As we continue to Traverse the Law, I am seeing a general rise in litigation against surveyors over the results of their surveys. One charge in particular seems to be in vogue with attorneys suing surveyors, and that is slander of title. There are many reasons for this, but I suspect that the main reason could be the damages associated with a successful prosecution of the charge.
If a surveyor jumps over the existing fence along the established boundary line and drives irons in the ground, a charge of trespass would yield nominal damages and could also result in an award of actual damages for any property actually damaged. Unless the survey cuts a few trees down or destroys some crops in the process of driving the irons in the ground, actual damages could amount to an award of nothing. Black’s Law Dictionary defines nominal damages as:
“A trifling sum awarded to a plaintiff in an action, where there is no substantial loss or injury to be compensated, but still the law recognizes a technical invasion of his rights or a breach of the defendant’s duty, or in some cases where, although there has been a real injury, the plaintiff’s evidence fails to show its amount.” Id.
So even a successful prosecution of a trespass charge will not yield enough in damages to pay the filing fee of the lawsuit.
Professional negligence is another popular charge in an action against a surveyor. Damages in a professional negligence case are intended to be awarded in an amount that will make the plaintiff whole, or put the plaintiff back in the position the plaintiff was in before the negligent act.
Damages in a negligence case of a doctor amputating the wrong leg will be substantial. Damages in a negligence suit against a surveyor for driving an iron in the wrong place—not so much.1
Court costs, attorney’s fees, and fees of expert witnesses may or may not be considered as damages to the plaintiff and recoverable. There are only three ways to get your money back for the cost of litigation in the American system of jurisprudence. One way would be under the terms of a written contract, whereby the parties agree that the winner of a court action on the contract will be repaid for any costs. In a boundary dispute case your potential plaintiffs are your client and all adjoining landowners. You will not have a contract with the adjoiners, so only your client will be able to recover under the terms of a contract.
Another way to recover your cost is if there is legislation that allows for recovery of fees and costs. Reverse condemnation cases come to mind, but this method will not generally affect you as a practicing surveyor. There could be other legislative remedies for the cost of litigation under special circumstances, but I don’t have an example off-hand.
The final way is if you live in one of the states that recognize the court-made rule for the recovery of litigation costs, and it occurs quite often in boundary disputes cases but only in those states where the courts recognize the rule. The rule basically says that if actor A is forced into litigation to defend his or her rights because of the actions of B and C, then recovery may be possible.
“There is a substantial body of case law which holds that where the wrongful act of one person has involved another in litigation with a third person or has made it necessary for that other person to incur expenses to protect his interests, litigation expenses, including attorney’s fees, are recoverable.”2
All of this has led to a relative lack of litigation against negligent surveying activity because very few people are able to sue the surveyor due to a lack of funds and a general inability to recover costs even if the plaintiff wins the case. This has also led to the belief (by some) that surveyors are immune to prosecution. Don’t be mistaken, surveyors do get sued (see endnote 1, below), but it takes a special plaintiff with disposable funds do to so.3 Also, surveyors often end up in court proceedings, but they are not personally sued even though they caused the “train-wreck”—because there is nothing to recover.
Slander of Title
Slander of title is a potential game-changer and this, I believe, is why I am seeing more activity with this cause of action. Slander of title has the potential to be a large payout for a plaintiff because the damages are measured by the impact on the salability of the property. If the plaintiff owns property worth $1,000,000 and the result of the surveyor’s survey is to place a cloud on 10 percent of the property, reducing the salability to $900,000, then the damages are $100,000.
“Disparagement of title, also known as slander of title, occurs when a person, without a privilege to do so, publishes a false statement that disparages title to property and causes pecuniary loss. The elements of the tort are (1) publication, (2) absence of justification, (3) falsity and (4) direct pecuniary loss. What makes conduct actionable is not whether a defendant succeeds in casting a legal cloud on plaintiff’s title, but whether the defendant could reasonably foresee that the false publication might determine the conduct of a third person buyer or lessee. The gravamen of the tort is the damage to the salability of the property.”4
Publishing in a slander action simply means telling someone else the slanderous accusation about the plaintiff’s good title. In other words, when you deliver your survey to your client which indicates a cloud on the neighbor’s title, you have published. You may also have just started the lawsuit.
