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8/19/17

Kristopher M. Kline, P.L.S., G.S.I.


What is a Professional?
kristopherkline1@gmail.com
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Kristopher M. Kline, 2Point, Inc.


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} The word "profession" is defined as "[a] vocation or


} The essence of a professional service is that it involves
occupation requiring special, usually advanced,
"specialized knowledge, labor or skills and the labor or
education, knowledge, and skill…" Black's Law Dictionary
skill is predominately mental or intellectual, rather than
} "The essence of a professional service is that it involves physical or manual."
'specialized knowledge, labor or skills and the labor or
} Whether such services be medical, legal or otherwise,
skill is predominately mental or intellectual, rather than
professional services are not to be secured by public
physical or manual
bidding because there is something inherent in the
} see also N.J.S.A. 2A:44A-2 (defining professional services process which would nullify or detract from the
as "performed by a licensed architect, engineer or land professional quality of the services being sought.
surveyor …who is not a salaried employee of the
contractor")

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} The essence of a professional service is that it involves


'specialized knowledge, labor or skills and the labor or
skill is predominately mental or intellectual, rather than
physical or manual.'“
} The Legislature did not intend towing contractors to be
exempt from public bidding. Although a towing Violations of
contractor must possess special skills to safely perform
its services, we find that these skills are not "professional Standards of Practice
skills" requiring advanced education or special mental or
intellectual skills. The skills needed to provide towing
and storage services are typically acquired in the course
of an apprenticeship or training, rather than a "prolonged
formal course of specialized instruction."
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} (b) The application of a signature and seal to } (b) Prior to conducting a survey, the licensed land
documents relating to the practice of professional surveyor shall obtain all pertinent information and
engineering and/or land surveying shall indicate that documentation in the client's possession relative to
the licensee has provided regular and effective the property to be surveyed.
supervision to those individuals performing services } Such information may include, but not be limited to,
which directly and materially affect the quality and earlier surveys, record deeds, title reports, original
competence of the engineering or land surveying work tract maps, public records and State, county or
rendered. municipal maps.
} When such information provided is not sufficient to
meet the owner's needs, the surveyor shall make all
reasonable efforts to obtain all information and
documentation needed to render an accurate survey.
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} This is to advise that I/we have been made aware of } (k) Tax assessment maps must be prepared by a
my/our right to have corner markers set as part of licensed land surveyor, who is obligated to prepare such
} a survey to be performed on property which is being maps in full compliance with the legal requirements
purchased by me/us. That right is hereby waived pertaining to such maps.
} and you are directed to perform the land survey } (1) Failure to comply with the provisions of this
without the setting of comer markers as provided by subchapter and with applicable State laws and local
} the regulation of the New Jersey Board of Professional } ordinances may subject the licensed land surveyor to
Engineers and Land Surveyors. disciplinary action in accordance with N.J.S.A. 45:8-38.

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} 5) Any professional engineer, professional land surveyor } a) Misconduct in the practice of professional engineering
or professional business entity that uses an or professional land surveying shall include, without
advertisement … limitation:
} …containing false or misleading information, including } 1) …accepting any remuneration other than his or her
stated recompense for services rendered.
claims of superiority that cannot be substantiated, …
} 2) Disregarding the safety, health and welfare of the
} …or that fails to meet the requirements set forth in this public in the performance of his or her professional
subsection shall be deemed to be engaged in duties: preparing or signing and sealing plans, surveys
professional misconduct. or specifications which are not of a safe design and/or
not in conformity with accepted standards.
} If the client or employer insists on such conduct, the
licensee shall notify the proper authorities and withdraw
from further service on the project.
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8/19/17

} 6) Failure to comply with Federal, state or local laws,


rules or regulations relating to the practice of the
profession.
} 9) Failure to keep a client reasonably informed about the
status of a matter and promptly comply with reasonable
requests for information. Standard of Care…
} 10) Failure to explain a matter to the extent reasonably
necessary to permit the client to make informed
…and Mistakes
decisions.

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} The court reformed a deed establishing the disputed } It is generally recognized that under certain
boundary line and dismissed the appellant's third-party circumstances a surveyor can be held liable for failure
complaint against the prior owners of her property and to exercise due skill and care in making a survey…
against a surveyor of the property. The appellant had } However, many circumstances affect the potential
claimed that the prior owners were obligated to her liability of the surveyor. For instance, the connection
under a covenant of general warranty and that the between the surveyor and the injured party has been
surveyor had negligently surveyed the line in dispute. recognized to have some bearing on the case.
} It appears that xxxxxxxxxxx did not lay the boundary } Whether the surveyor's error proximately caused the
line out in the manner in which XXXXXXXX's mother and injury is relevant…
aunt had intended it to run and that as a consequence a } Likewise, whether the surveyor has deviated from the
garage, which was supposed to be on the aunt's lot after standard of care applied to his profession has some
partition, was actually on XXXXXXXX's mother's lot. bearing on his liability.

