental injury. The only questions before the trial court were the status of the spouse, the stepchildren, the companion, and natural children, as statutory claimants for death benefits and the amounts to be awarded.

T5 The spouse testified that she had two minor children from a previous marriage when she married the employee on May 6, 1996. She stated that, even though she received child support from the children's biological father, the employee supported her and the stepchildren. The spouse admitted that, at some point in time, she and the employee separated and on September 1, 1999, she secured a permanent protective order against the employee and his mother. Nevertheless, she insisted that he continued to support her and her children by giving her anywhere from fifty to a hundred dollars a week in cash. On cross examination, the spouse acknowledged that a divorce petition was filed 10 days prior to the employee's death, but that she was never served with any papers concerning a divorce.

T6 The companion did not personally appear at the hearing, but her deposition testimony was admitted into evidence. In the deposition, she admitted that she had never been married. However, she testified that she started having a relationship with the employee in September of 1999, and that they began living together sometime just before their son was born in September of 2000. The companion discovered that she was about four weeks pregnant with her second child on November 28, 2001, and she stated that the employee was the father of this child as well.

{7 In an order filed September 12, 2002, the trial judge, Honorable Jim Filosa, ordered death benefits to the spouse and the stepchildren and to the natural children, but denied benefits to the companion. The companion appealed on September 28, 2002, and on March 25, 2003, the Court of Civil Appeals, in an unpublished opinion, vacated a portion of the trial court's order and remanded the cause with instructions. It determined that the spouse and the stepchildren were not entitled to any death benefits. We granted certiorari on May 29, 20083.

T8 THE EVIDENCE SUPPORTS THE TRIAL COURTS DETERMINATION THAT THE EMPLOYEE'S SURVIVING SPOUSE AND STEPCHILDREN ARE ENTITLED TO WORKERS' COMPENSATION DEATH BENEFITS, AND THE TRIAL COURTS AWARD OF DEATH BENEFITS TO THE - EMPLOYEE'S - NATURAL CHILDREN SHOULD REMAIN UNDISTURBED.

{9 We note at the outset that: 1) neither party disputes that the employee's natural child born prior to the employee's death is entitled to death benefits; and 2) although the spouse argues in her petition for certiorari that the trial court erred in awarding benefits to the natural child born after the employee died, the issue was not presented in the petition in error, the reply to the petition in error, in either parties' briefs on appeal, nor was it addressed by the Court of Civil Appeals. Non-jurisdictional issues, which are raised for the first time on rehearing or certiorari are generally unfit for review. Consequently, the trial court's award of death benefits to the employee's natural children should remain undisturbed.

T10 The companion argues that neither the spouse nor the stepchildren are entitled to workers' compensation death benefits because: 1) the spouse does not qualify as a surviving spouse pursuant to 85 0.S.2001 § 3.1 of the Workers' Compensation Act; 2) the spouse did not receive one-half or more of her support from the employee; 8) the spouse's affirmative act of obtaining a protective order shows that the spousal relationship had ended; 4) onee the spouse lost her status as a spouse, her children also lost their status as stepchildren; and 5) the stepchildren were not dependent on the employee for support.

11 The spouse counters that she meets the definition of surviving spouse under 85 0.$.2001 § 3.1, and that she is not required to receive one-half or more of her support from the employee in order to recover death benefits. She asserts that: 1) obtaining a protective order did not alter the marital relationship, but rather was evidence of a justifiable cause for her and the employee to live apart; and 2) because she was the legal spouse of the employee and because she was dependent upon the employee for support, her children were also entitled to recover death benefits as well.

12 Title 85 0.$.2001 § 22 of the Workers' Compensation Act provides the compensation amounts for death benefits for family members of an injured worker including the surviving spouse, a child or children, or other relatives such as parents, brothers, and grandparents, ete.-if actually dependent upon the employee. Title 85 0.8.2001 § 3.1 provides the definition of the dependents which are listed in § 22.

[13 Under 85 0.8.2001 § 3.1 a surviving spouse is defined as either "the employee's spouse living with or actually dependent upon the employee at the time of his death or injury, or living apart for justifiable cause or by reason of desertion by the employee." Stepchildren are included in § 8.1's definition of "child," if actually dependent. Section 3.1 defines "actually dependent" as:

a. a surviving spouse as defined in this section;
b. a child as defined in this section; or
c. any other person dependent in fact upon the employee and refers only to a person who receives one-half (%) or more of his support from the employee

T 14 The companion relies on our decision in Tatum v. Tatum, 1982 OK 62, 736 P.2d 506 in support of her argument. In Tatum, the Court addressed the definitions provided in § 8.1, and their application to § 22. Ta-twm involved a dispute between two women who sought death benefits as the spouse of a deceased worker. One woman married the worker in 1958, and they lived together until he left the marital home in 1971. In 1972, without obtaining a divorcee from the first woman, the worker cohabitated with another woman and her two children-and they held themselves out as husband and wife. Eventually, the couple had one child together.

[15 After the worker was accidently killed on the job, the first woman sought death benefits for herself as a "deserted" spouse. The second woman sought death benefits for herself as the decedent's widow and for her children as the decedent's stepchildren. The Tatum Court held that the first woman was entitled to death benefits, and that neither the second woman or her children were entitled to any benefits because they did not fall within any statutorily cognizable class of authorized claimants. .

16 In Tatum, the Court recognized tha three categories of persons are statutorily "actually dependent," in the eligibility sense, to receive death benefits. The three categories are: 1) a surviving spouse; 2) a child or children; and 3) other persons who are in fact dependent upon the employee. However, because the compensation schedules in § 22 refer to dependents such as parents, brothers, sisters, grandparents and grandchildren, the Court determined that § 3.1 does not create a general class of authorized claimants for persons who are actually dependent on the decedent worker for support contributions, but do not fall into any of the three recognized categories. Nevertheless, the Court also recognized that, although no such evidence was present, a person's status as a deserted spouse might be lost if the spouse who was deserted took affirmative acts to end the relationship such as suing for divorce or separate maintenance, active resistance to reconciliation efforts or other acts which were indicative of a changed character in the spousal relationship or a legal change in the relationship.

{17 Implicit in the Tatum holding is a determination that the language in § 3.1 which requires a showing of dependent persons to have been receiving one-half of their support from the worker applies only to persons enumerated in $ 22 such as parents, brothers, sisters, grandparents, ete; who allege that they were dependent on the employee for support, rather than surviving spouses and children. The spouse, who was legally married to the employee at the time of the employee's death, was only required to show that she met the statutory definition of a surviving spouse and that the stepchildren were dependent on the employee-she was not required to show that she or the stepchildren received one-half or more of their support from the employee. However, pursuant to Tatum, the companion does not fall within any statutorily cognizable class of authorized claimants.

118 When reviewing resolutions of fact on nonjurisdictional issues from the workers' compensation court, we do not reweigh the evidence, but instead look for any competent evidence to support the trial court's findings. It is only in the absence of competent evidence that the tribunal's decision may be viewed as legally erroneous and subject to appellate vacation. Here, the trial court's determination that the spouse and the stepchildren were entitled to death benefits was supported by the evidence. It was undisputed that the spouse and the employee did not live together. However, the spouse's testimony indicated that she and her children relied on the employee for support at the time of his death. The only evidence to the contrary was the companion's testimony that the employee did not provide any support to the spouse or the stepchildren. In addition to evidence of dependency, the record also reveals that the spouse secured a protective order which appears to have coincided with the employee's initiating a relationship with the companion -evidence that the spouse's separation from the employee would have been for a justifiable cause. Accordingly, we hold that the trial court did not err in its determination that the employee's surviving spouse and the stepchildren are entitled to workers' compensation death benefits.

CONCLUSION

119 The death benefit provisions of the Workers' Compensation Act are given a broad and liberal construction in determining the question of dependency. In order to recover death benefits as a surviving spouse, a person who was legally married to a worker at the time of the worker's death, is required only to show that he or she meets the statutory definition of a surviving spouse, rather than that he or she received one-half or more of their support from the employee. Similarly, although recovery for stepchildren is based upon dependency, a showing that the child received one-half or more of their support from the employee is likewise not required under the current statutory scheme. Findings of fact of the workers' compensation court on the issue of dependency under the death benefit provisions of the Act will not be disturbed on review if reasonably supported by any competent evidence. The spouse's testimony indicated that she relied on the employee for support for her and the stepchildren at the time of the employee's death. The trial court neither erred in its determination that the employee's surviving spouse and the stepchildren are entitled to workers' compensation death benefits, nor in awarding death benefits to the employee's natural children.

CERTIORARI PREVIOUSLY GRANTED; COURT OF CIVIL APPEALS OPINION VACATED; TRIAL COURT AFFIRMED.

WATT, C.J., OPALA, V.C.J., HODGES, LAVENDER, HARGRAVE, SUMMERS, WINCHESTER, JJ., concur.

BOUDREAU, J., dissents.

      . Title 85 0.98.2001 § 1, et seq.

      . The trial transcript provides in pertinent part at pp. 11-12:
      . Q. All right. Now, at the time that you married Mr. Bryan, did those children reside in your home?
      A. Yes.
      Q. - Did he provide benefits for them?
      A. Yes.
      O. Did he provide or put his paycheck in the bank to be used for the benefit of those children?
      A. Yes.. »

      . The protective order was entered in McCurtain County, Oklahoma and it provides in pertinent part:
      ... THE DEFENDANT IS ORDERED NOT TO THREATEN, ABUSE, ASSAULT, INJURE, MOLEST, HARASS, OR STALK THE PLAINTIFE. ..."

