Bixenmann v. Dickinson Land Surveyors , 294 Neb. 407 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/05/2016 09:11 AM CDT
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
Lawrence M. Bixenmann and Norma J.
Bixenmann, appellants, v. Dickinson
Land Surveyors, Inc., appellee.
___ N.W.2d ___
Filed August 5, 2016. No. S-15-695.
1. Malpractice: Expert Witnesses: Presumptions: Words and Phrases.
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.
2. Malpractice: Expert Witnesses: Words and Phrases. The “common
knowledge” exception for professional negligence purposes is limited to
cases of extreme and obvious misconduct.
3. Summary Judgment: Appeal and Error. An appellate court will
affirm a lower court’s grant of summary judgment if the pleadings
and admitted evidence show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from
those facts and that the moving party is entitled to judgment as a matter
of law.
4. ____: ____. In reviewing a summary judgment, an appellate court
views the evidence in the light most favorable to the party against
whom the judgment was granted and gives that party the benefit of all
reasonable inferences deducible from the evidence.
5. Malpractice: Words and Phrases. Whether a particular vocation is a
profession for professional negligence purposes is a question of law that
is determined independently of the trial court.
6. ____: ____. The requirement of a license to practice one’s occupation,
although not dispositive, strongly indicates that an occupation is a pro-
fession for professional negligence purposes.
7. ____: ____. Registered surveyors are professionals for purposes of pro-
fessional negligence.
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Nebraska Supreme Court A dvance Sheets
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BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
8. Malpractice: Expert Witnesses: Proof. The general rule is that expert
testimony is required to identify the applicable standard of care in pro-
fessional negligence cases.
9. Malpractice: Liability: Fraud. Absent proof of fraud or some other
extraordinary facts that would override the general rule, professionals
are not liable in negligence to third parties with whom they are not in
privity of contract.
10. Negligence. Whether a legal duty exists for actionable negligence is a
question of law dependent on the facts in a particular case.
Appeal from the District Court for Douglas County: Leigh
A nn R etelsdorf, Judge. Affirmed.
James R. Welsh and Christopher Welsh, of Welsh & Welsh,
P.C., L.L.O., for appellants.
Albert M. Engles and Brock S.J. Hubert, of Engles, Ketcham,
Olson & Keith, P.C., and, on brief, James C. Boesen for
appellee.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
Stacy, and K elch, JJ.
Wright, J.
NATURE OF CASE
The appellants, Lawrence M. Bixenmann and Norma J.
Bixenmann, brought a negligence action against Dickinson
Land Surveyors, Inc. (Dickinson). Lawrence tripped and fell
on a stake that the owner of Dickinson, a licensed surveyor,
had placed on the Bixenmanns’ property while performing a
land survey. The district court for Douglas County dismissed
the Bixenmanns’ complaint with prejudice and granted sum-
mary judgment in favor of Dickinson. The court determined
that surveyors are professionals and that the Bixenmanns were
required to present expert testimony as to the standard of care
required of surveyors in order to rebut the evidence presented
by Dickinson. The court further concluded that the alleged
negligence was not within the comprehension of laypersons
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
and that the “common knowledge” exception to the require-
ment of expert testimony did not apply.
BACKGROUND
The accident at issue in this case occurred on property
which, at the time, was owned by the Bixenmanns, in Keith
County, Nebraska. The property contained a large building
which the Bixenmanns used for storage. During the summer of
2010, the Bixenmanns entered negotiations to sell the property
to a third party. As a precondition of sale, the prospective buy-
ers requested that a survey be conducted to identify the bound-
aries of the property. The Bixenmanns agreed to the survey so
long as the prospective buyers paid for it.
In June 2010, the prospective buyers hired Dickinson to
complete a basic boundary survey of the property. The owner
of Dickinson located the boundaries and drove lengths of rebar
flush into the ground. He then marked the four corners of the
property with wooden stakes tied with ribbon, which were
securely driven into the ground. The stakes extended approxi-
mately 12 inches above ground and were surrounded by 1 to 2
inches of grass but were visible, in plain sight. Lawrence was
present during the surveying and witnessed Dickinson doing a
portion of the survey.