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} In examining the record presently before the Court, this } Koestner's first survey, dated May 5, 1953, specified the
Court believes that the record was not sufficiently building site and indicated that a building constructed on
developed on the facts relating to xxxxxxxxxxx’s survey
this site would be approximately 75 feet from the
to determine whether it is potentially liable to the
northern boundary of plaintiff's property.
appellant and that, at very least, inquiry concerning the
facts is desirable to clarify the application of the law. } He therefore prepared a second survey dated February 4,
} Accordingly, the Court concludes that the granting of
1954 which indicated that there existed only 55 feet
summary judgment on the third-party claim against the between the building and the northern property line.
surveyor was inappropriate and that the relationship } In August 1972, … informed plaintiff that only 35 feet
between the appellant and the surveyor and the separated plaintiff's building from their common
surveyor's survey of the boundary line in dispute should property line and told plaintiff to keep off his land.
be developed further. } Russo proved to be correct. The 1954 Koestner survey
was inaccurate.
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} No one who testified knew precisely why Koestner, Sr. } Mr. J. A. Simpson, a land surveyor for 50 years and
had made the error but everyone, including Koestner, County Surveyor of Tom Green County for the last 27
Jr., acknowledged that an error had been made. years testified that he had done considerable surveying
} Kenneth Job, a licensed engineer and land surveyor work in the Minter Addition, Miles Addition Acre Lots
called as an expert witness by plaintiff, stated and Robertson Subdivision of Acre Lot 6.
unequivocally that if Koestner had adhered to the } We quote the following from the testimony of Mr.
standard generally followed in the surveying Simpson not only to show that the west line of the Acre
profession, the error would not have occurred. Lots was located but to show that Minter Street can be
definitely, accurately and easily located from the
judgment:

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"I have seen the original plat of the Robertson "I have surveyed that property on the ground.
subdivision. The first time I saw it was about October In 1926 I made a plat of the Robertson subdivision
1928. * * * That strip you show me on the plat indicates showing a street between that and Minter Addition and
a street, the way interpreted by me; I left it there as a Acre Lot 8 of Miles Addition.
street on both sides in the Minter Addition and Plaintiff's Exhibit No. 5 is a plat I made myself; I do not
Robertson subdivision. think it is to scale because I just placed it over the map
That black line would be the actual east line of the on record and traced it.
Robertson subdivision; the field notes of Acre Lot 6, At that time I located the Robertson subdivision on the
which is a Robertson subdivision shows it to be a ground, including the east line of that subdivision,
subdivision of (five) Acre Lot 6, Miles Addition, and the which would be the east line of Block 21.
field notes on that are practically the same as shown on
this map here.
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I also located the west line of Minter and of Acre Lot 8, "I have my field book which contains a plat of the
Miles Addition; there is a strip in there between the two Robertson subdivision, work I did for Mr. Hunter in
different additions. It is a street on the ground and I 1945.
made the plat. * * * This field book is made up directly on the basis of the
"Thereafter I made a plat of the Robertson subdivision original deeds. The plat in my field book is the same as
showing the east line of the subdivision, I believe in the plat introduced in evidence.
September 1952. My records show that I made five surveys in that
Plaintiff's Exhibit No. 6 is that plat which I made; the plat Robertson subdivision, beginning back in 1928; I
accurately shows the position of the east portion of the probably have made more than that. Every time I have
addition as I found it on the ground, exactly like I staked been on the ground and surveyed the property in and
it off. about Minter Street I have always found a street there

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8/19/17

} that the parties employed a surveyor FFFFFFF to survey } that all the parties relied on this erroneous and incorrect
and divide the land into two tracts of equal acreage; information, by mutual mistake accepted the field notes
} that relying on the field notes of the surveyor the parties as equally dividing the land as to acreage, and executed
executed warranty deeds to each other conveying to the their deeds to each other for 120 acres each, based on
other what was thought to be one-half of the H. A. J. and such erroneous information;
Mary Snellings land; } that plaintiffs learned by a later survey that the total
} that surveyor FFFFFFF erroneously computed the acreage acreage is only 229.24 acres, and that the part deeded
of the land to be 240 acres, and erroneously computed his to A.O. Snellings was only 94.08 acres, while the part
division of the same, which was conveyed by the parties to deeded by A. O. Snellings to defendants contained
each other, to be two tracts containing 120 acres each; 135.16 acres. ;

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} Where the language purportedly granting an easement is


ambiguous or in dispute, "[t]he primary rule of
construction is that the …

Sufficient Knowledge of } …intent of the conveyor is normally determined by the


language of the conveyance read as an entirety and in the

Relevant Law light of the surrounding circumstances."

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} No principle is better settled, said Justice Elmer, or


more important to be faithfully adhered to by the
courts called upon to enforce written statutes, than
that, in the absence of ambiguity in the language
used, … Adequate Research
} …no exposition shall be made which is in
opposition to the express words; or, as the maxim
is sometimes expressed, …
} …it is not allowed to interpret what has no need of
interpretation.