      . The trial transcript provides in pertinent part at pp. 21-23:
      "... Q.... Tell me what you told me your gross income was back in November 2001. A. Twelve hundred.
      Q. About twelve hundred, okay. In your deposition given February of this year-You remember giving that?
      A. Yes.
      Q. Okay. You testified that Mr.-
      A. Oh, I'm sorry. You said November of 2001?
      Q. Yes, ma'am.
      A. Okay. I was drawing unemployment at that time....
      Q. Okay. And how much a month was that?
      A. I was getting a hundred and ninety-seven a week.
      Q. And that was the full extent of your income?
      A. - Besides my child support.
      Q. - Okay. How much child support?
      A. Twenty-one dollars a week. Twenty-one dollars and eighty cents a week.
      Q. - Okay. Per child?
      A. No....
      Q. Okay. And at that time, how much would Mr. Bryan give you?
      A. Michael would give me as much as he could a week, anywhere from fifty to a hundred, or whatever he could afford.
      Q. Okay. Did he give you money every week?
      A. - Just about.
      Q. Okay.
      Q. Okay.
      Three to for times a week at least. . A.
      Okay. He give you that by check or how did he do that? Q.
      A. He would give me cash ..."

      . The deposition provides in pertinent part at p. 7:
      . Q. Have you ever been married before, ma'am?
      A. No...."
      and at p. 12:
      . Q. Okay. You and Michael never went to any other state to become married, did you, ma'am?
      A. No.
      Q. Okay. You never had any civil ceremony ever performed; is that correct?
      A. No.
      Q. - Never-No, that's not correct?
      A. Yes, you're correct...."

      . The child was born on September 27, 2000, and the birth certificate lists the employee as the child's father. The employee also signed an acknowledgment of paternity on November 7, 2001.

      . Stidham v. Special Indemnity Fund, 2000 OK 33, ¶ 15, n. 26, 10 P.3d 880. See in this connection, Halliburton Oil Producing Co. v. Grothaus, 1998 OK 110, ¶ 23, 981 P.2d 1244; City of Oklahoma City v. State ex. rel. Oklahoma Dept. of Labor, 1995 OK 107, ¶ 4, 918 P.2d 26; First Federal Sav. and Loan Ass'n v. Nath, 1992 OK 129, ¶ 10, 839 P.2d 1336. Consequently, we do not address the issue.

      . Title 85 0.$.2001 § 3.1, Definitions applicable to death benefits, provides in pertinent part:
      "A. In respect to death benefits under the Workers' Compensation Act, the following definitions shall apply:
      (1) 'Actually dependent' means:
      a. a surviving spouse as defined in this section;
      b. a child as defined in this section; or
      c. any other person dependent in fact upon the employee and refers only to a person who receives one-half (%) or more of his support from the employee;
      (2) 'Surviving spouse' means only the employee's spouse living with or actually dependent upon the employee at the time of his death or injury, or living apart for justifiable cause or by reason of desertion by the employee;
      (3) 'Child' means a natural or adopted son or daughter of the employee under eighteen (18) years of age; ... The term 'child' includes a posthumous child, a child legally adopted or one for whom adoption proceedings are pending at the time of death, an actually dependent stepchild or an actually dependent acknowledged child born out of wedlock; ...
      B. All questions of relationship and dependency shall be determined as of the time of injury for purposes of income benefits for injury, and as of the time of death for purposes of income benefits for death."

      . Id.

      . Title 85 0.$.2001 § 22, Schedule of compensation, provides in pertinent part:
      "'The following schedule of compensation is hereby established:
      8. Income benefits for death. If the injury or occupational disease causes death, income benefits shall be payable in the amount and for the benefit of the persons following, subject to the maximum limits specified hereafter:
      (a) Benefit amounts for particular classes of dependents.
      (1) If there is a surviving spouse, to such surviving spouse seventy percent (70%) of the average weekly wages the deceased was earning. In no event shall this spousal income benefit be diminished.
      (2) If there is a child or children, to such child or children fifteen percent (15%) of the average weekly wages the deceased was earning for each child. Where there are more than two such children, the income benefits payable for the benefit of all children shall be divided among all children, to share and share alike, subject to the provisions of subparagraphs (c) and (d) of this paragraph.
      (3) In addition to the benefits theretofore paid or due, two (2) years' indemnity benefit in one lump sum shall be payable to a surviving spouse upon remarriage.
      (5) The income benefits payable for the benefit of any child under this section shall cease: ... c. When the actually dependent child ceases to be actually dependent, ...
      9. Where some pecuniary loss may be shown by heirs-at-law of the deceased, as defined by the descent and distribution statutes of Oklahoma, who are otherwise not entitled to receive benefits under other provisions of this section, such heirs-at-law shall receive compensation for their pecuniary loss not to exceed an aggregate of Five Thousand Dollars ($5,000.00). ..."

      . Id.

      . Title 85 0.$.2001 § 3.1, see note 8, supra.

      . Id.

      . Title 85 0.$.2001 § 3.1, see note 8, supra.

      . See also, Falcon Drilling Co. v. Thompson, 1981 OK 108, ¶ 13, 634 P.2d 723 [Support test used to determine actual dependance on deceased workers' mother.].

      . P.F.L. Life Ins. Co. v. Franklin, 1998 OK 32, ¶ 26, 958 P.2d 156; Lacy v. Schlumberger Well Service, 1992 OK 54, ¶ 7, 839 P.2d 157; Parks v. Norman Municipal Hospital, 1984 OK 53, ¶¶ 12-13, 684 P.2d 548.

      . P.F.L. Life Ins. Co. v. Franklin, see note 16, supra; Parks v. Norman Municipal Hospital, see note 16, supra.

      . - See trial transcript, notes 2 and 4, supra.

      . Johnson's deposition testimony provides in pertinent part at pp. 16-17:
      "... Q. Okay. And what was your understanding of his relationship with Becky Bryan's children?
      A. There was no relationship.
      Q. When did-did he keep up with the children at all?
      A. No....
      Q. Okay. Had he given them any support?
      A. No....
      Q. (By Ms. Gan) Okay. Did he ever see the-Becky Bryan's children that you know of while he was living with you?
      A. No, he did not ..."
      Johnson also testified that she thought that Becky's children lived with their father.

      . Johnson's deposition provides in pertinent part at p. 5:
      "... Q, And when did you first start having a relation with Michael Bryan? A. September of '99...."

      . See, e.g., Stack v. Sawmill, 724 S.W.2d 735, 736 (Tenn.1987) [Separation because of poor economic circumstances and physical abuse was evidence of involuntary separation.]; Meyer v. A.B. McMahan Co., 269 Minn. 73, 130 N.W.2d 46 (1964) [Husband's drinking problem and failure to support family was evidence of involuntary separation.]; Beta Construction Co. v. District of Columbia Department of Employment Services, 748 A.2d 427, 432 (D.C.2000)[Evidence that spouse and decedent were living apart because decedent failed to provide support for the family combined with evidence of conjugal relationship supported finding of living apart for justifiable cause.]; Rogers v. University Motor Inn, 103 N.C.App. 456, 405 S.E.2d 770, 772 (1991) [Justifiable cause existed where wife left husband 12 years before death because of husband's alcohol ism and abusive, violent and paranoid behavior.]; Robinson Foundry, Inc. v. Moon, 503 So.2d 863, 865 (Ala.Civ.App.1987) [Evidence of husband's serious drinking problem and physical abuse of his children supported finding of living apart for justifiable cause.]; Utilities of Augusta, Inc. v. Jackson, 123 Ga.App. 78, 179 S.E.2d 563, 564 (1970) [No willful abandonment for spouse forced to leave because of heavy drinking and ill treatment.].

      . Hopkins v. Gibson, 1964 OK 213, ¶ 16, 395 P.2d 790; City of Duncan v. Coulter, 1964 OK 158, ¶ 0, 393 P.2d 863; Boardman Co. v. Eddy, 1961 OK 181, 10, 363 P.2d 821.

      . Akin v. Akin Distributors, Inc., 1963 OK 247, ¶ 18, 386 P.2d 769; Boardman Co. v. Eddy, see note 22, supra; Robberson Steel Co. v. State Indus. Court, 1960 OK 163, ¶ 15, 354 P.2d 211. See also, Matter of Swarer, 1977 OK 53, ¶ 13, 566 P.2d 126 [Pecuniary loss is a question of fact and supported by competent evidence.]; Sooner Const. Co. v. Brown, 1975 OK 171, ¶ 21, 544 P.2d 500; Meadow Gold Dairies v. Oliver, 1975 OK 67, ¶ 25, 535 P.2d 290.


source: Caselaw Access Project

author: DAVIS, Judge:

license: Public Domain

text:
    2003 UT App 275
    ROAD RUNNER OIL, INC., and Gavilan Petroleum, Inc., Petitioners, v. BOARD OF OIL, GAS AND MINING, Department of Natural Resources, Respondent.
    No. 20020710-CA.
    Court of Appeals of Utah.
    July 25, 2003.
    Rehearing Denied Sept. 29, 2003.
    Kelly Williams and Phillip W. Lear, Lear & Lear LLP, Salt Lake City, for Petitioners.
    Mark L. Shurtleff, Attorney Generals Office, and Kurt Seel, Assistant Attorney General, Salt Lake City, for Respondent.