On June 22, 2010, the Bixenmanns visited the property
to retrieve two lawnmowers that were being stored in the
building. They loaded the lawnmowers and left to complete
yardwork at a different location. They returned later that eve-
ning to place the lawnmowers back into the storage building.
Lawrence was in the process of unloading one of the lawn-
mowers from a trailer when he tripped on one of the survey
stakes and fell, causing serious injuries to his left hip. The
stake was located near the driveway that accessed the stor-
age building.
The Bixenmanns brought an action against Dickinson for
negligence and loss of consortium. Dickinson moved for sum-
mary judgment, which the district court granted. The district
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
court determined that Dickinson was a professional, noting
that surveyors are licensed by the state and that their work is
overseen by state agencies and a regulatory board. Given that
Dickinson was a professional, the court found that any failure
to exercise reasonable care must be proved by expert testi-
mony. The owner of Dickinson submitted an affidavit stating
that he is a licensed professional land surveyor in the State
of Nebraska.
The owner of Dickinson averred that the purpose of mark-
ing and staking the boundaries was to clearly identify the
boundaries for the benefit of the party commissioning the
survey. It is his practice to leave markers and stakes on the
property in order to clearly identify the boundaries for the
customer. This practice is standard in the surveying industry
and generally accepted in the State of Nebraska. Removing
the boundary markers or stakes at the completion of the survey
would defeat the purpose of surveying the property. The owner
of Dickinson stated that he was familiar with the standard of
care in the surveying industry in the State of Nebraska and
that he complied with the applicable standard in completing
the survey in this matter. Because the Bixenmanns failed to
present expert testimony to rebut the owner’s affidavit, the
district court found that they could not prevail as a matter
of law.
[1,2] 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 recogni-
tion of the alleged negligence may be presumed to be within
the comprehension of laypersons.1 However, this common
knowledge exception is limited to cases of extreme and obvi-
ous misconduct.2 The district court determined that the excep-
tion did not apply in this case, due to the specialized nature
1
Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008).
2
Id.
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
of the surveying work and because Dickinson’s conduct was
not extreme or obvious. The Bixenmanns appeal.
ASSIGNMENTS OF ERROR
The Bixenmanns assign that the district court erred in (1)
finding that the owner of Dickinson was a professional, (2)
holding that the Bixenmanns were required to present expert
testimony as to the standard of care of a surveyor to rebut
the owner’s affidavit, (3) finding that the alleged negligence
was not within the comprehension of laypersons so that the
“common knowledge” exception could not be applied, and (4)
entering summary judgment in favor of Dickinson.
STANDARD OF REVIEW
[3,4] An appellate court will affirm a lower court’s grant
of summary judgment if the pleadings and admitted evidence
show that there is no genuine issue as to any material facts or
as to the ultimate inferences that may be drawn from those
facts and that the moving party is entitled to judgment as a
matter of law.3 In reviewing a summary judgment, an appel-
late court views the evidence in the light most favorable to the
party against whom the judgment was granted and gives that
party the benefit of all reasonable inferences deducible from
the evidence.4
ANALYSIS
[5] This case initially presents a question of law which we
have not previously decided: whether surveyors are profes-
sionals 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.5
3
Sulu v. Magana, 293 Neb. 148, 879 N.W.2d 674 (2016).
4
Id.
5
See Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53
(2013).