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} Accordingly, in early 1973 Wulster hired Ostertag and } Also, it is well to note that while these surveys were
McDougall, another engineering and surveying firm, to not certified or performed by Harrison, his liability
prepare the necessary survey. rests on the settled principle of partnership law that all
} As a result of this survey it was discovered that the 1963 partners are jointly and severally liable for the torts
survey prepared by Conklin Associates had erroneously committed by a member of the partnership in the
located the New York State-New Jersey boundary line
course of partnership business.
which served as the dividing line of the Wells and Wulster
properties. } Defendants' argument that the individual lot surveys
} In addition to the $ 30,000 paid to Wulster there were are but restatements or a continuation of a single act
additional expenses of $ 3,214.59 incurred by and hence are not now actionable is not persuasive
Commonwealth in resurveying the properties, in and misperceives the realities of the error.
recording deeds in Rockland County, N.Y., and for other
related matters.
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} In 1963 the original survey was performed … in order to } Further, this court is satisfied that the evidence at trial
provide him with the subdivision map necessary to the adequately supports the charge of defendants'
development of the tract. culpability.
} When the residences were constructed and purchased, the } Expert testimony revealed that field markers, or
individual owners had surveys of their lots conducted,
monuments, delineate the state boundary at regular
defining the perimeters of their properties.
intervals.
} In all instances the state-line boundary was determined,
not by a new survey but rather by reference to the filed } Rather than locate more than one such monument, as
subdivision map containing the error. would have been the proper practice, defendants
} This court finds that these surveys were, from a statute of located one.
limitations point of view, acts separate and distinct from } As a result, the error was made.
the original 1963 survey. } This bespoke negligence.
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} In repeating the error by relying on the original mistake, } Thus, in erreonously preparing the individual lot
defendants engaged in a new, independent course of surveys, defendants exposed themselves anew to
conduct, albeit based upon an original wrongful act. the charge of negligence. The failure to ascertain
} While defendants suggest that this reliance was not the true descriptions of these border lots was
negligent, offering expert testimony to the effect that it caused by an unreasonable failure to produce an
is the usual custom and practice of a surveyor in accurate survey of the state line. Each time this was
preparing individual lot surveys to rely upon the state done negligence was involved.
line descriptions of a filed subdivision map, defendants
are estopped to assert that the reliance placed on their
own earlier negligent conduct was reasonable.

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} The judge had very properly told the jury "that the } The counsel and the surveyor, who examined the lot
plaintiff's land lay along Mrs. Hunter's tract up to Dr. prior to the making of the deed, "considered" that as
Miller's line. These are monuments controlling the the true line. In measuring the front and rear of the
course." lot, they measured from those posts.
} There can be no gore or space between the west line } The witnesses call these posts monuments, and they
of the plaintiff's lot and the east line of Mrs. Hunter's doubtless were the monuments used by them in
lot. The two lines are identical; and the question was, making the measurements; but they are not
where is the true east line of Mrs. Hunter's land? monuments called for in the deed.
} Is it on a line drawn between the two posts spoken of } The description in the deed calls for the line of the
by the witnesses? Hunter lot, and wherever that may be, there the line of
the plaintiff's lot must be also.

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} Now there is no satisfactory evidence to show that } 1. affidavits from DDDDDD, a surveyor who had
those posts were in the Hunter line. conducted extensive boundary and highway research
} It is admitted by the witnesses that no survey was in the Town of Barnard, stating that he had examined
made, and no means adopted to determine the true the Barnard Land Records and the area of the
line of the Hunter lot. disputed roads in 1985 and had uncovered (a) a
survey of the Wheat Road dated September 17, 1816
} The counsel says expressly that, as the parties were
relatives, he was not precise in fixing it. and recorded in the Barnard Land Roads and Villages
Book at Page 39 on January 1, 1817, and (b) a survey
} The surveyor says "the posts were fixed, and supposed of the Park Hill Road dated September 9, 1788 and
to be the corners of Mrs. Hunter."
recorded in the Barnard Land Roads and Villages
} But, he adds, "we did not ascertain the corners from Book at page 5;
any old deeds. I surveyed no lines; I made no map."

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} 2. affidavits from CCCCCC, a registered land surveyor in } The defendants fire a battery of frivolous challenges at the
the State of Vermont, stating that (a) in 1985, he affidavits of CCCCCC and DDDDDD. Suffice it to say that
supervised a survey of the "so-called Wheat Road's" the affidavits show that the affiants were qualified to
present centerline and the "so-called Park Hill Road's" testify as to the facts the court used the affidavits to
present centerline; and (b) in the process of conducting establish. DDDDDD, an experienced surveyor, testified as
the 1985 survey, he found (i) clear evidence of Wheat to the results of research he personally conducted.
Road's and Park Hill Road's continued existence and (ii) CCCCCC, a registered land surveyor, testified as to the
that the centerline of the current roadbeds closely results of a survey he personally supervised.
followed, for the most part, the path of the same laid } …Defects in other information contained in the affidavits
out in 1816; are irrelevant since that information was not relied on by
the court in its decision. …(where an affidavit contained
certain objectionable statements, the court struck those
statements but considered the remainder of the affidavit);

