Several years ago (more than I want to count), I was putting together a program on liability and limitations on liability and ran across the 1994 Nebraska Supreme Court case of Lawyers Title v. Hoffman Engineers and Surveyors,1 (“Hoffman”). Title company v. surveyor cases always fascinate me for a number of important reasons, a few of which we will touch on, but the primary issues here are surveyor negligence, statues of limitation and professionalism. We are also going to look at the recent 2016 Nebraska Supreme Court case of Bixenmann v. Dickinson Land Surveyors,2 (“Dickinson”) handed down this past August, on these same issues and consider how the law turns.

Penny Wise and Pound Foolish

In 1989, Jiffy Lube International Inc. hired Hoffman to prepare an “as built survey” of a Jiffy Lube facility. Hoffman, in turn, farmed the survey out to Carrell & Associates Inc. (“Carrell”), which performed the as-built survey for $600. Yes, even in 1989 dollars this is a ridiculously low fee for an as-built survey of a small commercial property, especially if you compare it to the attorney’s fees of $12,346.72 to prosecute the case for Lawyers Title. The survey was performed for less than one half of 1 percent of what the lawyers charged to get an adjudication in the case. Of course, this was only the fees Lawyers Title paid. It is highly likely that all the other parties in the case paid similar fees … but I digress.

The survey was faulty (inaccurate) in that it failed to identify existing encroachments. Although not specifically stated, Lawyers Title must have removed the survey exception from the policy because it paid the damages for the encroachments that the survey did not identify. After paying the damages, Lawyers Title turned around and sued Hoffman, who turned around and sued Carrell, who turned around and sued Lamp, Rynearson & Associates Inc. (“Lamp”).3 It seems that Lamp had surveyed the same property in 1980 and Carell was attempting to hold Lamp ultimately responsible for the problem.

Without specifically stating the principle, apparently, Carrell was attempting to cast Lamp as the original surveyor that Carrell was simply following. Nevertheless, this point was not successfully made and Carrell’s complaint ended up being a bare conclusion that Lamp was responsible for Carell’s erroneous survey without sufficient facts to support the argument. “The petition states only that in 1980, Lamp ‘surveyed the property that is the subject of this lawsuit.’”4

But We Aren’t Professionals

In response to Carrell’s complaint, Lamp pled the Nebraska professional statute of limitations, that Lamp was not in privity of contract with Carrell and therefore owed no duty to Carrell, and as a matter of law Carrell was “obligated to personally perform any survey undertaken by it and to independently satisfy itself of the accuracy of pin placements.”5

Under Nebraska law, then as it is today, there is a statute of limitations for professional negligence, which provides in pertinent part, as follows:

Any action to recover damages based on alleged professional negligence … shall be commenced within two years next after the alleged act or omission in rendering … professional services providing the basis for such action; Provided, if the cause of action is not discovered and could not be reasonably discovered within such two-year period, then the action may be commenced within one year from the date of such discovery or from the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier; and provided further, that in no event may any action be commenced to recover damages for professional negligence … more than ten years after the date of rendering … such professional service which provides the basis for the cause of action.6

This is a typical professional negligence statute of limitations. It’s a two-year statute of limitations with a discovery period within which a hidden or otherwise undiscovered negligent act can be prosecuted, and a 10-year statute of repose beyond which time no action may be brought. The long and the short of it is, 10 years after preforming the professional services, the professional services provider is off the hook.

We are not given the exact dates, but presumably the 10-year period had lapsed before Carrell brought an action against Lamp because the trial court ruled in Lamp’s favor on this issue. Nevertheless, Carrell wasn’t afforded the protection of the statute because the Nebraska Supreme Court refused to consider whether land surveyors are “professionals” within the meaning of the statute.

The Legislature has not specifically stated which occupations are governed by § 25-222. … [W]e recognized that the term “profession” originally contemplated only theology, law, and medicine but that other vocations were later designated as a profession. We have applied the professional period of limitations … to architects and engineers; to accountants; to medical technicians; and to those giving investment advice. (Citations omitted). … Defining the class of persons who will receive the benefit of a shortened statute of limitations may require the court to engage in a form of classification which more properly should be done by the Legislature. On the limited facts articulated by this pleading, we decline to even consider whether surveyors render professional services ….7

The case was sent back to the trial court for further proceedings and that’s where we lose the story because there were no further appeals, so we can only speculate as to the ultimate outcome.

Or Are We Professionals?

Fast forward to 2010. The Bixenmanns own a piece of property that contained a large building that was used for storage. During the summer of 2010, the Bixenmanns entered into negotiations to sell the property. The buyers requested that the property be surveyed and the Bixenmanns agreed so long as the buyers paid for the survey. The buyers hired Dickinson Land Surveyors (“Dickinson”) to survey the property.