      Before BENCH, DAVIS and GREENWOOD, JJ.
   OPINION

DAVIS, Judge:

T1 Road Runner Oil, Inc. (Road Runner) and Gavilan Petroleum, Ine. (Gavilan) appeal an order from the Board of Oil, Gas and Mining (Board) requiring Petitioners to permanently plug and abandon four wells in Duchesne County. We affirm.

BACKGROUND

{2 On November 9, 2000, Road Runner and Gavilan (collectively, Petitioners) were notified by letter from the Division of Oil, Gas and Mining (Division) that seven of their wells in Duchesne and Uintah Counties were not in compliance with Utah Administrative Code R649-3-86. This regulation requires owners of wells that have not been active or productive for five years to permanently plug the wells, unless the Division approves an extended shut-in time based upon a showing of good cause by the well operator. See Utah Admin. Code R649-8-36(8). The seven wells had not been active or productive for at least eight years. The Board's letter also noted that Petitioners were not in compliance with Utah Administrative Code R649-3-15 and-16, which deal with pollution and surface damage control of oil wells and reserve pits.

3 At Road Runner's request, the Division held an informal hearing on the matter on December 14, 2000. At this hearing, the parties agreed to enter into a consent decree by January 4, 2001, to address the Division's concerns. The Division reserved the right to proceed with adjudicatory proceedings in the event that a consent decree was not reached. The Division and Petitioners failed to reach a consent decree, and on April 27, 2001, the Division ordered Petitioners to clean up the Birch 1-25 Well within thirty days. Petitioners commenced the clean up process in a timely fashion. However, on June 22, 2001, a landowner complained that the Birch 1-25 Well, located on his property, had not been cleaned up properly.

T4 On July 10, 2001, the Division sought a Request for Ageney Action to order Petitioners to permanently plug and abandon the seven wells that were not in compliance with Utah's Oil and Gas Conservation Rules. On August 22, 2001, the Board conducted a hearing as a formal adjudication. The Board issued its Findings of Fact, Conclusions of Law and Order on September 7, 2001, concluding that Petitioners violated R649-3-36 at each of the seven subject wells and ordered the permanent plugging and abandonment of each well. Notwithstanding the express provisions of R649-38-36(1.8), Petitioners did not contest the accuracy of the Division's records concerning Petitioner's liability, or put on evidence of the downhole integrity of the wells. See Utah Admin. Code R649-3-36(1.3). Petitioners did put on evidence that various third parties may have an interest in taking responsibility for the wells. The Board held this order in abeyance for a period of six months to allow Petitioners an opportunity to ascertain whether a third party, Wind River Resources Corporation (Wind River), would be interested in acquiring any of the seven wells. As a condition for this six-month abeyance, Road Runner and Gavi-lan were ordered by the Board to "take action to address all immediate threats to public safety, health and welfare within sixty (60) days of [the] Order." The Order also notified the parties of their rights to reconsideration and judicial review.

1 5 On February 27, 2002, at the end of the six-month abeyance period, the Board convened another hearing. "The purpose of the hearing was to allow Road Runner and Gavi-lan an opportunity to report on those arrangements [with Wind River] and thereby show cause why the wells ... should not be plugged and abandoned as ordered on September 7, 2001." At the hearing, Wind River indicated "its continued interest in and progress toward unit operation" covering three of the seven wells, known as the Roosevelt Unit Wells. However, Wind River "declined ... to take over operation of the [remaining four wells, known as thel Duchesne County Wells." Subsequently, in its Findings of Fact, Conclusions of Law and Order dated April 12, 2002, the Board again ordered Petitioners to plug and abandon the four Du-chesne County Wells in which Wind River had no interest. As part of its reasoning, the Board found that the evidence of the "potential viability of the Duchesne County Wells is speculative, not supported by downhole evidence as required by [Utah Administrative Code] R649-8-36(1[.8] ) and does not demonstrate what waste would be prevented or correlative rights protected by allowing [Utah Administrative Code] R649-3-86 to continue to be violated." The Board also found that Petitioners had remedied "all surface conditions which constitute immediate threats to health, safety, and welfare at the well sites with the exception of remediating the emergency pit for the Sorenson [ ]1-6 Well."

{6 On May 10, 2002, Petitioners filed a "Petition to Modify Order or in the Alternative Petition for Rehearing." The Board granted the petition for the purpose of rehearing certain issues to resolve any ambiguity between its September 7, 2001 order and its January 8, 2002 order, each of which discussed different purposes for the February 27, 2002 hearing. Specifically, the September 7, 2001 order stated that the purpose of the February 27, 2002 hearing was to determine if Road Runner had made arrangements with Wind River to take responsibility for the wells The January 8, 2002 order stated that the purpose of the February 27, 2002 hearing was to have Road Runner and Gavilan "present their report evaluating the subject wells for primary and secondary recovery of oil and gas resources or for plugging and abandoning." In a May 31, 2002 order, the Board set a July 31, 2002 hearing date and limited the petition and parties to addressing five questions.

T 7 Testimony and arguments presented at the July 31, 2002, hearing resulted in the Board's August 16, 2002 order. This order reaffirmed the Board's previous orders to "plug, abandon, and restore" the Duchesne County Wells. Specifically, the Board found that the six-month abeyance period granted by the Board was to ascertain the interest of Wind River in taking over production of the wells. The Board also concluded that when considering the option of allowing a well operator to keep its wells shut-in longer than one year, the analysis under R649-3-86 "constitutes a weighing and balancing of various factors including, but not limited to, the benefits of [sic] society of keeping the well shut-in[ ] against the risk the well poses to human health, safety and the environment." In addition to considering the length of time that the wells had been inoperable or inactive, the Board also concluded that "[wlell integrity data are a specific factor to be weighed as part of the good cause test." In reaching its decision, the Board concluded that "[Road Runner and Gavilan] failed to carry their burden of demonstrating good cause to keep the Duchesne Wells shut-in."

T8 Road Runner and Gavilan now appeal the Board's decision to order plugging, abandonment, and restoration of the Duchesne County Wells. We affirm the Board's decision.

ISSUES AND STANDARDS OF REVIEW

T9 On appeal, Road Runner and Gavilan argue the following substantially prejudiced them: (1) the Board's decision was not based upon substantial evidence; (2) the Board ignored evidence demonstrating good cause; (3) the Board erroneously interpreted and applied Utah Administrative Code R649-3-36; (4) the Board's decision was arbitrary and capricious, and contrary to the Board's prior practice; and (5) the Board's decision was an abuse of discretion and contrary to a rule of the Board.

110 "Under Utah Code Ann. § 63-46b-16(4) [(1997) ], the appellate court reviewing an agency action may grant relief if 'the ageney has erroneously interpreted or applied the law' and a party has been 'substantially prejudiced." Hegarty v. Board of Oil, Gas, and Mining, 2002 UT 82,¶ 17, 57 P.3d 1042 (citation omitted). "A party alleging substantial prejudice from agency action is entitled to relief only if the agency action is not supported by substantial evidence." Board of Equalization v. Sinclair Oil Corp., 853 P.2d 892, 892 (Utah 1993). Furthermore, when challenging an agency action as not based upon substantial evidence, appellants have a duty to "marshal all of the evidence supporting the findings and show that despite the supporting facts, the [Board's] findings are not supported by substantial evidence." First Nat'l Bank of Boston v. County Bd. of Equalization, 799 P.2d 1163, 1165 (Utah 1990).

ANALYSIS

[11 Utah Administrative Code R649-8-36 delineates the procedures that must be followed if an oil well operator desires to shut-in or temporarily abandon its wells for a period longer than twelve months.

1. Wells may be initially shut-in or temporarily abandoned for a period of twelve (12) consecutive months. If a well is to be shut-in or temporarily abandoned for a period exceeding twelve (12) consecutive months, the operator shall file a Sundry Notice providing the following information:
1.83. An explanation and supporting data if necessary, for showing the well has integrity, meaning that the casing, cement, equipment condition, statice fluid level, pressure, existence or absence of [uJnder-ground [sources of [d}rinking [wlater and other factors do not make the well a risk to public health and safety or the environment [ {collectively referred to as "down-hole integrity") ].
2. After review the Division will either approve the continued shut-in or temporarily abandoned status or require remedial action to be taken to establish and maintain the well's integrity.
8. After five (5) years of nonactivity or nonproductivity, the well shall be plugged in accordance with R649-8-24, unless approval for extended shut-in time is given by the Division upon a showing of good cause by the operator.

Utah Admin. Code R649-38-86(1), -86(1.8), - 36(2)-(8). Petitioners argue that they did not need to show downhole integrity of the wells to obtain an extension of shut-in status of their wells. Petitioners also argue that although the four Duchesne County wells have not been active or productive for more than five years, "they were substantially prejudiced by the Board's failure to base its finding that Petitioners did not show 'good cause' on substantial evidence."

