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Bixenmann v. Dickinson Land Surveyors, Inc.

Supreme Court of Nebraska

August 5, 2016

Lawrence M. Bixenmann and Norma J. blxenmann, appellants,
Dickinson Land Surveyors, Inc., appellee.

         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 profession for professional negligence purposes.

         7. __:__. Registered surveyors are professionals for purposes of professional negligence.

         [294 Neb. 408] 8. Malpractice: Expert Witnesses: Proof. The general rule is that expert testimony is required to identify the applicable standard of care in professional 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 Ann Retelsdorf, Judge.

          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, PC, and, on brief, James C. Boesen for appellee.

          Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel, Stacy, and Kelch, JJ.

          Wright, J.


         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 summary 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 [294 Neb. 409] and that the "common knowledge" exception to the requirement of expert testimony did not apply.


         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 buyers requested that a survey be conducted to identify the boundaries 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 approximately 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 evening 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 storage building.

         The Bixenmanns brought an action against Dickinson for negligence and loss of consortium. Dickinson moved for summary judgment, which the district court granted. The district [294 Neb. 410] 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 testimony. 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 marking 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 ...

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