I receive my fair share of criticism for writing about recent cases that involve surveyors who are still alive and kicking, for naming names and for pointing out the errors made by the surveyor. My reasons for doing this are manifold.




Primarily, it is because the case is recent that renders it relevant to today’s practitioner. Cases from the 1800s and even as late as the 1950s are often irrelevant, or have been overturned or rendered moot by subsequent cases and events.

Additionally, we really don’t start to see the surveyor being held liable until we reach the 1960s and later, Rozney v. Marnul 1 being the poster child for that argument. The cases involving surveyors and surveyor negligence begin to proliferate after this point and I feel it is important for surveyors to understand this. We do not operate in a vacuum.

The names in my articles are the names from the cases. I’m not going to make up names to protect the innocent or the guilty. These are public records and easily available to anyone with a computer and Internet access. The surveyors in these cases have many opportunities to opt out or settle way before the case even goes to trial. Even after a trial, I wouldn’t know anything about these cases unless I was personally involved or the case was appealed. Even if a case is appealed, the majority of them do not have a reported opinion. So the surveyors who are in these cases have chosen to be there of their own free will and they are there for a reason--our edification.

This brings us to our case-in-chief, Graves v. S.E. Downey Registered Land Surveyor.2 This case gives us an opportunity to clearly distinguish between a mistake and negligence. Are they one and the same? As my old law school professor used to say, “It all depends.”



What is a Tort?

Before we study the issues in our case-in-chief, we need to set our foundation for the understanding of torts. Simply put, a tort is “a civil wrong or injury, including an action for bad faith breach of contract, for which the courts will provide a remedy in the form of an action for damages.” This is a basic definition from Black’s Law Dictionary.

These civil wrongs for which a surveyor may be held liable include not only negligence, but fraud, trespass, nuisance, slander of title, outrage, and even mental or emotional harm. There may be others that a creative attorney might throw your way, and be assured, when the lawsuit comes, it will include as many of these claims as can reasonably be made. Some of these have not only actual damage awards but can carry punitive damages, as well.

The tort of negligence generally has four essential elements: (1) a duty; (2) breach of that duty; (3) the breach being the cause of the injury; and (4) resulting damages.3
In contrast, professional negligence has only three:

A claim of surveyor liability is founded on the three elements common to any tort: a breach of duty, causation, and damages. More specifically, to recover in an action for professional negligence, the plaintiff has the burden of proving: (1) the standard of care within the profession; (2) the defendant’s failure to adhere to the professional standards; and (3) that the defendant’s failure to adhere to the professional standards proximately caused harm to the plaintiff.4

What’s missing is establishment of the duty. In other words, in order for our average citizen to be liable for negligence, one must prove that this average citizen owed a duty that was subsequently breached causing damages to the plaintiff. In contrast, the professional service provider (especially surveyors, engineers, architects, attorneys and other regulated professionals) already owes a duty to the general public. So there are only three questions remaining: Was the duty breached? Did the breach cause the damages? And was the plaintiff actually damaged?

Why is the duty already owing for the professional service provider? If you read any enacting legislation that mandates the licensure of surveyors and creates the boards to administer the law, the clear intent is to protect the rights and the property of the general public. This creates a duty on the part of the licensee to do no harm.

In order to safeguard life, health, and property and to promote the public welfare, the practice of land surveying in this state is a learned profession to be practiced and regulated as such, and its practitioners in this state shall be held accountable to the state and members of the public by high professional standards in keeping with the ethics and practices of the other learned professions in this state….5

Will a mistake rise to the level of negligence? Only if all three of the remaining questions are answered in the affirmative.

We note that a mere difference of professional opinion does not establish professional negligence. Moreover, professional negligence is not established by proving that a professional opinion turned out to be erroneous. Rather, to recover for professional negligence based on an incorrect professional opinion, one must establish that the professional fell below the standard of skill and knowledge commonly possessed and utilized by members within the profession when rendering his opinion.6


Facts in the Case

The Graves own land abutting the Acadia National Park and other land controlled by the park in Hancock County, Maine. They planned to subdivide their land into three lots and build a house on the northernmost lot abutting the park’s land. Their contractor hired S.E. Downey Registered Land Surveyors, P.A., to perform a boundary survey and lot split. Subsequent to the survey, Graves’ contractor built the proposed house along with other improvements to the land. During construction, a park representative came by and informed Graves that they were building north of the boundary line and on park-controlled land. “After unsuccessful negotiations with Park officials, the Graveses moved the house onto land south of the disputed northern boundary at a cost of $110,589.”7

At trial, it was established that there were several deficiencies in the Downey survey. These deficiencies follow some old familiar patterns that we have discussed before. The first is that if the registered surveyor went to the field at all, the court record is clear that the unregistered staff performed most of the survey. “Stephen Downey, a registered land surveyor … and his son Patrick is an employee who, under the supervision of Stephen, did most of the work on the survey of the Graveses’ land.”8 “The court has noted several material flaws in the survey work performed by Patrick Downey and directly supervised by Stephen Downey, which work was then incorporated into the survey opinion attributable to both Patrick and Stephen Downey.”99

As with so many other cases of this sort, the thinking was flawed from the beginning. Instead of locating existing and established boundaries immediately adjoining the subject property or adjacent to it, Patrick Downey began the survey based on a deed of a property one-half mile away and projected his measurements across the subject property, apparently holding a fence line pointed out by Graves’ contractor. The “Downey survey used an old metal fence that had been pointed out by the contractor even though … Downey had no reason to believe that the contractor had information about the significance of the fence. … Downey also resorted to the deed of another parcel of land one-half mile away from the Graveses’ land and extended boundary lines from that deed.”10 How familiar is that?