I. Downhole Integrity and Substantial Evidence

112 We begin by analyzing Utah Administrative Code R649-3-86(1.8), which requires a well operator seeking an extension of shut-in status to show that the wells "halve] integrity, meaning that the casing, cement, equipment condition, static fluid level, pressure, existence or absence of [uJnder-ground [slources of [dJrinking [wlater and other factors do not make the wellfs] a risk to public health and safety or the environment." Petitioners argue that since the Board did not require them to show down-hole integrity of the Duchesne County Wells until the July 31, 2002 hearing, they were only required to remediate surface conditions. This regulation, however, clearly places an affirmative duty upon any well operator to provide evidence of downhole integrity respecting any well shut-in or temporarily abandoned for a period exceeding twelve months. See Utah Admin. Code R649-3-86(1), (1.3). At the August 22, 2001 hearing, Petitioners elected to focus upon the potential sale of the wells rather than address this duty.

113 Furthermore, Petitioners argue that the Board's requirement of conducting only surface clean-up at the well sites limited Petitioners' obligation. Utah Administrative Code R649-8-86(2) provides that the Board may "require remedial action to be taken to establish and maintain the well's integrity." Utah Admin. Code R649-8-86(2). Here, the remedial action was a precondition to a six-month extension for the limited purpose of determining whether another operator could take over wells that "shall be plugged" pursuant to R649-8-36(8). Utah Admin. Code R649-3-86(8). Temporary remedial action for a limited purpose does not entitle the operator to, nor show good eause for, continued shut-in status.

II. Good Cause and Substantial Evidence

14 Next, we analyze Utah Administrative Code R649-38-86(8). This rule mandates plugging an oil well that has been inactive and nonproductive for five years. See id. The Board has discretion to extend a well's shut-in status if the operator shows "good cause" for the extension. Id. The rule places the burden of showing good cause upon the well operator. See id. "There is no settled understanding of what 'good cause' means; since the determination depends to a large extent upon the facts of each case, a wide latitude of discretion is necessarily vested in the trial judge." Jackson v. Kennecott Copper Corp., 27 Utah 2d 310, 495 P.2d 1254, 1255 (1972).

I 15 "Under [Utah Code Ann. § ] 63-46b-16(4)(g)[ (1997) 1, we uphold the Board's findings of fact if they are supported by substantial evidence." Hegarty v. Board of Oil, Gas, and Mining, 2002 UT 82,¶ 17, 57 P.3d 1042. "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Grace Drilling Co. v. Board of Review of the Indus. Comm'n of Utah, 776 P.2d 63, 68 (Utah Ct.App.1989) (citation omitted). When determining if an agency decision is based upon substantial evidence, "we review the whole record before the court." Id. (quotations omitted). This review "consider[s] not only the evidence supporting the Board's factual findings, but also the evidence that 'fairly detracts from the weight of the [Board's] evidence.'" Id. (second alteration in original) (footnote and citations omitted). "[This] whole record test necessarily requires that a party challenging the Board's findings of fact must marshall ] all of the evidence supporting the findings and show that despite the supporting facts, and in light of the conflicting or contradictory evidence, the findings are not supported by substantial evidence." Id. (emphasis omitted) (quotations and citations omitted). If "inconsistent inferences can be drawn from the same evidence, it is for the Board to draw the inferences." Id. "We now review ... the record to determine whether the Board's findings are supported by substantial evidence." Id. at 68 n. 7.

{16 The record contains substantial evi-denee supporting the Board's decision. Petitioners note that the Duchesne County Wells have been inactive and nonproductive for between cight and eighteen years despite the testimony of Petitioners' experts that the wells "projected considerable economic viability." Permanently plugging and abandoning the wells could be costly to Petitioners and may impair future use of the well sites. In spite of the cost to plug and abandon wells that have "projected considerable economic viability," Petitioners have no plans to bring the wells into an active, productive state, nor could Petitioners secure the interest of a third party to bring the wells into such a state. One of the Division's rebuttal experts testified that "if there was utility to the well, we would see it in the form of someone actively wanting to produce these wells and get them back on line in a productive state."

T17 Petitioners also note that the Board required them to clean up and remediate adverse surface conditions at their wells. The Board took note of these conditions after one property owner expressed a concern for his family's safety due to the conditions at Petitioners' Birch 1-25 well site. However, with the exception of the Sorenson 1-6 Well site, all of the surface conditions identified by the Division have been remediated by Petitioners.

[18 The Board determined that granting an extension of a well's shut-in status after five years of inactivity would require meeting the minimum requirements for granting an extension of a well's shut-in status after twelve months of inactivity. As a result, Petitioners were required to demonstrate that their wells complied with the entirety of Utah Administrative Code R649-3-86. This would necessarily include a showing of down-hole integrity of the wells. The record is devoid of any information regarding the downhole integrity of the Duchesne County Wells.

19 In light of the foregoing, Petitioners failed to demonstrate the absence of substantial evidence to support the Board's decision. First, the wells had been shut-in in excess of five years, thus mandating that the wells should be permanently plugged. See Utah Admin. Code R649-3-86(8). Second, Petitioners failed to establish the downhole integrity of the Duchesne County Wells, as required by R649-3-86(1.3). Simply remedi-ating surface conditions in return for a six-month extension for a limited purpose under R649-3-36(2) does not meet all of the requirements of R649-3-86(1.8).

{20 In addition to satisfying the requirements of R649-3-86(1) and -86(1.3) as a baseline for applying for an extension of shut-in status, Petitioners were required to show good cause that their wells should not be permanently plugged. See id. R649-3-86(8). While economic waste may occur if the Duchesne County Wells are permanently plugged and abandoned, such waste is outweighed by the risks the wells pose to human health, safety, and the environment. These wells had not been active for at least eight years and one had not been active for as long as eighteen years. The condition of the Birch 1-25 Well site prompted a complaint from a landowner that the site was unsafe. Moreover, while Petitioners argue that these wells will be profitable, the complete lack of plans by Petitioners and lack of interest by third parties to bring the wells into an active state suggests otherwise. Furthermore, the Board, in its August 16, 2002 order, stated that "[wlell integrity data are a specific factor to be weighed as part of the good cause test." Petitioners failed to present well integrity data, which would aid in alleviating fears regarding threats to public safety from a well site that is not structurally sound.

1 21 We conclude that the Board based its decision upon substantial evidence.

III. Petitioners' Other Arguments

122 Our determination that the Board based its decisions upon substantial evidence impacts Petitioners' other arguments. Petitioners' second argument is that the Board ignored Petitioners' evidence, which substantially prejudiced them. Petitioners, however, fail to Mustrate how the Board ignored this evidence. The Board articulated specific, factual reasons when it found that Petitioners had failed to make a good cause showing. Here, the substantial evidence and regulatory framework relied upon by the Board simply outweighed Petitioners' good cause evidence.

[ 23 Petitioners' third argument is that the Board erroneously interpreted Utah Administrative Code R649-8-36. "When reviewing the [Board's] application of its own rules, this court will not disturb the [Board's] interpretation or application of one of the [Board's] rules unless its determination exceeds the bounds of reasonableness and rationality." Brown & Root Indus. Serv. v. Industrial Comm'n, 947 P.2d 671, 677 (Utah 1997). Since the Board's decision was based upon substantial evidence it falls clearly within the bounds of reasonableness and rationality.

€24 Petitioners fourth argument is that the Board's decision was arbitrary and capri-clous and contrary to the agency's prior practice. Claims that an agency action was arbitrary and capricious are reviewed for reasonableness and rationality. See R.O.A. Gen., Inc. v. Utah Dept. of Transp., 966 P.2d 840, 842 (Utah 1998) (ruling that a state ageney acted arbitrarily and capriciously because failing to follow its own rules is not a "reasonable and rational" interpretation of its own rules (quotations and citations omitted)). Again, because the Board based its decision upon substantial evidence that Petitioners failed to show good cause, the decision was reasonable and rational.

125 Claims that an agency decision is contrary to the agency's prior practice are also reviewed to determine if an inconsistency is justified by a "fair and rational basis." Steiner Corp. v. Auditing Div. of the Utah State Tax Comm'n, 1999 UT 58,¶ 14, 979 P.2d 357 (quotations and citation omitted). The heart of Petitioners' argument on this point relies upon testimony that the Board has not acted upon other wells that have been shut-in in excess of five years. While this assertion may or may not amount to "prior practice," Petitioners make no showing that the Board's actions in this case are inconsistent with actions involving a similar fact pattern. Further, the Board's inability to deal with every inactive well is not enough to prove that the Board has acted contrary to prior practice.

T26 Finally, Petitioners argue that the Board's decision was an abuse of discretion and contrary to a Board rule. Utah Code Ann. § 68-46b-16(4)(h)() (1997) gives appellate courts the authority to grant relief if the Board's action is "an abuse of the discretion delegated to the [Board] by statute." We defer to the Board's interpretation of the statute "when there is a grant of discretion to the [Board] concerning the language in question, cither expressly made in the statute or implied from the statutory language." Morton Int'l, Inc. v. Auditing Div., 814 P.2d 581, 589 (Utah 1991). The language of Utah Administrative Code R649-3-86 grants the Board wide discretion in determining if a well operator has shown good cause. See Utah Admin. Code R649-8-36(@8). We will not disturb an agency's ruling unless it exceeds "the bounds of reasonableness and rationality." Osman Home Improvement v. Industrial Comm'n, 958 P.2d 240, 243 (Utah Ct.App.1998) (quotations and citations omitted). Because the Board based its decision upon substantial evidence, the Board's decision did not exceed these bounds.

