“The 2Point Way”—Two Excuses that DON'T Help in a Negligence Dispute.

The growing complexity and frequency of property rights disputes in the court system increases the associated probability of negligence claims against land use professionals. These suits—whether justified or spurious—highlight several defenses that ultimately fail, leaving the professional in an unenviable position.

While the following examples relate specifically to the surveying profession, standards of professionalism—as determined by the courts—do not vary significantly between disciplines. Specific fields of expertise are judged on those procedures that fall within the scope of their licensure. Relevant criteria are derived in part from formal standards of practice and from consensus opinions associated with the profession under consideration. The underlying metrics applied to charges of professional negligence are relatively consistent across the United States.

With this background in mind, consider the inadvisability of the following defenses:

“Everybody is doing it.”

Many jurisdictions have documented widespread fraudulent practices relating to land surveying and the associated property titles. An early Texas example highlights both the ubiquity of protracted surveys in that state circa 1890, and their deleterious effects on property titles: “Under this law, at an early day, the practice became so common among surveyors to disregard its provisions, by making out field notes in their offices from data obtained otherwise than by work done upon the ground, that the courts in a great number of cases have felt constrained to hold that where the question was raised by subsequent locators, or third parties adversely interested, such acts on the part of the surveyor would constitute a valid appropriation of the land as against such claims.” Bacon v. State: 2 Tex. Civ. App. 692 (1892)

Questions often were raised as to the validity of titles associated with so-called ‘office surveys.’ Since the ‘original footsteps’ described in these ‘field notes’ never actually occurred, following them at a later date became an exercise in educated guesswork. As a result of this widespread fraudulent behavior, the Texas Legislature was compelled to step in and establish new and more rigid of standards to rectify the problem.

More recent rulings illustrate that widespread substandard practice does not become acceptable professional behavior simply because it is endemic. In  Voelz v. Board of Engineering: 586 P.2d 807 (1978), the Oregon Board of Examiners—and later, the court—dealt firmly with a land surveyor who felt that local practices superseded state-mandated standards for the profession: “Petitioner argues that many of the practices relied upon by the Board as demonstrating gross negligence are common practice in the field. Although petitioner has presented surveys by other surveyors which appear to have omissions similar to his own, it is not at all clear that the frequency of the omissions is similar to his own. The Board in several instances noted that a single omission would not constitute gross negligence, but the number found in petitioner’s work impelled them to the conclusion of gross negligence…”

This land surveyor was charged with 24 violations—further evidence of a broad pattern of substandard behavior. Many could be traced back to his reliance on reference works of dubious quality. Finally, the surveyor remained committed to his personal standards despite clear evidence that he had violated Standards of Practice established by the State Board.

“I followed the Minimum Standards”

Following minimum ‘Standards of Practice’ will not always shield the practitioner against a finding of Negligence or Gross Negligence. Work that exceeds minimum requirements is more likely to result in a favorable outcome.  By contrast, an erroneous conclusion reached after fulfilling the bare minimum standard does not reflect well on any practitioner.

A Virginia land surveyor learned this lesson the hard way when the court ruled that he had failed in his professional duty in Romeo v. Glasser: 37 Va. Cir. 594 (1994).  The background for this dispute is summarized as follows:

A subdivision plat for Brandermill Development was recorded showing the subject lot free of the disputed easement. Subsequent to the recording of the plat—but prior to purchase of the subject lot by Paul and Nancy Romeo—Virginia Electric & Power Company (VEPCO) purchased the easement through the subdivision via recorded deed.

At the time of the Romeo purchase of the subject lot, the survey firm completed a boundary survey of the lot and failed to indicate the existing VEPCO easement. An update of this lot survey two years later was subject to the same omission. As a direct result of these circumstances, Romeo was later required to pay over 11,000 dollars to re-locate power lines.

In his defense, the surveyor claimed that he had no duty to find or locate the easement because Virginia Minimum Standards and Procedures for Boundary Surveying limit the research required of the surveyor when dealing with easements or servitudes. Despite this argument, the court concluded that the surveyor was liable because he had failed in his duty to discover the easement.

Failure to Fulfill Minimum Standards

While following minimum standards may not protect the professional, failure to follow them is generally considered significant evidence of negligence, as seen in the Tennessee decision Whitelaw v. Brooks: 138 S.W.3d 890 (2003).

In this instance, the surveyor performed a boundary and subdivision survey based on information drawn from a GIS database rather than basing his work on recorded deeds and plats as required by Tennessee law. The court notes that the surveyor: “…in derogation of the rules promulgated by the Tennessee State Board of Examiners for Land Surveyors, failed to create his survey using the latest recorded deed to the property and instead, utilized a tax map provided by the Tax Assessor’s office.”  This resulted in an encroachment by the surveyors’ subdivision plat over lands of the adjoining property owner.

In Colonial Pipeline Co. v. Brown: 258 Ga. 115 (1988), a similar lack of research ultimately resulted in the destruction of a bulldozer and damage to the Colonial Pipeline. This multi-state pipeline corridor is generally well documented and is marked on the ground. The relevant easement was described in a recorded deed; other professionals testified that determining its location would have been a relatively straightforward process. Despite constructive notice provided by the recorded easement deeds, the surveyor failed to discover the servitude or show its location on his grading plan. In ruling against the surveyor, the court concluded that he was in violation of the minimum research required under the Rules of State Board of Registration for Professional Engineers and Land Surveyors.

The observant reader will note that the previous three examples all involve easements—more specifically, deficient research resulting in a failure to depict important information. These disputes reflect a broad tendency within the surveying profession to minimize the surveyor’s role in determining easement locations and characteristics. An easement is an incorporeal right, but it is also an interest in real property and, as such, is limited by boundaries that are susceptible to location by Land Surveyors.

Honesty and Integrity are Still Critical

In Hyland v. Ponzio: 159 N.J. Super. 233 (1978), a New Jersey surveyor had his license revoked after he was convicted on sixteen counts—including charges of conspiracy, bribery and extortion—all while serving as Commissioner for Public Works for Atlantic City. In contesting the revocation of his license, the surveyor claimed that, while state standards require good moral character be demonstrated by the potential licensee, there was no written requirement of continued good citizenship and responsible behavior after licensure.

The New Jersey court notes that accurate surveys are a cornerstone for property titles and emphasizes the importance of ethical behavior of practitioners of the surveying profession. Property surveys are routinely relied upon by Attorneys, Real Estate Agents, Architects, Engineers, and the banking industry.  Because surveying involves specialized skill and knowledge, members of the general public are generally unable to distinguish between competence and incompetence.

The court rejects the disingenuous argument of the surveyor: “…it would appear to be incongruous that one must have a good character and reputation in order to qualify for a license, but need not continue to enjoy the same character and reputation once the license is issued.”

As in other professions, the courts make no assumption that all Land Surveyors are equal in all respects. General licensure does not guarantee expertise in all aspects of any profession, nor does it create a level playing field between those who choose to excel and others who see a license as the end of their training and development rather than as the beginning of a new stage in the learning process.

In the examples above, the defenses attempted are clearly last-ditch efforts to save face and avoid liability. Ultimately, the best defense against a charge of negligence is consistent performance and quality work backed by adequate knowledge and training.

Photo Credit: Pam Wolfe