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Nebraska Supreme Court A dvance Sheets
294 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
We have defined a “profession” as
“‘a calling requiring specialized knowledge and often
long and intensive preparation including instruction in
skills and methods as well as in the scientific, historical,
or scholarly principles underlying such skills and meth-
ods, maintaining by force of organization or concerted
opinion high standards of achievement and conduct, and
committing its members to continued study and to a kind
of work which has for its prime purpose the rendering of
a public service.’”6
[6] Additionally, we have held that the requirement of a
license to practice one’s occupation, although not disposi-
tive, “strongly indicates that an occupation is a profession.”7
However, the requirement of a license alone does not make
an occupation a profession, as the preparation and train-
ing required to procure that license are also important fac-
tors.8 Although we have held that a college degree indi-
cates such preparation and training,9 a college degree itself is
not required.10
In Churchill v. Columbus Comm. Hosp.,11 we determined
that physical therapists are professionals, based largely on the
requirements of the Physical Therapy Practice Act,12 which
requires that physical therapists be licensed and sets forth
the requirements for licensure. Under that act, obtaining a
license requires completing an approved educational program
and an examination. We held that these requirements indicate
6
Id. at 765-66, 830 N.W.2d at 58, quoting Tylle v. Zoucha, 226 Neb. 476,
412 N.W.2d 438 (1987).
7
Jorgensen v. State Nat. Bank & Trust, 255 Neb. 241, 246, 583 N.W.2d 331,
335 (1998).
8
See Parks v. Merrill, Lynch, 268 Neb. 499, 684 N.W.2d 543 (2004).
9
See Jorgensen v. State Nat. Bank & Trust, supra note 7.
10
See Cooper v. Paap, 10 Neb. Ct. App. 243, 634 N.W.2d 266 (2001).
11
Churchill v. Columbus Comm. Hosp., supra note 5.
12
Neb. Rev. Stat. § 38-2901 et seq. (Reissue 2008).
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Nebraska Supreme Court A dvance Sheets
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BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
that physical therapists complete the “‘long and intensive
program of preparation’” that is required of professionals.13
Additionally, we noted that physical therapists render a public
service and are subject to both mandatory continuing educa-
tion requirements and professional discipline for ethical viola-
tions and failure to follow professional practice.
The Nebraska Court of Appeals similarly concluded in
Cooper v. Paap14 that abstractors were professionals, based
on the requirements of the Abstracters Act.15 It reasoned that
abstractors must be licensed, which requires that they pass a
written examination and prove they have 1 year of verified
land title-related experience. Once licensed, abstractors are
subject to oversight and discipline by a board of examiners and
must earn board-approved professional development credits.
The court noted that although their education is not as long as
that in some of the other professions, abstractors overwhelm-
ingly satisfy the other factors used to judge professionals in
that they have specialized knowledge requiring a license and
provide a service to the public upon which the public relies, in
addition to the other factors listed above.
On the other hand, in Jorgensen v. State Nat. Bank &
Trust,16 we determined that so-called retirement planners were
not professionals because they did not have specialized knowl-
edge requiring long and intensive preparation, did not hold
licenses, did not regularly supplement their educations, and
were not subject to an ethical code enforced by a discipli­
nary system.
Here, the evidence presented at the summary judgment
hearing shows that the owner of Dickinson was a licensed sur-
veyor in the State of Nebraska. In order to become registered
13
Churchill v. Columbus Comm. Hosp., supra note 5, 285 Neb. at 766, 830
N.W.2d at 58.
14
Cooper v. Paap, supra note 10.
15
Neb. Rev. Stat. § 76-535 et seq. (Reissue 2009).
16
Jorgensen v. State Nat. Bank & Trust, supra note 7.