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} The surveyor stated in his affidavit that he prepared } …and opined that plaintiff's property clearly includes
his survey based on the property description the disputed parcel and plaintiff is the owner of that
contained in plaintiff's deed as well as those of her parcel.
predecessors in interest, } Finally, he stated that he had reviewed the deed by
} …certain highway appropriation, county acquisition which McChesney acquired title to her real property,
and tax maps, and other relevant agreements and and opined "with certainty" that the disputed parcel
documents. He detailed the means by which he was not included in the property description
located certain markers, monuments and lines contained in McChesney's deed.
referenced in the property description, …

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} Draper K. Sutcliffe, a civil engineer and land surveyor,


} Defendants also provided an affidavit from a surveyor testified for the Drapers in the first case that …
purporting to critique the methodology of plaintiff's } …his search of the land records and work at the site had
surveyor. enabled him to plat the location of the Stottlemyers' 10.5
} However, defendants' expert did not actually review acre tract (he found that this tract -- Parcel 2 -- actually
any of the underlying surveys or deeds, and offered contained 13.3 acres) and the location of the 61 acre
no opinion as to ownership of the disputed parcel. farm of the Drapers as it touched the common boundary
Instead, his affidavit consisted solely of a response to line of the 10.5 acre tract of the Stottlemyers.
a hypothetical question posed by defendants' } He went back to Lot No. 220 of the larger tract of which
counsel. the Drapers' land was originally a part.
} Based upon assumed facts, defendants' expert } He also found that the 8.5 acre tract of land in dispute
opined that… actually contained 8.8 acres.
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} He traced the Draper title back to the deed from Levi } Ralph H. Donnelly, civil engineer and land surveyor,
Estow to John Hornie dated October 6, 1856, recorded testified for the Stottlemyers and his plat was introduced
among the Land Records of Washington County on into evidence in the present case. Mr. Donnelly traced
February 2, 1857. the 10.5 acre Stottlemyer tract in the land records to a
} This deed was for three parcels of land, the Draper land deed dated April 23, 1853, from Jonathan Meredith and
being part of Parcel 3 which describes 615 acres. John Spear Nicholas to Hezekiah Boteler and Barton
Boteler, and duly recorded, in which the boundary in
} Mr. Sutcliffe's plat, showing the monuments, courses and
question was described, in part, as follows:
distances of the line between the 10.5 acre Stottlemyer
tract and the 8.5 acre tract in dispute, was introduced
into evidence.

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} "* * * North thirty five degrees East nineteen perches to a } It thus appears from the evidence produced by the
stone near the Antietam Creek, thence with the Stottlemyers themselves that the boundary line of Parcel 2
meanderings of said creek within four feet of the water -- the 10.5 acre tract -- which separates that land from
the sixteen following courses and distances, viz., South the land in dispute is established by deeds of record with
forty three and a half degrees East twelve perches" * * * a call to a stone,
then follow the other courses and distances * * * to } … not on the bank of Antietam Creek but four feet from
"South eighty nine and a half degrees West Twelve the bank. In addition to this artificial monument, which is
perches, then leaving said creek North eighty one still in place and located on the ground by all the
degrees West twelve perches, North seventy five degrees surveyors, the sixteen courses and distances which follow
West eight perches … the "meanderings of Antietam Creek" are all four feet from
the then bank of the creek.

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} This testimony, which is uncontradicted, establishes that } Although J. Harold Seibert, County Surveyor, who testified
the Stottlemyers never owned any land abutting Antietam in the first case, had originally been of the opinion that
Creek and that a narrow strip four feet wide was owned the Stottlemyers as owners of the 10.5 acre tract were
by someone other than the Stottlemyers as owners of the owners of the land in dispute, he testified that, upon
10.5 acre tract. further research and reflection, he had changed his mind.
} In short, the Stottlemyers were never abutting riparian } When asked about his former opinion, he stated: "Yes,
owners and hence the legal doctrines in regard to from our surveys and from observations on the ground
accretion, reliction and other doctrines of law relating to we changed our minds entirely about this."
riparian owners are not applicable so far as the owners of } He further testified in regard to the land in dispute that
the 10.5 acre tract are concerned. in his new opinion, the Stottlemyers did not own the
disputed land.

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} The final result of all the expert testimony and other } An examination of Plaintiffs' Exhibit No. 13 in the first
evidence was that there really was no ultimate dispute case which was a photostatic copy of a plat, dated March,
among the experts in regard to the location of the 1850, and bearing the legend "Part of Antietam Iron
disputed boundary both as described in the relevant Works, Containing 161 1/2 Acres," with a scale of 1'' --
deeds and as appeared on the ground, although Mr. 30 perches (495') shows a line near the then bank of
Donnelly was of the opinion that the Stottlemyers owned Antietam Creek but the line appears to be a short
the land in dispute. The stones called for in the deeds distance away from the water of the Creek, itself.
are still there and, curiously enough, after all these years, } The deeds and other evidence indicate an intention of the
there is a twin elm growing at the place of the call "to an original draftsmen to insure that the owners of the land
Elm tree," -- possibly a descendant from the original Elm on the north and east side of Antietam Creek should not
tree -- and there is a dead oak where the original call have any rights as a riparian owner
was "to a white Oak tree."
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} The Dispute: This case involves a dispute over the } The court finds that the surveys conducted by
ownership of the 14-foot right of way reserved in the XXXXXXXX, XXXXXXXXXX, and XXXXXXXX do not reflect
Sims deed. Over the years, all parties and their the intent of the grantor, as evidenced by the chains of
predecessors in interest have used the right of way at title. In the original deed from Sims to Brown, dated
issue for ingress and egress to the adjoining properties. April 30, 1860, the grantor states that the property is
} There have been multiple surveys performed in this conveyed "Reserving the right of way along Smith's line
case. Each of the surveys performed used a line within to the Williamsburg road." From this, the court finds
inches of the others to mark the western boundary of that Sims intended to convey the property with a
the property to the immediate east of that property reservation of a right of way along Smith's line, which
owned by the plaintiffs and the defendants. In other became the Old Schoolhouse Lot.
words, these surveys use a similar line to mark the
western boundary of the Old Schoolhouse Lot.