IV. Substantial Prejudice

T27 Although Petitioners argue that they have been substantially prejudiced by the Board's decision, because we conclude that the Board grounded its decision upon substantial evidence, we need not address this argument. However, it should be noted that "the test for substantial prejudice is not, as [Petitioners] claim{ ], the fact that [they] received an unfavorable result; rather, the test is whether [Petitioners were} given full and fair consideration of the issues." Commercial Carriers v. Industrial Comm'n, 888 P.2d 707, 713 (Utah Ct.App.1994). The Board allowed Petitioners to present and argue their position on three separate occasions, hence "[there is nothing [to] indicate [that] the Board failed to fully and fairly consider [Petitioners'] position." Id. Here, Petitioners simply received an unfavorable result.

CONCLUSION

128 We conclude that the Board found that Petitioners had not shown good cause based upon the regulatory framework and substantial evidence before the Board. Because the Board's decision was based upon substantial evidence, we need not address whether Petitioners were substantially prejudiced by the Board's order. Accordingly, we affirm the Board's decision to order plugging, abandonment, and clean-up of the Du-chesne County Wells.

129 I CONCUR: PAMELA T. GREENWOOD, Judge.

1 30 I CONCUR IN THE RESULT: RUSSELL W. BENCH, Judge.

      . Although this dispute originally involved seven wells, we now deal with only four wells in Du-chesne County (Duchesne County Wells). The Paiute Walker 1-7 well had been shut in for eight years. The other Duchesne County wells in question had been shut in for the following periods: fourteen years for Birch 1-25; at least fifteen years for Sorenson 1-5; and at least eighteen years for Sorenson 1-6.

      . Specifically, the Board asked:
      A. Was the Board's written order dated September 7, 2001, a final, appealable order regarding each Respondent?
      B. If so, under what legal authority could the Board['s] September 7, 2001 Order be modified by a subsequent written Board order in this matter?
      C. Did the Board exercise that legal authority, if any, and did it in fact modify its September 7, 2001 Order? When and how?
      D. Assuming the purpose of the February hearing was that described in paragraph D of page 4, of the Board Order dated January 8, 2002, what is the proper legal test(s) to be applied in regards to the wells in question, e.g., is the good cause test described at R64[9]-3-36 applicable, and if so, what constitutes good cause for this regulation. What are the factors to be weighed and balanced in deciding whether good cause had been demonstrated? Which party has the burden of proof to this legal test?
      E. In regards to the "Duchesne Wells[ ]" (as defined in the Board's Order dated April 12, 2002), very briefly describe the evidence supporting or refuting the legal test.
      Board of Oil, Gas and Mining, Findings of Fact, Conclusion[s] of Law and Order in Response to Respondent's Motion to Rehear, May 31, 2002, p. 5.

      . In making its determination of what constituted good cause, the Board adopted most of the good cause factors recommended by Petitioners. Petitioners urged adoption of the factors used by the State of Wyoming when determining whether wells should be plugged and abandoned. The factors used in Wyoming include: the economic viability of the wells; any waste that may occur if the wells are plugged; threats to health, safety, and welfare; and the results of mechanical integrity testing upon the wells.


author: ORME, Judge: DAVIS, Judge

text:
    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:

T1 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

T2 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, 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."

1 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.

T4 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. Sand-berg 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, and fell backward into the five-foot-deep pit, suffering severe injuries.

T5 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 subsequent ly 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. Sand-berg 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

16 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 instane-es."'" 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

17 The Utah Supreme Court has held:

In a legal malpractice action, a plaintiff must plead and prove (i) an attorney-client relationship; (i) a duty of the attorney to the client arising from their relationship; (@i) 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." Id. 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. § 63-80-8(1) (1997). The Act, however, cireumseribes 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. § 68-30-9, and for injuries "caused by a negligent act or omission of an employee committed within the seope of employment." Utah Code Ann. § 68-80-10 (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. § 68-30-10(1).

T 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. § 63-80-32 (2) If the activity undertaken was a governmental function, has another section of the Act waived that blanket immunity? (@) 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 68-80-10 waive the immunity Salt Lake City would otherwise enjoy under seetion 68-80-83. The parties disagree, however, as to whether the discretionary function exception of section 68-80-10(1) applies to the facts of this case.

110 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 "discere-tionary 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 1 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 TT21-283. The former are characterized "'"by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning,""'" Keegan, 896 P.2d at 625 (citations omitted), while the latter "'"concern routine, everyday matters, not requiring evaluation of broad policy factors." "'" Id. at 628 (quoting Frank, 613 P.2d at 520) (other citation omitted). Accord Trujillo, 1999 UT App 227 at ¶¶ 21-23, 986 P.2d 752.

%12 We also noted in Trujillo that "TiJmmunity is an affirmative defense which the defendant bears the burden of proving." Id. at 127. Accord Nelson, 919 P.2d at 574. Thus, if a defendant "posits immunity on ... an exercise of discretion, it must make a showing that a conscious balancing of risks and advantages took place." Little v. Utah State Div. of Family Servs., 667 P.2d 49, 51 (Utah 1983). This means that a defendant "must show that each act of alleged negligence qualifies as a discretionary function under the following four-part test," Trujillo, 1999 UT App 227 at ¶ 27, 986 P.2d 752:

"(1) Does the challenged act, omission, or decision necessarily involve a basic governmental policy, program, or objective? (2) Is the questioned act, omission, or decision essential to the realization or accomplishment of that policy, program, or objective as opposed to one which would not change the course or direction of the policy, program, or objective? (8) Does the act, omission, or decision require the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved? (4) Does the governmental agency involved possess the requisite constitutional, statutory, or lawful authority and duty to do or make the challenged act, omission, or decision?"

Little, 667 P.2d at 51 (quoting Evangelical United Brethren Church v. State, 67 Wash.2d 246, 407 P.2d 440, 445 (1965) (en banc).

113 Before turning our attention to the facts of the instant case, we note that application of the above test is "a fact-intensive inquiry that, by its very nature, is not particularly amenable to summary judgment." Trujillo, 1999 UT App 227 at ¶ 28, 986 P.2d 752. See also Laney v. Fairview City, 2002 UT 79,¶ 16, 57 P.3d 1007 ("Although a party's entitlement to discretionary function immunity is a question of law, a court must have sufficient facts before it to determine whether the challenged act, omission, or decision satisfies the four-part ... test."); Hansen, 794 P.2d at 846 (reversing dismissal of plaintiff's claims and remanding for further development of factual record regarding whether government decision was discretionary or operational).

III. Analysis of Sandberg's Claims

14 Sandberg argues that Salt Lake City "was negligent in failing to have a safety chain or other [safety] barrier along the edge of the pit and in maintaining a dangerously narrow sidewalk along the pit." Lehman responds, inter alia, by arguing that the overall design of the Landfill involved policy making and, because "the pit, the sidewalk, and the absence of any chain or barrier" are safety aspects of that design, any decisions relating to those features are also matters of policy. In addition, Lehman asserts that the specific safety features at issue were considered and rejected after discussion by policy-making bodies such as the Salt Lake County Public Works Department and the Council. Thus, Lehman contends, Salt Lake City was entitled to discretionary function immunity for the claims Sandberg would have asserted against it.

115 We need not analyze Sandberg's claims under all four prongs of the Little test because we readily conclude that Lehman has not met its burden under the third prong. See Little, 667 P.2d at 51 ("To be purely discretionary, an act by the [government] must be affirmed under [all] four preliminary questions[.]"). In other words, on the record before us, and viewing "the facts and all reasonable inferences drawn therefrom in the light most favorable to [Plaintiff]," Norman v. Arnold, 2002 UT 81,¶ 2, 57 P.3d 997, Lehman has not shown that the decisions leading to the omission of certain safety features at the pit were the result of "basic policy evaluation, judgment, and expertise on the part of [Salt Lake City]." Little, 667 P.2d at 51.

16 For example, while it is clear that the initial decision of whether to build a citizens' unloading station was considered at length at the discretionary, policy-making level, it is unclear whether the particular safety measures at issue were considered at that level. Sandberg correctly notes that "in the entire six-inch stack of reports and plans [Lehman] filed to support its summary judgment motion, there is barely a mention of whether safety chains would be installed or how wide the sidewalks would be, and there appears to be no discussion of the costs and benefits of safety chains or sidewalk widths."

17 Indeed, Lehman devotes a good portion of its appellate brief detailing the steps the Council took in making the initial decision of whether "to design a new landfill with a private citizens' unloading facility." Sand-berg, howesver, does not challenge the Council's decision to build a citizens' unloading station. Rather, Sandberg alleges that the pit that was eventually built was unsafe, and further, that the omission of certain safety features at the pit cannot be considered a discretionary function where Lehman failed to show that "the safety features at issue were ... considered at review meetings with the Public Works Department or the Council" or that "[any] decision was made by the Public Works Department or the Council to omit such features" for reasons of policy.

