Summary
The Nebraska Supreme Court issued a supplemental opinion modifying its prior decision in a professional-negligence action involving land surveyor Dickinson Land Surveyors, Inc. The court withdrew syllabus points and portions of its analysis, holding that placing survey stakes was a professional act requiring expert testimony to establish the applicable standard of care. The court overruled the appellants’ motion for rehearing and otherwise left the prior opinion unmodified.
Topics
Practice areas
Questions Presented
- Whether placing survey stakes in the ground as part of professional surveying work constitutes a professional act or service rather than ordinary negligence.
- Whether expert testimony was required to establish the standard of care applicable to the alleged negligence.
- Whether the common knowledge exception to the expert-testimony requirement applied.
- Whether a professional land surveyor owes different standards of care to clients and nonclients based on the same factual predicate.
Holdings
- Placing survey stakes in the ground as part of surveying work qualified as a professional act or service because the setting of the stakes was an integral part of the professional service and involved professional judgment.
- An action alleges professional negligence rather than ordinary negligence when the alleged negligence involves the exercise of professional skill and judgment within the professional's area of expertise and concerns the propriety of professional decisions.
- Because the alleged act qualified as a professional act and determining negligence required knowing what an ordinarily prudent land surveyor would have done under similar circumstances, expert testimony was required to establish the standard of care.
- The common knowledge exception to the requirement of expert testimony did not apply because the alleged misconduct was not extreme and obvious and laypersons would need professional knowledge to determine what a surveyor should have done.
- Under the same factual predicate, a professional has one duty measured by one standard of care and does not owe one standard of care to clients and a different standard to everyone else.
Key quotations
“Whether an action alleges professional negligence or ordinary negligence depends on whether the professional’s alleged negligence required the exercise of professional judgment and skill.” (42)
“The same factual predicate cannot give rise to two independent obligations to exercise due care according to two different standards, because “a defendant has only one duty, measured by one standard of care, under any given circumstances.”” (43)
“We conclude that the act complained of qualified as a professional act and required expert testimony to establish the standard of care.” (43)
Factual background
The alleged negligence involved Dickinson Land Surveyors' placement of survey stakes in the ground during the performance of surveying work. The Bixenmanns argued that placing the stakes was ordinary negligence rather than professional negligence and that expert testimony was unnecessary under the common knowledge exception. The court concluded that decisions concerning the height, marking, and duration of the stakes involved professional judgment and required expert testimony to establish the applicable standard of care.
Procedural history
The appeal arose from the District Court for Douglas County. In the supplemental opinion, the Nebraska Supreme Court agreed with the district court that the common knowledge exception to the requirement of expert testimony did not apply and modified portions of its prior opinion by withdrawing syllabus points 9 and 10 and replacing the final two analysis paragraphs.