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} Although the language in the deed may have changed, } From this, the court finds that the intent of Sims in the
the intent of the original grantor, Sims, to convey the Bess deed was to convey the Bess property with an
property subject to a reserved right of way across the assignment of the use of the right of way across the
plaintiff's property and connecting the defendant's Brown property. This specific language is also used in
property to the main road is clearly reflected in the the deed from Bess to Beck, recorded on February 5,
language so chosen. 1869.
} The court finds, however, that the intent of the grantor } The confusion in the defendants' chain of title appears
was lost within the defendants' chain of title; and this is, to have arisen on March 13, 1906, when Beck conveyed
perhaps, the reason that the surveys concluding that a "tract or strip of land for a Right-of-Way" to C.W.
the defendants own the land do not echo the intent of Jordan (the "first" deed). That deed appears to indicate,
the original grantor, Sims. at first glance, that Beck owned the property outright.

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} Upon reviewing the first deed for the "tract or strip of


land for a Right-of-Way," the court finds that Beck did } "The court may properly admit expert testimony only
not intend to convey fee simple title in the strip of land from a witness it has first determined to be qualified
but instead made a conveyance of the use of a right of to testify on a particular matter."
way across the adjoining property. This is evidenced by } …"Generally, expert testimony is admissible if
the language used, i.e., "for a Right-of-Way"
} (1) the witness has a special skill or knowledge
} However, many of the deeds subsequent to the March
directly applicable to a matter in issue,
1906 deed dropped the "right-of-way" language, and
they appear to convey fee simple title to the 14-foot } (2) that skill or knowledge is not common to the
tract of land. This "third tract of land" appears in the average person, and
conveyance from Jordan to Hughes, recorded February } (3) the testimony would be helpful to the court or jury
26, 1914… in considering the issues. . . .

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} …If the boundaries could not be ascertained, the statute


} Of course, lack of formal education does not negate the created the "presumption that an existing highway was
expertise of a particular witness. It is the witness' originally laid out as a three-rod road …
knowledge of the subject matter, often gained through } …If the party opposing the presumption could show that
the centerline of travel in fact had moved from its
experience, that determines whether the witness is an original location, then the presumption would disappear,
expert. and the court would have to find the location based on
} The decision as to whether a witness is an expert, and all the evidence.
thus qualified to offer an "expert opinion" rests within } 19 V.S.A. § 32. Section 32 now reads:
} A roadway width of one and one half rods on each side
the sound discretion of the trial court and will not be of the center of the existing traveled way can be
disturbed on appeal unless the trial judge's ruling is assumed and controlled for highway purposes whenever
clearly erroneous or he has abused his discretion. the original survey was not properly recorded, or the
records preserved, or if the terminations and boundaries
cannot be determined.
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} Frohock's lot depth to its back boundary as shown


in the 1977 survey was entirely dependent upon
GGGGGGG’s assumption that Railroad Street
Extension was three rods wide.
} That assumption, in turn, was based on his
knowledge that town highways were typically three
Practicing outside your
rods wide. That these assumptions were reasonable
did not mean the surveyor was necessarily correct. Area of Expertise

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} The map had been exhibited, delineating the position } The expert witness is one whose possession of special
of the furniture of the room. knowledge renders his opinion admissible upon a
} The proof that the delineation indicated its position at state of facts within his specialty without regard to the
the time of the surveyor's observation deprived it of manner in which the facts are established and without
any value as illustrative of its position at the time of requiring that they should have come in whole or in
the homicide, and of that proof the defendant ought part under the personal observation of the witness.
not to have been deprived.

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11
8/19/17

} A failure to observe this distinction results at times in } In either of these classes of cases the proof must be
the offer of an ordinary witness to give an opinion rejected, the rule being that mere opportunity will not
calling for special knowledge merely because he has change an ordinary observer into an expert, …
had actual observation of the facts; } …and that special skill will not entitle a witness to give
} and at other times, as in the present instance, in the an expert opinion when the subject is one where the
offer to prove an opinion upon a matter of ordinary opinion of an ordinary observer is admissible or where
knowledge, arising from assumed facts, by a witness the jury is capable of forming its own conclusion from
who has not himself observed them, upon the ground facts susceptible of proof in common form.
that he is expert upon the special subject.