118 In response, Lehman relies on the affidavit of Bud Stanford, the operations manager at the Landfill. The affidavit states, in relevant part, that "[the Public Works Dept. and the Council conducted review meetings at various points of design and construction[, and alt these meetings, all aspects of the design process, including whether to install additional safety feastures around the pit such as barriers like chains or poles were discussed and the decision was made not to install chains or poles." Later, however, when Stanford was deposed by Sand-berg's counsel, the following colloquy took place:

Q. Did the landfill council have anything to do with the changes to the widening of the sidewalk and putting up the barrier in 19967 Did they have anything to do with that decision, as far as you know"?
A.... [WJhen I made the answer to this interrogatory, we reviewed the minutes, and we couldn't find anything. So in official meetings that was probably-it probably was not discussed. We just did it on our own.
Q. All right. You testified earlier that the concept of the barrier was discussed among the engineers at some point.
A. No, there wasn't a big discussion.... There were other things that were much more important, such as the exact location, where are we going to put [the pit] on the site. The power lines that are close by, it was a big discussion. The exact dimensions of it. Groundwater ... table level was an issue. Who to hire, where are we going to get the money from to pay for it, those were the major discussions and topics. The chain-or barrier around the pit, was very minor, incidental discussions that went along with other parts of it. It was not-it was discussed, but not of any consequence.
Q. Was it ever brought up with the landfill council?
A. I believe it was in informal discussions.
... [(Wle'd discuss it, among other things ..., but it was a very minor issue. It was not a thing that we sat around and talked about like ... we're doing now. There has been more discussions on these handrails and these guardrails through this lawsuit, a thousand times more than was done at the time it was built.
Q. So there was no discussion with the landfill council about these are the benefits of ... the barriers, these are the risks of the barriers. We figure that if we put these in we will have this problem, if we don't put them in we will have this problem?
A. I don't honestly recall, but I don't think that would have happened, no.
Q. It was more of an engineering decision?
A. Uh huh (affirmative).
Q. Yes?
A. Yes....
Q. Do you know if [the Council] had any input as to whether the sidewalk was going to be nine feet as opposed to six feet?
A. [NJo. ... We just did that on our own. The best I can recall.
Q. So you don't know of any request by the [Council] for recommendations on whether to have a barrier around the pit or not?
A. Not a formal proposal in a formal meeting that there would be minutes of, no.
Q. Do you know of anything informal?
A. I think there were discussions-informal discussions sitting around a lunchroom table type thing.
Q. Would those discussions be the engineers, as opposed to the [Council]?
A. No, the landfill council. They would have-they like to know what's going on. They don't like to get into the minute to minute details. They leave that to us.
Q. Was this a minute to minute detail?
A. These railings are, yeah. Something they don't get involved with.
Q. Let me just recapitulate here, make sure I understand it. The decision on installing the barrier and widening the sidewalk in late 1996, you earlier testified, was made by engineers, made by you, without the input of the council. Is that right?
A. To the best of my knowledge, that is correct. In '96, we, as management, made that decision on our own. And the impetus on that ... there were [people who} had fallen in[to the pitl-we decided that we're just going to have to bite the bullet and do this. And so we did.

T 19 The above exchange casts substantial doubt on Lehman's assertions that safety measures at the pit were discussed at the policy-making level, whether at the time the pit was designed and constructed or even after Sandberg's accident, when the safety features were eventually installed. Rather, Stanford's deposition suggests that safety features at the pit, for whatever reason, did not receive attention at the policy-making level but were instead delegated to employees at the operational level. In any case, the affidavit of Stanford, especially when considered in conjunction with his own deposition, is insufficient to establish as a matter of law that "a conscious balancing of risks and advantages" of particular safety measures at the pit took place at the policy-making level. Little v. Utah State Div. of Family Servs., 667 P.2d 49, 51 (Utah 1983).

'I 20 The Utah Supreme Court's analysis in Keegan v. State, 896 P.2d 618 (Utah 1995), is instructive on this point. In Keegan, the plaintiff's husband was killed when his vehicle "skidded on black ice" on I-80, "climbed the concrete median barrier separating the eastbound and westbound lanes," and "collided with a bridge support pillar." Id. at 619. Plaintiff sued the State of Utah and the Utah Department of Transportation (UDOT), alleging that "they were negligent in failing to maintain the median barrier in a reasonably safe manner." Id. Plaintiff "asserted that although the barrier had originally been constructed in accordance with [industry] safety standards ..., two subsequent surface overlay projects had shortened the barrier below [those] standards, rendering the barrier unsafe." Id. In response, "UDOT and the State assert[ed] that the decision not to raise the concrete barrier during the surface overlay projects was a discretionary act shielded from liability under [the Utah Governmental Immunity Act.]" Id. at 623. The Court agreed.

[21 In applying the four-part Little test, the Court noted that UDOT had commissioned and relied on two studies in making its decision not to raise the barriers. The first study, conducted by UDOT's safety studies engineer, compiled "accident rates on the ... section of I-80 where the accident occurred and other comparable stretches of road." Id. at 624. The safety study conelud-ed that "not raising the barrier would not have an adverse effect on safety." Id.

1 22 The second study was conducted by a UDOT project design engineer and consisted of a cost/benefit analysis that "examined many factors[,] including the cost of removing and replacing the barrier, ... the added delays and inconvenience to users of the highway if the barrier were to be dug up and replaced, and the possibility that the job could not be completed inexpensively and with minimal disruption to traffic." Id. Because the above studies were "circulated throughout and debated within the department," the Court concluded that "the decision [not to raise the barriers] involved the basic policy judgment and expertise of the agency involved" and was "just the sort of policy-driven weighing of costs and benefits that the discretionary function exception was meant to protect." Id.

123 Here, in contrast, Lehman has not shown that policy-driven issues such as public safety and the costs and benefits of installing safety features at the pit were considered at the policy-making level. Lehman assures us that Paul Jara, Salt Lake City employee and project engineer for the citi-zeng' unloading station, researched "landfill designs" and "applicable industry standards," including "design features relating to safety and convenience of citizens." Even if Jara considered various safety options at the site before deciding not to include such features, it is far from clear that he was acting in a policy-making role as opposed to at the operational level, especially given the explicit reservation in the Interlocal Cooperation Agreement of policy responsibility to the Council. We faced a similar issue in Trujillo v. Utah Department of Transportation, 1999 UT App 227, 986 P.2d 752, and we therefore turn our attention to the facts of that case.

1 24 The plaintiffs in Tryjillo were injured while traveling on I-84 when a "pick-up truck veered into their lane and collided head-on with their motor home." Id. at T3. At the time of the Trujillos' accident, I-84, which is "normally a four-lane, divided highway," had been reduced to two lanes to accommodate a resurfacing project. Id. at 14. The two lanes were separated by "only two feet," and "hollow plastic barrels spaced at 100-foot intervals divided the traffic flowing in opposite directions." Id. The Trujillos sued UDOT, alleging that it "negligently failed to install concrete barriers to prevent crossover accidents in the area where the Trujillos' accident took place." Id. at 18. "The trial court granted summary judgment in favor of [UDOT], reasoning that 'the decision made by UDOT in planning and designing the I-84 resurfacing project ... was a discretionary act [entitled tol immunity ... under the discretionary function exception to the Governmental Immunity Act. " Id. at T9. The Trujillos appealed, and we reversed. See 1d. at I 1.

1 25 We noted, first, that "the traffic control plan was formulated by an unlicensed UDOT staff engineer-an employee who did not perform at the policy-making level." Id. at T 81. Further, we noted that

while the record on appeal contains a general description of the multi-level approval process for plans and specifications pertaining to the I-84 resurfacing project, UDOT's evidence does no more than establish the traffic control plan could have been discussed in these meetings. UDOT does not point us to evidence that the traffic control plan and the barrels-versus-barriers decision was in fact the subject of intense scrutiny and review. UDOT now characterizes the decision to use barrels as a "tough choice" between two traffic separation methods and draws our attention to the relative risks and benefits of barrels and barriers. However, UDOT's evidence shows these issues were addressed only in private discussions between the project design engineer who drafted the traffic control plan and UDOT's Region One Design Engineer. These facts are insufficient to bring the formulation of the traffic control plan within the scope of discretionary function immunity.

Id. (emphasis in original). These facts substantially mirror the facts of the present case, where Lehman claims that "[alt each stage in the design process, the City held a meeting to discuss the plans" for the citizens' unloading station, and that "[alll throughout the design making process these entities focused on safety analysis." Lehman, however, does not provide citations to the record that support these claims. See J & M Constr., Inc. v. Southam, 722 P.2d 779, 780 (Utah 1986) (per curiam) (stating that an appellate court is entitled to "adequate, competent citations to the record" to support a party's factual contentions on appeal). Although the record indicates meetings may have been held at the 40%, 70%, and 100% design stage, only minutes from the 70% meeting are included in the record. Those minutes include a list of attendees, none of whom are obvious policy-makers and none of whose policy-making role is explained by Lehman. Moreover, the minutes contain no mention whatsoever of safety features at the pit. As we stated in Trujillo, evidence that safety features at the pit "could have been discussed in these meetings" is insufficient to establish that the decision to omit those features "was in fact the subject of intense scrutiny and review" at the policy-making level. 1999 UT 227 at ¶ 31 (emphasis in original).

126 Without referencing specific page numbers, Lehman also refers us to Jara's 136-page design report, which it claims contains "research, calculations and conclusions" relating to safety features at the pit. Any such information would establish only that Jara himself considered the inclusion of safety features at the pit; it would not establish that such matters were considered and rejected after discussion at the policy-making level. According to the Interlocal Cooperation Agreement between Salt Lake City and Salt Lake County, it is the Council's role, not Jara's, to "determine broad matters of policy regarding the operation and management of any solid waste processing and disposal facilities." See id. at 182 (noting that "while [various safety and] traffic-volume reports appear in the record, UDOT presented no . evidence that [such] reports were discussed in the course of approving the traffic control plan").