The Litigation Privilege
The litigation privilege is all about slanderous accusations made in the course of litigation. It comes to us from the English common law where it was deemed that judges, lawyers and witnesses needed to be protected from the fear of reprisal lawsuits for things that they might say in court that could otherwise be characterized as libelous. The early Massachusetts case of McLaughlin v. Cowly5 explains:
“It was stated in the opinion of this court … that it seems to be settled by the English authorities that judges, counsel, parties and witnesses are absolutely exempted from liability to an action for defamatory words published in the course of judicial proceedings; and that the same doctrine is generally held in the American courts, with the qualification, as to parties, counsel and witnesses, that their statements made in the course of an action must be pertinent and material to the case. … The qualification of the English rule is adopted in order that the protection given to individuals in the interest of an efficient administration of justice may not be abused as a cloak from beneath which to gratify private malice.” Id.
The privilege is not unfettered. Given that the United States is largely a common law country, it is probably safe to assume that the privilege is applicable in most jurisdictions. The question, it seems, is how far the privilege extends. Does it only include judges, lawyers and parties to the litigation, or does it extend to expert witnesses as well? Does it only apply to proceeding in actual litigation or to proceedings and activities leading up to litigation, such as a survey of the property in preparation for litigation? Unfortunately, these are questions that can only be answered on a jurisdiction-by-jurisdiction search for the court’s treatment of the privilege.
A series of Florida cases seems to have cleared up some of these questions, at least in Florida. In the DelMonico v. Traynor6 decision, the Florida Supreme Court made a clear distinction between “absolute immunity” as “the principle of the litigation privilege in Florida, essentially providing legal immunity for actions that occur in judicial proceedings”7 (including quasi-judicial proceedings and depositions), and a “qualified privilege” that applies to “ex-parte,” and “out-of-court” actions not subject to judicial oversight. This would include surveying activity leading up to litigation.
In the Fischer v. Debrincat and Debrincat8 decision, the Florida Court of Appeals reaffirmed Delmonico and other Florida Supreme court decisions on the issue of the privilege of immunity.
The Florida Supreme Court eventually extended the litigation privilege doctrine beyond its traditional application to defamatory statements, holding that “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortious behavior … so long as the act has some relation to the proceeding.” The supreme court reasoned: “Just as participants in litigation must be free to engage in unhindered communication, so too must those participants be free to use their best judgment in prosecuting or defending a lawsuit without fear of having to defend their actions in a subsequent civil action for misconduct.”9
In the case of Echevarria, et. al. v. Cole,10 the Florida Supreme Court explained that “[t]he litigation privilege applies across the board to actions in Florida, both to common-law causes of action, those initiated pursuant to a statute, or of some other origin.”11 In the Fischer case, the Court of Appeals reaffirmed Echevarria while carving out the lone exception to coverage under the absolute privilege of immunity doctrine, being “malicious prosecution.” From a surveyor liability standpoint, this is a positive movement in the law.
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In my experience, the litigation privilege applied to surveying activity does not seem to be on defense attorneys’ radar, but now you know it could be protected if you are sued for slander of title because of a survey. As I have said for a long time, you need to know the law that governs your practice.
- I realize that larger firms will generally carry liability insurance as well as many small surveying companies and solo-operators, and that the insurance company may want to pay a settlement fee on these small issues to avoid the cost of litigation, but that is somewhat beside the point of this column.
- Bull v. Pinkham Engineering, 752 A.2d 26, (Vt.2000).
- Title companies come to mind, if, for instance, they remove the survey exception and because of your negligence they have to pay out on the policy.
- Buddhist Monastery and Zen Temple v. Nelidov, 2006 Cal.App. Unpub. LEXIS 2766, 2 (Cal.App.2006). Unpublished opinion, overturned on other grounds. Curiously enough, overturned on the applicability of the litigation privilege.
- McLaughlin v. Cowley, 127 Mass. 316, 319 (Mass.1897).
- DelMonico v. Traynor, 116 So.3d 1205 (Fla.2013).
- Id. at 1214.
- Fischer v. Debrincat and Debrincat, 169 So.3d 1204 (Fla.App.2015)
- Id. at 1206, 1207.
- Echevarria, et.al. v. Cole, 950 So.2d 380 (Fla.2007).
- Id. at 384.
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.