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} XXXXXXX, an engineer and land surveyor, who was a } When and where petitioner starting shooting at
consultant in the reconstruction of accidents, was decedent were highly contested at trial.
called as an expert witness for Seay. } We agree with the circuit court's reasoning and find
} He had conducted tests and made observations to that it did not abuse its discretion in excluding Mr.
determine sight distances from the intersection. He XXXXXXXXXXX’s testimony.
found that in daylight he could see a target placed at } Mr. XXXXXXXXXXXX is a surveyor, not a crime scene
the height of headlights on Route 220 at a distance of reconstuctionist or an expert in firearms or
1,480 feet north of a point in the crossover through ballistics. Therefore, the probative value of his
the median strip. At night he could see the glare of testimony was substantially outweighed by the
headlights on Route 220 1,700 to 1,800 feet north of
danger of confusing the issues or misleading the
the same point. jury.

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} Evidence Rule 56(2) provides: } …The facts or data in the particular case upon which
} A witness qualified pursuant to Rule 19 as an expert an expert bases an opinion or inference may be those
by knowledge, skill, experience, training or perceived by or made known to him at or before the
education… hearing.
} … may testify in the form of opinion or otherwise as to } If of a type reasonably relied upon by experts in the
matters requiring scientific, technical or other particular field in forming opinions or inferences upon
specialized knowledge … the subject, the facts or data need not be admissible
} …if such testimony will assist the trier of fact to in evidence.
understand the evidence or determine a fact in issue.

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12
8/19/17

} the Court explained that in determining admissibility } "generally three ways in which a proponent of expert
of expert testimony, the field of science … testimony or scientific results can prove the required
} …"must be at a state of the art such that an expert's reliability in terms of its general acceptance within the
testimony could be sufficiently reliable." scientific community:
} Reliability can be established by demonstrating } (1) the testimony of knowledgeable experts;
"general acceptance" of the expert's opinion or theory } (2) authoritative scientific literature;
within the scientific or professional community. } (3) persuasive judicial decisions which acknowledge
such general acceptance of expert testimony."
} We have followed that approach for determining
reliability of expert evidence in a variety of contexts.

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} At his hearing before a panel of the State Board for } Beyond that, petitioner, who has a most distinguished
Engineering and Land Surveying, petitioner, appearing academic background, …
pro se, did not deny that his surveying practices } …conceded that his surveying results, obtained
deviate from the professional standards brought out contrary to standard practices, differed from those
by respondent's evidence, which included testimony of arrived at by his colleagues. Whether his results were
land surveyors, of long standing, practicing in uniquely correct raises only a factual dispute best
petitioner's locality, but … resolved by the administrative experts …
} …argued instead that his methods were as accurate or } Thus, the record contains substantial evidence to
better than customary practices and therefore not support respondent's determination.
negligent; the Hearing Panel concluded otherwise.

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} 4) Engaging in any activity which involves him in a


conflict of interest, including without limitation:
} i) A licensee shall inform his client or employer of any
business connection, interest or circumstance which
Conflict of Interest might be deemed as influencing his judgment or the
quality of his services to the client or employer.

(Actual vs. Possible)

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13
8/19/17

} Mr. Harold G. Free, who is Vice-President of the Kennedy- } The evidence shows that the drainage plans have been
Chamberlin Development Company and also Vice- approved by the Washington Suburban Sanitary
President and Treasurer of the Kenwood Golf and Country Commission, an administrative agency which has
Club, and who is also a registered professional engineer jurisdiction over plans for storm drainage systems in
and land surveyor, testified for the plaintiffs and gave a Montgomery County.
description of the topography of the areas involved in } On cross examination, Mr. Free admitted that he was
these proceedings, and he expressed it as his opinion familiar with these plans and with the fact that they had
that the drainage construction, when completed, would been approved by this Commission.
increase the volume and velocity of the flow of water, and } He also admitted that he accepted the Sanitary
} "it is quite probable that in the rush of additional water Commission requirements "with regard to the design of
that there would be considerable change in the present storm systems."
course of the stream."
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} The witness was further questioned as to the accuracy of } Another witness for the plaintiffs, Mr. Vernon D. George,
a statement made by him at a public hearing before the a land surveyor, with ten or twelve years experience in
Montgomery County Council in June, 1955. storm drainage work, testified that …
} He admitted the correctness of the following statement: } …the installation of the proposed drainage system would
"The corporation bought a parcel of surplus land from the concentrate the water and discharge it on to the land, but
government and recognizing the problem of drainage so far as erosion is concerned "it would just be hazarding
from the start, proposes to develop it into salable lots. a guess as to what actually would happen."
} They have put a plat on record, accepting the area,
recognizing that it is a problem piece …

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} Mr. Donald Lee Chamberlin, a registered professional } Mr. Donald McCathran, a registered land surveyor, and an
engineer and land surveyor, who is president of both employee in charge of the design section of the Highway
plaintiff corporations, testified that he had appeared Engineering Division of Montgomery County, testified on
before the Montgomery County Council and objected to behalf of the defendants that …
the proposed plans, … } …he prepared the storm drainage plans in issue, that
these plans were approved by the Washington Suburban
Sanitary Commission, that the drainage system would
provide for the draining of the proposed Radnor Road all
within the watershed, and that it would not drain any area
not now being within the natural drainage boundaries.

