LAWRENCE M. BIXENMANN and NORMA J. BLXENMANN, appellants,
DICKINSON LAND SURVEYORS, Inc., appellee.
from the District Court for Douglas County: Leigh Ann
Retelsdorf, Judge. Supplemental opinion: Former opinion
modified. Motion for rehearing overruled.
R. Welsh and Christopher Welsh, of Welsh & Welsh. P.C.,
L.L.O., for appellants.
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.
No. S-15-695 is before this court on the appellants'
motion for rehearing concerning our opinion in Bixenmann
v. Dickinson Land Surveyors We overrule the motion, but
we modify the original opinion as follows:
Neb. 41] We withdraw syllabus points 9 and 10. In the section
of the opinion designated "ANALYSIS,
" we withdraw the last two paragraphs and
substitute the following:
To address the Bixenmanns' contention that the allegedly
negligent act involved ordinary negligence rather than
professional negligence, we recall basic principles of law
regarding professional acts or services. A professional act
or service is one arising out of a vocation, calling,
occupation, or employment involving specialized knowledge,
labor, or skill, and the labor or skill involved is
predominantly mental or intellectual, rather than physical or
manual. See Marx v. Hartford Ace. & Ind. Co.,
183 Neb. 12, 157 N.W.2d 870 (1968). In determining whether a
particular act or service is professional in nature, the
court must look to the nature of the act or service itself
and the circumstances under which it was performed.
Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830
N.W.2d 53 (2013).
Two cases from this court provide guidance as to whether an
employee was engaged in professional services. In Marx v.
Hartford Ace. & Ind. Co., supra, a physician's
employee poured benzine instead of water into a sterilization
container, resulting in a fire. We concluded that the act was
not a professional service covered by language of an
insurance policy, because the boiling of water for
sterilization purposes was not an act requiring any
professional knowledge or training. See id. We
stated that "the negligent act performed here required
no special training or professional skill and in no sense
constituted the 'rendering or failing to render
professional services.'" Id. at 14, 157
N.W.2d at 872. On the other hand, in Swassing v.
Baum, 195 Neb. 651, 655, 240 N.W.2d 24, 27 (1976), a
blood-typing test incorrectly reported a plaintiff's
blood type and we determined that the blood test [295 Neb.
42] was a professional service "because the performance
of the blood test was an essential and integral part of the
rendition of professional services by [the physician] to [the
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. See Ambrose v. Saint Joseph's Hosp. of
Atlanta, 325 Ga.App. 557, 754 S.E.2d 135 (2014).
'"A professional negligence claim calls into
question the conduct of the professional in his area of
expertise. Administrative, clerical, or routine acts
demanding no special expertise fall in the realm of simple
negligence.'" Id. at 559, 754 S.E.2d at
137. If the allegations of the complaint involve the exercise
of professional skill and judgment within the
professional's area of expertise and go to the propriety
of professional decisions rather than to the efficacy of the
professional's conduct in carrying out decisions
previously made, the claim sounds in professional negligence
rather than ordinary negligence. See Hamilton-King v.
HNTB Georgia, Inc., 311 Ga.App. 202, 715 S.E.2d476
Here, the act of placing the survey stakes in the ground as
part of the performance of surveying work qualifies as a
professional act or service. Although one could argue that
the act of driving a stake into the ground was purely a
manual skill and was not dependent on professional knowledge
or skill, the setting of the stakes was an integral part of
the professional service supplied by Dickinson. How high to
set the stakes, how to mark the stakes, and how long to leave
the stakes in the ground are matters of professional
judgment. In order to know whether Dickinson departed from
the standard of care under the circumstances, the finder of
fact would need to know what an ordinarily prudent land
surveyor would do under similar circumstances. We conclude
that the act [295 Neb. 43] complained of qualified as a
professional act and required expert testimony to establish
the standard of care.
In performing the professional services at issue, the owner
of Dickinson had one standard of care. He did not owe one
standard of care to his clients and a different standard of
care to everyone else. 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." Flowers v. Torrance Mem. Hosp.
Med. Ctr, 8 Cal.4th 992, 1000, 884 P.2d 142, 146, 35
Cal.Rptr.2d 685, 689 (1994) (emphasis in original). And
because he was operating under the standard of care of a
professional land surveyor, expert testimony as to that
standard of care was needed.
We reject the Bixenmanns' argument that the common
knowledge exception applies. As noted, the common knowledge
exception is limited to cases of extreme and obvious
misconduct. See Thone v. Regional West Med. Ctr, 275
Neb. 238, 745 N.W.2d 898 (2008). This is not such a case. To
determine whether the owner of Dickinson acted negligently, a
jury would need to know what a surveyor under similar
circumstances would have done and why the actions of the
owner of Dickinson were improper. This information is not
within the comprehension of laypersons and would require
expert testimony. We agree with the district court that the
common knowledge exception to the requirement of expert
testimony does not apply.
The remainder of the opinion shall remain ...