{27 At most, Lehman's evidence establishes that Jara may have discussed his decision not to install certain safety measures at the pit with Bud Stanford, manager of the landfill, and/or other operational employees such as staff engineers. As we stated in Trujillo, the fact that "these issues were addressed only in private discussions between [operational-level employees is] insufficient to bring the [acts of alleged negligence] within the scope of discretionary function immunity." Id. at ¶ 31. See Andrus v. State, 541 P.2d 1117, 1120 (Utah 1975) ("The decision to build the highway and specifying its general location were discretionary functions, but the preparing of plans and specifications and the supervision of the manner in which the work was carried out cannot be «labeled discretionary functions."); Carroll v. State, 27 Utah 2d 384, 496 P.2d 888, 891-92 (1972) (holding that "the decision of the road supervisor to use berms as the sole means of protection for the unwary traveler [from a trench resulting from road reconstruction] may properly be characterized as one at the operational level of decision making" that was not entitled to discretionary function immunity).

128 Lehman urges us to focus on "the nature of the governmental decision" at issue, le., Lehman argues that the safety aspects of the design of the pit are inherently policy-making functions,. UDOT advanced a similar argument in Trujillo, contending that "decisions regarding highway median design and lane separation are inherently discretionary functions." 1999 UT App 227 at ¶ 33, 986 P.2d 752. We rejected this argument in Trujillo, and we reject it now. "Utah cases interpreting the discretionary function exeeption have focused on the process by which decisions of governmental entities are made," id., not the subject-matter categories of decisions. Contrary to Judge Davis's suggestion, then, the distinction is not between decisions characterized as involving "maintenance" or "design," but between policy-based decisions and operational ones. This is not to say that the two will not sometimes coincide, but, as we stated in Trujillo, "we cannot assume UDOT's traffic control plan was the product of the exercise of policy-level discretion simply because it dealt with highway median design" when "UDOT proffered no evidence that the formulation of the traffic control plan and the decision to separate opposing lanes of traffic with hollow plastic barrels were '" 'the result of serious and extensive policy evaluation, judgment, and expertise in numerous areas of concern.'"'" Id. (quoting Keegan v. State, 896 P.2d 618, 625 (Utah 1995)) (other citations omitted).

1 29 Consequently, we cannot assume here that the decision to omit certain safety features at the pit was the result of serious discussion at the policy-making level when Lehman has failed to show that this decision was "ever specifically singled out for discussion, review, or approval at any point in the approval process." Id. at 15. Our cases have recognized that discretionary function immunity is "a distinct [and] limited form of immunity," Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996), that " 'should be confined to those decisions and acts occurring at the "basic policy-making level."'" Keegan, 896 P.2d at 623 (quoting Frank v. State, 613 P.2d 517, 520 (Utah 1980)) (other citation omitted). Such decisions and acts are "' "characterized by the high degree of discretion and judgment involved in weighing alternatives and making choices with respect to public policy and planning."'" Id. at 625 (citations omitted). Accord Trujillo, 1999 UT App 227 at ¶ 22, 986 P.2d 752. On the record before us, Lehman has failed to show that the decision to omit certain safety features at the pit was one involving the use of discretion and judgment at the immunized policy-making level." Accordingly, we decline to extend discretionary function immunity to the facts of this case. To so hold would subvert the important policies underlying this "distinet" and "limited" form of immunity.

CONCLUSION

T 30 On the record before us, Lehman has failed to show that Salt Lake City would have been entitled to discretionary function immunity had it been properly joined as a defendant in the underlying lawsuit. Therefore, we reverse the trial court's grant of summary judgment in favor of Lehman and remand for trial or such other proceedings as may now be appropriate.

31 I CONCUR:; PAMELA T. GREENWOOD, Judge.

DAVIS, Judge

(concurring in the result):

1 32 Sandberg alleges that Salt Lake City was negligent in the maintenance and design of the unloading station. - Because there is insufficient evidence in the record to establish that the maintenance of the unloading station was within the discretionary function exception, I concur in the result. I write separately because I disagree with the majority's conclusion that the record is insufficient to establish that the pit design approved by the Council "require[(d] the exercise of basic policy evaluation, judgment, and expertise on the part of the governmental agency involved." Little v. Utah State Div. of Family Servs., 667 P.2d 49, 51 (Utah 1983) (quotations and citations omitted); see Rocky Mountain Thrift Stores, Inc. v. Salt Lake City Corp., 784 P.2d 459, 463 (Utah 1989) (noting design, construction, and capacity of drainage system "required the ex-erceise of basic policy evaluation, judgment, and expertise").

183 The discretionary function exception requires "a showing that a conscious balane-ing of risks and advantages took place." Little, 667 P.2d at 51; see Trujillo v. Utah Dep't of Transp., 1999 UT App 227,¶ 27, 986 P.2d 752. The majority considers the alleged act of negligence in the present case to be the "omission" of barriers, a particular aspect of the design, although the Council may have approved the overall design at the policy-making level. Requiring "a conscious balancing of risks and advantages" for every conceivable negligent aspect of a design, where a design is approved at the policy-making level, could easily swallow the discere-tionary function exception.

134 Moreover, it will greatly burden the agency involved if, as the majority appears to maintain, under Trujillo, department employees cannot perform basic policy evaluation on behalf of agency officials. See Trujillo, 1999 UT App 227 at ¶ 31, 986 P.2d 752. Other decisions indicate the exercise of basic policy evaluation, judgment, and expertise may be delegated without "intense scrutiny and review," id., by agency officials See Duncan v. Union Pac. R.R. Co., 842 P.2d 832, 835 (Utah 1992) (holding "UDOT exercise[d] 'basic policy evaluation, judgment, and expertise' in utilizing a surveillance team to weigh the degree of hazard at the [railroad] crossings it inspects and to subsequently assign priorities to those crossings where the greatest hazard exists"); Gleave v. Denver & Rio Grande W. R.R. Co., 749 P.2d 660, 669 (Utah Ct.App.1988) (concluding "the third Little question must be answered affirmatively" where "UDOT's surveillance team ... weighs numerous factors relating to crossing safety" "[In applying UDOT's safety policy"); cf. Hansen v. Salt Lake County, 794 P.2d 838, 846 (Utah 1990) (noting "acts implementing the policy must be considered on a case-by-case basis to determine whether they are [operational and] and ministerial and thereby outside the immunity protections" (quotations and citation omitted)).

1 35 In the present case, it is undisputed that the Council hired the Salt Lake City engineering department to design the unloading station. Jara, as the station designer, studied designs of other unloading stations, including their safety features, and industry standards. He recommended to the Salt Lake City engineering department that barriers not be included in the final design because they could be hazardous to individuals unloading refuse. In his deposition, Stanford, the landfill operations manager, testified that chains and poles would "hinder and cause problems for the public ... [alnd we had a concern trying to be customer friendly ... [aind we thought it would hinder the public ... [aind that was one of our ... mandates." The Interlocal Cooperation Agreement indicates that one of the Council's duties is to "foster and promote safe and efficient solid waste disposal." It is undisputed that plans were subsequently cireulated to Salt Lake City departments and other entities for comment and that the pit design was approved by the Councils. I would conclude that this evidence is sufficient to establish that "basic policy evaluation, judgment, and expertise" was exercised on behalf of the Council, and therefore the pit design meets the third requirement of the discretionary function exception.

136 As the majority recognizes, one purpose of the discretionary function exception is to "shield those governmental acts and decisions impacting on large numbers of people in a myriad of unforeseen ways from individual and class legal actions, the continual threat of which would make public administration all but impossible." - Keegan v. State, 896 P.2d 618, 623 (Utah 1995) (quotations and citations omitted). Intensive seru-tiny of every conceivable aspect of a design at the policy-making level is inconsistent with this policy.

T37 The majority rejects Lehman's argument that the nature of the decisions involved, the safety aspects of the design, are inherently policy-making functions Although in Trwjillo a different panel of this court refused to consider the nature of the decision involved in concluding the discretionary function exception was inapplicable, see Trujillo, 1999 UT App 227 at ¶ 33, 986 P.2d 752, the majority in the present case acknowledges the nature of a decision may permit the inference that the decision involves basic policy evaluation in some instances. - However, the majority fails to adequately explain why such is not the case here where the safety features of an unloading station are at issue. " 'Courts have refrained from sitting in judgment of the propriety'" of a decision "'committed to one of the branches of our tri-partite system of government'" - Rocky Mountain Thrift Stores, Inc., 784 P.2d at 464 (quoting Little, 667 P.2d at 51). I would conclude the safety aspects of the unloading station in the present case involve basic policy evaluation that is best left to the ageney involved.

I 38 Accordingly, I concur in the result.

      . The Interlocal Cooperation Agreement details the composition of the five-member Council as follows:
      [One member of the Board of Salt Lake County Commissioners, designated by such Board; the Mayor of Salt Lake City; one elected official designated by the Salt Lake County Council of Governments who is not a member of the government[']s party thereto; one member of the Salt Lake City/County Board of Health or the Director of Health as designated by such Board; and one member with technical expertise in the field of solid waste disposal, said expert member to be selected by a majority of the other four members.

      . The concrete was icy because it was a cold day and it had snowed the night before.

