Point of Beginning

On the Level-When not to go the extra mile.

July 1, 2007


When I was a kid, I was taught that to get along in the world a person should do more than is expected of him. If a neighbor hired me to shovel snow from his driveway, I should clean his front steps and brush the snow off his car as well.

Later, when I was employed as a rookie surveyor, I knew I should stay at the end of my eight-hour day to clean the tape, store equipment and talk enthusiastically with the boss about the job we worked on that day. It is a work ethic that is guaranteed to endear one to an employer.

Then I went into the military for my obligatory tour of duty. There I learned the age-old bit of advice known well to every grunt in every branch of service: never volunteer for anything. If you got in the habit of volunteering for extra training, for instance, the next thing you knew you were the point man on a reconnaissance team in hostile territory. From these experiences I learned that life’s lessons become a contradiction for the inexperienced.

One way to reconcile these conflicting morsels of advice is to note that the military experience was involuntary and temporary (this was in the 1950s when we still had an obligation to serve, like it or not), whereas employment in one’s chosen field is intended to lead to lifelong advancement. The work ethic of the career environment is contrasted by a survival ethic of military employment--at least in the compulsory military employment.

The lessons of life can be inconsistent and reversible. Yes, it is possible to advance oneself by building a reputation of helpfulness. As professional surveyors and engineers in private practice, we want to solve our clients’ problems by delivering sound and practical services. Abe Lincoln said that a lawyer’s time and advice are his stock in trade; surveyors and engineers are in the advice business, too. In the land development/construction business we pick up all kinds of specialized knowledge and tricks of the trade, as it were. Sharing this wisdom with a client may be the best marketing most of us will ever do. But beware!

I recently testified on behalf of a surveyor who was sued in yet another stormwater drainage case. Neighbors downhill of a housing project were being flooded a few months after the houses were built. The surveyor’s services to the builder had been limited to staking out the houses and preparing simple plot plans to accompany applications for building permits. The negligence claim against the surveyor was that he should have told the builder that blasting out bedrock on the side of a hill and building houses there, without providing for a stormwater management system, would cause flooding of the neighbors’ properties. According to the claim, this was a breach of the surveyor’s duty and as a result, he owed a couple hundred thousand dollars to the plaintiffs.

In a negligence claim against a professional, a plaintiff must show that the professional had a duty to the plaintiff, that she breached that duty and that there were damages as a direct result of the breach of duty. In this case, there was extensive testimony about groundwater hydrology as to the flow of water through, around, under or over blasted-out bedrock, and some doubt on the subject of causation. But my role was to testify as to the duty of the surveyor and whether he met that duty.

The Massachusetts Board of Registration of Professional Engineers and Professional Land Surveyors has promulgated Rules of Professional Responsibility in the code of regulations known as 250 CMR 4.00. Under the section on competency, rule 4.03 states that “[r]egistrants shall perform services only in the area of their competence” and in 4.03(1) “only when qualified … in the specific technical field of engineering or land surveying involved.” The defendant surveyor in this case was a licensed surveyor (PLS) with many years of experience but was not a civil engineer and did not claim to have engineering expertise.

The plaintiffs claimed that the surveyor was hired to do “site planning” and as such should have advised the builder about stormwater issues. Unfortunately, as is often the case, there was no written contract between the surveyor and the builder, which would have shown the limits of the surveyor’s contractual duties. On the other hand, the plaintiffs had no way to show that the surveyor’s duty went beyond the definition of surveying according to the relevant Massachusetts statute. I was able to testify that the surveyor had no duty to advise his client about hydrology or stormwater management concerns.

In cross-examination by the plaintiffs’ attorney, I was confronted with the reasonableness argument. After all, the surveyor had, according to his own testimony, many years of experience working on construction sites and had provided surveying services many times for the construction of houses. Surely he was aware of problems with water on construction sites and as a result of changes in the contours of the land. Wouldn’t a builder expect such a professional to point out the dangers of building on blasted-out bedrock on the side of a hill? I agreed that a professional surveyor knows that water runs downhill but that he is not professionally qualified to advise on stormwater management issues. But, I was asked, shouldn’t the surveyor have volunteered advice from his own experience? I responded, “Do you mean should he have given gratuitous advice?” After a moment’s hesitation the attorney said yes, he should have. I replied that if he had given gratuitous advice he would have been in violation of the board’s rule on competency.

It is quite clear that a surveyor’s duty cannot be in contradiction to the rules of the board that registered (licensed) him in the first place. In this case the surveyor--if indeed he did recognize the problem--could have recommended to his client that he hire an engineer to deal with a possible drainage problem. But, however good such advice might have been, it is not a surveyor’s duty to recognize such problems and suggest a remedy. (The jury came back with a verdict for the defendant.)

So here is one more dilemma for the practicing professional. We want to go the extra mile, we want to be helpful and we know that by giving good advice we make ourselves indispensable to our clients. But we also have learned that we may expand our liability by assuming a duty beyond that proscribed by law and regulation. It is really unfortunate that our best instincts, growing out of a sound work ethic and a desire to please, are overruled by a liability exposure in the litigious business arena.