(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 Council1 "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").
*710183 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 752.2 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.3 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.4
*711136 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.
. 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. *711Unlike 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).