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Nebraska Supreme Court A dvance Sheets
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BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
as a surveyor in this state, one must meet the requirements of
the Land Surveyors Regulation Act,17 which at the time of the
incident in question provided in part:
No person shall be eligible for registration unless:
(1) He or she has successfully passed an examination,
designed to determine his or her proficiency and quali-
fication to engage in the practice of land surveying. No
applicant shall be entitled to take such examination until
he or she shows the necessary practical experience in
land surveying work; and
(2) He or she has not less than six years of surveying
experience of which five years must be [certain survey-
ing activities defined in the Land Surveyors Regulation
Act]. Three of such five years must have been in a
responsible position as a subordinate to a licensed land
surveyor, and for the purpose of this section, respon-
sible position shall mean a position that requires initia-
tive, skill, and independent judgment; this term excludes
chainman, rodman, instrument person, ordinary drafter,
and others doing routine work, or has graduated, after a
course of not less than four years in surveying, engineer-
ing, or other approved curriculum, with proportionate
credit for lesser time, from a school or college approved
by the examining board as of satisfactory standing,
and an additional two years of practice in a respon-
sible position.18
Once registered, surveyors continue to be required to com-
plete 30 hours of “professional development” every 2 years.19
In addition, surveyors are now subject to a code of practice
established by the board to “govern their professional conduct”
17
See Neb. Rev. Stat. § 81-8,108 et seq. (Reissue 2014 & Supp. 2015).
18
§ 81-8,117 (Reissue 2003).
19
§ 81-8,119.01(1) (Reissue 2014).
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Nebraska Supreme Court A dvance Sheets
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BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
and continue to be subject to discipline, including suspension
or revocation of registration, for negligence, incompetency, or
misconduct in the performance of their duties.20
[7] 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 con-
tinued 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 profes-
sional negligence. Because the evidence shows that the owner
of Dickinson was a licensed or registered surveyor, we con-
clude that he is a professional.
[8] Having determined that he is a professional, we now
turn to the second assignment of error regarding whether the
Bixenmanns were required to present expert testimony as to
the standard of care applicable to surveyors. The general rule
is that expert testimony is required to identify the applicable
standard of care in professional negligence cases.21
The Bixenmanns argue that expert testimony was not
required in this case because the owner of Dickinson’s act
of placing the survey stakes in a manner in which they were
not clearly visible by persons entering the property was not
professional negligence, but, rather, was ordinary negligence.
The Bixenmanns also assert that the common knowledge
exception to the requirement of expert testimony applies in
this case. 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 the recognition of the alleged
20
§ 81-8,111. Accord § 81-8,123 (Reissue 2014).
21
See, Thone v. Regional West Med. Ctr., supra note 1; Medley v. Davis, 247
Neb. 611, 529 N.W.2d 58 (1995); Overland Constructors v. Millard School
Dist., 220 Neb. 220, 369 N.W.2d 69 (1985).
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BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 294 Neb. 407
negligence may be presumed to be within the comprehension
of laypersons.22
[9,10] We need not decide these questions, because we hold
that a surveyor’s duty of reasonable care is to his or her client
and generally does not extend to third parties absent fraud or
other facts establishing a duty to them.23 Whether a legal duty
exists for actionable negligence is a question of law dependent
on the facts in a particular case.24
Although the accident at issue occurred on the land owned
by the Bixenmanns, Dickinson was hired to conduct the sur-
vey by the prospective buyers, not by the Bixenmanns. In their
brief, the Bixenmanns state they had no contractual relation-
ship with Dickinson. Thus, there was no privity of contract
claimed between the Bixenmanns and Dickinson and there
were no facts establishing a duty to the Bixenmanns. The
record contains no evidence of fraud or facts establishing a
duty of Dickinson to the Bixenmanns. Accordingly, albeit for
a different reason, we find that the district court did not err in
granting summary judgment in favor of Dickinson.
CONCLUSION
For the reasons set forth above, we affirm the judgment of
the district court.
A ffirmed.
22
Thone v. Regional West Med. Ctr., supra note 1.
23
See, Perez v. Stern, 279 Neb. 187, 777 N.W.2d 545 (2010); Swanson v.
Ptak, 268 Neb. 265, 682 N.W.2d 225 (2004); Citizens Nat. Bank of Wisner
v. Kennedy & Coe, 232 Neb. 477, 441 N.W.2d 180 (1989).
24
Swanson v. Ptak, supra note 23.