      . Since the citizens' unloading station opened in 1991, a number of people have been injured by falling into the pit. At the time of Sandberg's injury, a six-foot sidewalk separated the driving surface from the edge of the pit, which was unguarded by barricades or chains. Soon after Sandberg's accident, the sidewalk was widened to nine feet and a chain was installed at the edge of the pit.

      . More specifically, " '[tlhe objective is to establish what the result [of the underlying litigation] should have been (an objective standard), not what a particular judge or jury would have decided (a subjective standard)." " Harline v. Barker, 912 P.2d 433, 440 (Utah 1996) (second alteration and emphasis in original) (citation omitted). Consistent with this principle, the parties agree that it is irrelevant that Salt Lake County, which would appear to enjoy whatever immunity Salt Lake City did, saw its way clear to settle with Sandberg for a substantial sum. We note there is at least one other case where sovereign immunity was apparently no bar to plaintiff's action against a municipality premised on a claim that the city was "negligen{t] in the construction and maintenance of the [city's] dump." Laws v. Blanding City, 893 P.2d 1083, 1084 (Utah Ct.App.) (noting case against city proceeded to trial on the merits), cert. denied, 910 P.2d 425 (Utah 1995).

      . Contrary to the engineer in Trujillo, Jara is a licensed engineer. This distinction, however, is insufficient to transform Jara into an employee who necessarily always functions at the policy-making level.

      . Although the 70% meeting minutes mention that "[gluardrail, chain and posts are being proposed as an addition to the northwest and southwest walls perpendicular to the pit," Jara explained that these measures were being proposed as an alternative to what are now known as the "Z-walls," an area containing wheeled recycling bins and located at the exterior of the citizens' unloading station, which, in Stanford's words, echoed by Jara, "has nothing to do with the pit where people threw garbage in, where Mr. Sand-berg fell in."

      . Although we had suggested otherwise in Trujillo v. Utah Department of Transportation, 1999 UT App 227,¶ 31, 986 P.2d 752, in limited circumstances it may be appropriate to infer the kind of weighing and analysis at the policy-making level that occurred in Keegan v. State, 896 P.2d 618, 624 (Utah 1995), but not in Trujillo. See, e.g., Laney v. Fairview City, 2002 UT 79,¶ 19, 57 P.3d 1007. Such an inference is not appropriate in this case where we have affirmative evidence suggesting that there was no such weighing and analysis at the policy-making level.

      . Lehman also refers in passing to portions of Jara's deposition where he states that safety measures at the pit were "brought up [with the council) in the planning stages," although he could not give "an exact date on that." At best, Jara's statements, which are inconsistent with Bud Stanford's deposition testimony, create a genuine issue of material fact as to whether safety measures at the pit were discussed at the policy-making level, thus making summary judgment inappropriate in this case. See Harline, 912 P.2d at 439 ("[Slummary judgment is appropriate ... when the facts are so clear that reasonable persons could not disagree about the underlying facts[.]").

      , - In this regard, Judge Davis argues that governmental agencies will be "greatly burden{ed]" if "department employees cannot perform basic policy evaluation on behalf of agency officials." We acknowledge that, in certain circumstances, some delegation of policy-making discretion may be appropriate, so long as it is explicit. In this case, however, we have no clear showing that the Council's policy-making role was delegated to Jara, or even that Jara, realizing it had been, undertook the requisite kind of weighing and balancing of policy-based considerations required by the case law. See, e.g., Little v. Utah State Div. of Family Servs., 667 P.2d 49, 51 (Utah 1983) (discussing defendant state's failure to conduct the requisite evaluations). We emphasize that discretionary function immunity, is, after all, an exception to the general rule that governmental agencies are not immune from lawsuits arising from injuries caused by "a dangerous or defective condition of any public building [or] structure," Utah Code Ann. § 63-30-9 (1997), or injuries caused by "a negligent act or omission of afgovernment] employee committed within the scope of employment." Utah Code Ann. § 63-30-10 (Supp.2002). Given this fact, together with our case law indicating that this exception should be narrowly construed, Lehman cannot avail itself of the discretionary immunity defense based on such a slender showing. See Nelson v. Salt Lake City, 919 P.2d 568, 575 (Utah 1996) (recognizing that "[nlearly all acts performed by government employees involve some amount of discretion," but noting that "discretionary immunity clearly was not designed to cloak the ancient doctrine of sovereign immunity in modern garb" and "should be applied only when a plaintiff is challenging a governmental decision that involves a basic policy-making function").

      . Lehman makes much of the fact that Salt Lake City hired EMCON, an independent consulting firm in Waste Management and Environmental Control, to review the preliminary plans for the citizens' unloading station. As Sandberg points out, however, the contract between EM-CON and Salt Lake City stated that "[EMCON's] review is not a detailed design review, but rather . a review of traffic patterns and necessary safety features for vehicles entering, unloading and then leaving the transfer station area." EM-CON submitted a report to Jara after completion of its review, which, in EMCON's own words, "focused primarily on dimensions, vehicle flow, and construction details." Although the report included a recommendation to "construct vehicle wheel stops along the Z-walls," as previously noted this area "has nothing to do with the pit . where Mr. Sandberg fell in," see supra note 6, and the report did not otherwise mention safety measures at the pit. Therefore, we do not consider the hiring of EMCON, nor the existence of its report, as evidence that Salt Lake City policymakers discussed and considered safety measures at the pit. And even if it should be so considered, it is evidence in conflict with other. material evidence, and on that basis summary judgment is not proper. See, e.g., Harline, 912 P.2d at 438-39.
      We are similarly unpersuaded by the fact that Lehman, during the course of this litigation, procured an affidavit from EMCON manager Richard Haughey in which Haughey states that "EM-CON believed at the time of its report and still believes that the design of a citizen unloading facility containing a pit without barriers such as chains or poles is not inconsistent with industry practices and is a safe design." The fact that Haughey currently believes the pit is safe does not establish that such matters were singled out for discussion before the Council, especially when Haughey's conclusions were not included in EMCON's original report.
      Furthermore, we note that application of discretionary function immunity does not turn on whether a decision made at the policy-making level was, in hindsight, good or bad. Rather, when it is shown that "the responsibility for basic policy decisions has been committed to one of the branches of our tri-partite system of government, the courts have refrained from sitting in judgment of the propriety of those decisions." Little, 667 P.2d at 51. Therefore, if Lehman had shown that the decision to omit safety features at the pit was made at the policy-making level, that decision would be entitled to discretionary immunity, even if that decision rendered the pit unsafe.

      . Similarly, we decline to infer that the pertinent policy discussions took place merely because Salt Lake City at some point "signed off" on the project as a whole. We reject the suggestion that general approval of a project at the policy-making level is somehow equivalent to discussion and consideration of safety measures at that level. Such an expansive view would render virtually every facet of a governmental project immune to suit under the discretionary function exception.

      . We emphasize that Salt Lake City, which is not even a party to this action, is not arguing that it is entitled to discretionary function immunity. Rather, Defendant Lehman, a law firm charged with malpractice, is arguing that Salt Lake City would have had such a defense available to it had it been joined as a defendant in the underlying lawsuit. Lehman's status as something of an outsider may explain in part the difficulty it had in meeting its burden to show that discretionary function immunity applies to the facts of this case, especially on summary judgment. See, e.g., Nelson, 919 P.2d at 574 ('Immunity is an affirmative defense which must be proved by the defendant.").

      . Sandberg also argues that, "to the extent that the Governmental Immunity Act bars [his] claim{,] the Act violates [the Open Courts provision] of the Utah Constitution." - In light of our disposition, we do not reach this issue.

      . In his affidavit, Jara attested that the plans "showed a pit with no barriers such as chains or poles." In his deposition, Stanford testified that the Council "signed off" on the plans, "so in theory they signed off to do this without a chain or railing by the pit." However, there is no evidence in the record that the sidewalk width was included in the plans.

      . To the extent Trujillo v. Utah Department of Transportation, 1999 UT App 227,¶ 27, 986 P.2d 752, expanded upon the law, it is not clear that it is controlling in the present case. See Hipwell v. Sharp, 858 P.2d 987, 989 (Utah 1993) ("It is well settled that an evaluation of the reasonableness of an attorney's services must be based on the law as it existed at the time such services were rendered, not after a subsequent legal malpractice action is filed."). The alleged act of negligence occurred when Sandberg's counsel failed to file notice of claim with Salt Lake City within a year of his injury. Sandberg's injury occurred in 1996. Thus, counsel's alleged negligence apparently occurred between 1996 and 1997. Trujillo was decided in 1999. See Trujillo, 1999 UT App 227, 986 P.2d 752.

      . EMCON's report recommended that wheel stops be added.

      . The majority relies upon Andrus v. State, 541 P.2d 1117 (Utah 1975). In Andrus, the State created "a dangerous condition by its design of [a] highway project which allowed large quantities of rain water to accumulate," which thereafter "cascaded upon" the plaintiffs' properties. Id. at 1120. During the project, the State failed to take "proper steps to provide for proper and adequate drainage of the surplus water." Id. Unlike in the present case, the decisions in An-drus were not "based upon policy considerations [nor] ... designed to influence the final outcome of previous policy choices. Rather, [the decisions] involved practical operational choices of how specifically to carry out some previously made policy-based decision." Keegan v. State, 896 P.2d 618, 625 n. 4 (Utah 1995).