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} The appellants' evidence consists largely of the opinions


of engineers, based on experience, which are conclusions
as to alleged future damage.
} While this type of testimony has considerable value, it
leaves too much to be desired by way of accuracy and
Negligence and the Surveyor
tends to border on speculation and surmise.
} It assumes conditions which do not exist. Damage does
not necessarily result from an increased flow of surface
water.

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} Appellants contend that appellees, as licensed real estate } Appellees' first defense is that they did not owe
agents assisting appellants in the purchase of a home, appellants a duty to verify the information contained in
owed a duty of care to appellants, which they breached by the MLS because the listing and the contract of sale both
failing to verify the accuracy of the information provided expressly disclaimed such a duty.
in the MLS. } According to appellees, the contract of sale, which did
} Appellants argue that the trial court was legally incorrect not contain any representation concerning the parcel's
in concluding that appellees did not owe this duty of care. acreage, explicitly put appellants on notice that they had
} According to appellants, the trial court based its grant of the option of hiring a land surveyor to ascertain the exact
summary judgment on an incorrect legal principle, and location, size, and boundaries of the property.
thus, the entry of judgment should be reversed.

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} "In Maryland, the prima facie elements of the tort of } (3) the defendant has knowledge that the plaintiff will
negligent misrepresentation are: probably rely on the statement, which, if erroneous, will
} '(1) the defendant, owing a duty of care to the plaintiff, cause loss or injury;
negligently asserts a false statement; } (4) the plaintiff, justifiably, takes action in reliance on the
} (2) the defendant intends that his statement will be acted statement; and
upon by the plaintiff; } (5) the plaintiff suffers damage proximately caused by
} [KK note: continued] the defendant's negligence.'"

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} Negligent misrepresentation is a form of negligence.


} In order to maintain an action in negligence, "a plaintiff
must prove the existence of four elements:
a duty owed to him,
Gross Negligence
}
} a breach of that duty,
} a causal connection between the breach and the injury,
} and damages."

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} Actionable negligence presupposes the existence of a } Although we have found no Texas case holding a
legal relationship between the parties through which surveyor liable in negligence to a third party, other
the wrongdoer owed a duty to the injured party. jurisdictions have imposed liability on surveyors, and
} The duty may be imposed by contract or, irrespective the rationale is applicable to the instant case.
of privity of contract, by law. Thus, although } First, the transaction indirectly was intended to
contractual privity assures a sufficiently close nexus benefit Larson, and the harm was reasonably
between the parties upon which fairly to predicate forseeable.
liability, it is not, as DDDDDDD argues, indispensable } The survey plat was addressed "TO ALL PARTIES
to the imposition of a legal duty of care. INTERESTED IN PREMISES SURVEYED" and bore the
following warranty:

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} Hutchinson v. Dubeau, 161 Ga.App. 65, 289 S.E.2d 4 } DDDDDDD argues that the evidence was legally or
(Ct.App.1982) (surveyor liable if knew or should have factually insufficient to support a finding of gross
known third person would use and rely on plat in a negligence. We agree.
subsequent transaction involving the property); } Gross negligence is "that entire want of care which would
} Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969) raise the belief that the act or omission complained of
(tort liability measured by scope of duty owed rather was the result of a conscious indifference to the right or
than by artificial concepts of privity); welfare of the person or persons to be affected by it."
} Tartera v. Palumbo, 224 Tenn. 262, 453 S.W.2d 780 } What lifts ordinary negligence into gross negligence is
(1970) (defendant knew survey would be used in the mental attitude of the defendant; that is what
describing property in warranty deed). justifies the penal nature of the imposition of exemplary
damages.

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16
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} Whether a party owes a duty of care is a question of } The plaintiff in a professional negligence action must
law, while breach of the duty and causation are establish the appropriate standard of care,
questions of fact. demonstrate that the defendant deviated from that
} We have not had the occasion to state the standard of standard, and prove that the deviation caused the
care owed by a land surveyor. plaintiff's damages.
} "standards for demonstrating the elements of } Courts in other jurisdictions have articulated the duty
professional negligence do not differ from profession of care of land surveyors in similar ways. For example,
to profession." in West Virginia a surveyor is held to the standard of
care that a "reasonably prudent surveyor" would have
applied with regard to the same project.