Graves’ expert testified at the trial and proffered his opinion on the Downey survey:

The court heard from an expert witness who testified that S.E. Downey did not “exercise the skill, care and diligence required of members of the surveying profession” and did not “meet the standards of local practice exercised by reasonably prudent practitioners providing land surveying services in the Hancock County area.” The expert listed deficiencies in the S.E. Downey survey including “reliance on extrinsic evidence to the exclusion of the direct record evidence of the boundary.” The expert also testified that he was baffled at S.E. Downey’s conclusion that there was a gap between the southerly boundary of the Graveses’ land and the northerly boundary of MDI High School when every deed in the chain of title stated they were contiguous. The expert concluded: “The monuments in the Graveses’ deed are clear, they’re controlling, and the determination reflected by the Downey survey is inconsistent with all of the rules of evidence and rules of construction as far as I can determine.”11



Standard of Care

As with all such cases involving professional service providers, the standard of care must be provided by expert testimony at trial. Laymen cannot testify as to the standard of care that will be applicable to the surveyor or any other professional. Additionally, the standard of care isn’t established by slapping down a set of technical standards in the courtroom. A technical standard may help to establish the standard of care, but the ones I have read--at best--are a technical guide for evaluating a map of survey. Rarely, if ever, do they address the professional judgment that must be applied and, on review, present in the surveyor’s work. This is the work of the “reasonable man” or “prudent man” standard.

It is the duty of a land surveyor in his (her) profession to use that degree of knowledge, skill, and care ordinarily possessed and used by members of that profession, and to perform any service undertaken as a land surveyor, in a manner that a reasonably prudent land surveyor would use under the same or similar circumstance.12

The Maine Supreme Judicial Court addressed the issue of the standard of care that is applicable to surveyors for the first time in this case.

We have not had the occasion to state the standard of care owed by a land surveyor. Medical and legal malpractice actions are analyzed according to tort law principles instead of contract law, and in those cases liability is predicated on “deviation from the professional standard of care.” We have said that “standards for demonstrating the elements of professional negligence do not differ from profession to profession.” … The duty of care that the Superior Court imposed in this case required the Graveses to demonstrate that S.E. Downey’s work on the survey was below that of an ordinarily and reasonably competent land surveyor in like circumstances. Courts in other jurisdictions have articulated the duty of care of land surveyors in similar ways. For example, in West Virginia a surveyor is held to the standard of care that a “reasonably prudent surveyor” would have applied with regard to the same project. Both Maryland and North Carolina state that a surveyor must “exercise that degree of care which a surveyor of ordinary skill and prudence would exercise under similar circumstances.” We agree with the Superior Court that the duty of care a land surveyor is obligated to provide is that degree of care that an ordinarily competent surveyor would exercise in like circumstances.13



Mistake or Negligence?

Downey argued that this case was comparable to a simple boundary dispute. That is, Downey has one opinion as to where the boundary is located and the Graves, along with their expert, have another opinion. In essence, sometimes a mistake is simply a mistake and not negligence. The trial court and the Maine Supreme Judicial Court on appeal disagreed with Downey’s assessment of the case.

We agree with … Downey that simply because a court agrees with one surveyor more than another surveyor does not mean that one has committed professional negligence. However, a boundary dispute case and a professional negligence case are not the same because in the latter there must be evidence that the surveyor deviated from the standard of care. In this case the court did not merely disagree with … Downey’s methods or results; it concluded, based on the evidence, that S.E. Downey had not lived up to its professional obligation. The court made that determination after a thorough review of … Downey’s method and results and, importantly, after hearing from an expert as to how and why the S.E. Downey survey fell below the standard of care. The evidence was sufficient to establish S.E. Downey’s professional negligence, and it was sufficient to establish that the negligence proximately caused the Graveses’ damages.14

A mistake will not always rise to the level of negligence, but negligence will always hinge on a mistake. How much better to learn of these mistakes without having to make them ourselves.





References

1. Rozney v. Marnul, 250 N.E.2d 656 (Ill. 1969). Also see, 227 N.E.2d 156 (Ill. 1967).

2. Graves v. S.E. Downey Registered Land Surveyor, 885 A.2d 779 (Me. 2005).

3. Roberts, Michael L. and Gregory S. Cusimano, Alabama Tort Law, Third Edition, Sec. 1.0, Page 1.

4. Lawson v. Winemiller & Associates, 1995 Ohio App. LEXIS 2043, at 6 (Ohio App. 1995).

5. Code of Alabama 1975, Section 31-11-2(c), in pertinent part.

6. Lawson v. Winemiller, at 6.

7. Graves v. S.E. Downey, at 2, 3.

8. Id. at 780.

9. Id. at 781.

10. Id.

11. Id. at 780.

12. Alabama Pattern Jury Instructions, Sec. 25.20, Malpractice, Non-Medical Professionals.

13. Graves v. Downey, at 782.

14. Id. at 782, 783.

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.

This column is a forum for analysis and discussion of closed court cases. Facts and information cited are limited to what is contained in the published legal documents. It is not POB nor the author’s intent to re-try cases that have already been resolved and closed by the court system.