In completing the survey, Dickinson drove rebar monuments flush and set stakes firmly in the ground next to the monuments, leaving the stakes up about 12 inches. The grass surrounding the stakes was about 1 to 2 inches high, but the stakes “were visible, in plain sight.” Lawrence Bixenmann was present when the survey was being conducted and witnessed Dickinson doing some of the work. One evening, sometime subsequent to the survey, Bixenmann was unloading a lawnmower on the property, tripped over one of the stakes and fell, causing serious injury to his hip.

Bixenmann sued Dickinson for negligence and loss of consortium. In an affidavit that accompanied his summary judgment motion, Dickinson averred that marking the property corners as he did was standard practice, that he was familiar with the standard of care for surveyors in the State of Nebraska, and that he complied with the applicable standard when completing his survey of the property. Bixenmann did not provide expert witness testimony to contradict Dickinson’s affidavit, and the trial court granted Dickinson’s summary judgment motion as a matter of law, in that the “common knowledge” exception to expert witness testimony in a professional negligence action did not apply.

The district court recognized that under the “common knowledge” exception, a party may make a prima facie case of professional negligence even without expert testimony in cases where the evidence and circumstances are such that recognition of the alleged negligence may be presumed to be within the comprehension of laypersons. However, this common knowledge exception is limited to cases of extreme and obvious misconduct.8

On appeal, Bixenmann contends that Dickinson is not a professional, therefore, Bixenmann was not required to have expert witness testimony, that the “common knowledge” exception to expert witness testimony applied and that summary judgment should not have been granted. The entire case hinged on whether land surveyors are professionals or not.

Starting with this issue, the Nebraska Supreme Court weighed in:

This case initially presents a question of law which we have not previously decided: whether surveyors are professionals for purposes of professional negligence. Whether a particular vocation is a profession is a question of law that is determined independently of the trial court. … We have held that the requirement of a license to practice one’s occupation, although not dispositive, “strongly indicates that an occupation is a profession.” However, the requirement of a license alone does not make an occupation a profession, as the preparation and training required to procure that license are also important factors. Although we have held that a college degree indicates such preparation and training, a college degree itself is not required.9

After an examination of the licensing law, the examination requirements, Nebraska’s apprenticeship path to licensure, Nebraska’s four-year degree path to licensure, and continuing educational requirements, the court concluded:

It is clear, based on these statutory requirements, that registered surveyors have specialized knowledge, complete long and intensive training and preparation, are subject to high standards of achievement and conduct, are committed to continued study, and perform work of which the primary purpose is the rendering of a public service. Thus, we conclude that registered surveyors are professionals for purposes of professional negligence. Because the evidence shows that the owner of Dickinson was a licensed or registered surveyor, we conclude that he is a professional.10

Closing Thoughts

Your initial thought might be the same one that I had; well — yes — the Nebraska Supreme Court has previously considered the professional status of surveyors, but the court actually passed on that decision in the Hoffman case. I think it’s interesting that the court didn’t even address its earlier decision in Hoffman. Be that as it may, it seems clear that Nebraska surveyors will now come under the protection of the professional negligence statute of limitations.

Another truth that is apparent from Hoffman is that if the title company removes the survey exception based on an inaccurate survey and has to pay damages as a result, the surveyor will be sued for having incorrect results. As we have discussed on many occasions, that will most likely happen in the event of an ALTA survey where the survey exception is supposed to be removed. If you don’t understand the difference between precise measurements and accurate results, you had better take another look at the ALTA standards.

Lastly, your liability could “turn” on the size stakes you use. Use taller stakes.


Endnotes

  1. Lawyers Title Insurance Corp. v. Hoffman Engineers & Surveyors, et al., 245 Neb. 507 (Neb.1994).
  2. Bixenmann v. Dickinson Land Surveyors, Inc., 294 Neb. 407 (Neb.2016).
  3. I’ll take this as another play on “As the Law Turns.”
  4. Lawyers Title v. Hoffman, at 511.
  5. Id.
  6. Nebraska Revised Statutes § 25-222.
  7. Lawyers Title v. Hoffman, at 512-513.
  8. Bixenmann v. Dickinson, at 410.
  9. Id., at 412.
  10. Id., at 415.
     

Neither the author nor POB intend this column to be a source of legal advice for surveyors or their clients. The law changes and differs in important respects for different jurisdictions. If you have a specific legal problem, the best source of advice is an attorney admitted to the bar in your jurisdiction.