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} Both Maryland and North Carolina state that a surveyor } It is claimed that a transposition of figures created this
must "exercise that degree of care which a surveyor of litigation. Appellant Lanious K. Reighard (Reighard) sued
ordinary skill and prudence would exercise under similar appellees Leo Clark Downs (Downs), doing business as
circumstances." --Reighard v. Downs, 261 Md. 26, 273 Harford Survey Associates, and Earl Bradley Crabtree
A.2d 109, 112 (Md. 1971); Associated Ind. Contractors, (Crabtree), Downs' employee, …
Inc. v. Fleming Eng'g, Inc., 162 N.C. App. 405, 590 S.E.2d } …when it developed that a tract of land Reighard
866, 870 (N.C. Ct. App. 2004) purchased in Harford County contained two and a half
} (providing nearly identical language). We agree with the acres less than a plat had shown.
Superior Court that the duty of care a land surveyor is } "enclosed area" to be "22.075 Ac. +/-".
obligated to provide is that degree of care that an
ordinarily competent surveyor would exercise in like
circumstances.
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} Reighard testified that he advised Crabtree (stipulated to } When Downs was requested to compute the size of each
have been an employee of Downs) that he wanted lots of of the then remaining 17 lots and the area included in the
approximately one acre in size with a minimum frontage roadbed it was discovered that the area enclosed on the
of 125 feet. plats (and purchased by Reighard) …
} Many additional plans were submitted. The June 3 plat } …comprised 19.58 acres rather than 22.075 acres.
showed 19 lots; the July 8 plat, 20 lots; the August 9 plat, } There was no contention of error in the laying down of
17 lots; and the September 27 plat, 17 lots. Settlement the lines.
was made on August 15, 1966. } The error was one of computation brought about by
inverting two coordinates when they were fed into a
calculating machine by Crabtree.

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17
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} Reighard assigns as error here the rulings of the trial } The parties stipulated, "[W]hen a surveyor states the area
judge (1) "holding [he] had no enforceable contractual included within a given perimeter and extends that
rights as a result of a direct agreement between the description to tenths or hundredths or thousandths and
parties… follows that designation with the symbols plus or minus,
} The liability of a surveyor for his errors does not differ } …that the plus or minus indicates variations only in the
from that of professional people generally. last stated digit; so that in cases where it would be stated
} He may be held responsible for such damages as are to the hundredths of an acre, the plus or minus implies
sustained as the result of his negligence and lack of skill. that there will be a difference of hundredths of acres;
} He is obliged to exercise that degree of care which a } and when it goes to thousandths of an acre, the plus or
surveyor of ordinary skill and prudence would exercise minus indicates variations of a thousandth of an acre or
under similar circumstances. thereabouts."
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} The other side of the coin, however, is that Reighard


made his offer believing that lots could be made out of
the tract proportionate to the acreage represented by
Downs as being in the tract, and in accordance with his
directions to Downs relative to subdivision. Beyond Ethics
} Certainly, a surveyor exercising ordinary skill and
prudence under similiar circumstances should not invert
the coordinates when computing acreage. In this case, the
erroneously computed acreage exceeded 10% of the true
acreage.

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} …appeals from an order of the State Board of } State Board asserted as reasons for his demand that
Professional Engineers and Land Surveyors (State respondent's license be revoked that said convictions
Board) revoking his license for land surveying … demonstrated conclusively that respondent lacked the
} …after his conviction in the United States District good character and reputation required for licensure
Court of 16 counts of conspiracy, bribery and as a land surveyor under N.J.S.A. 45:8-35, …
extortion while he was Commissioner of the } …and that the acts for which respondent was
Department of Public Works for the City of Atlantic convicted were "inconsistent with the public welfare
City. and are such a gross dereliction from the duties of
good citizenship and professional responsibility of
honesty and fair dealing, that they constitute
misconduct in the practice of land surveying

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} Licenses to practice professional engineering or } In the light of these tenets we have no difficulty in
professional land surveying are required as a matter of determining that the State Board acted appropriately
public policy of this State "[i]n order to safeguard life, within the jurisdiction conferred upon it. Its finding of
health and property, and promote the public welfare * appellant's tainted character and reputation supported
} Like the profession of engineering, we regard that of by ample proof of his convictions warranted the
land surveying as "no ordinary trade or calling." revocation within the legislative authority.
} It involves not only skill and knowledge, but certainly } In the first place, it would appear to be incongruous
honesty, integrity and reliability. that one must have a good character and reputation in
} The products of land surveyors are cornerstones of order to qualify for a license, but need not continue to
titles and are relied upon by real estate purchasers, enjoy the same character and reputation once the
lenders and title insurers. license is issued.

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} The surveyor, on the other hand, must inquire into all


the facts, giving due prominence to the acts of parties
} If the original monuments are no longer discoverable, the
concerned, and …
question of location becomes one of evidence merely.
} It is merely idle for any State statute to direct a surveyor } …always keeping in mind, first, that neither his
to locate or "establish" a corner, as the place of the opinion nor his survey can be conclusive upon parties
original monument, according to some inflexible rule. concerned, and, second, that courts and juries may be
required to follow after the surveyor over the same
ground, and that…
} … it is exceedingly desirable that he govern his action
by the same lights and the same rules that will govern
theirs.
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} Both parties submitted into evidence the testimony of } Where a surveyor, whose qualifications are accepted by
surveyors. The defendants' surveyor failed to search back the court, has made a map showing the sum of various
the title to determine the source of the Benning parcel. acquisitions based upon an examination of the chain of
} The plaintiffs' surveyor searched title back as far as the title of all the parties affected, a review of the maps of
mid-1850s, also inspecting the deeds of adjoining record and information in the town records, an
neighbors. On the basis of his search of the deeds, maps inspection of the property in question, field work and
of record, assessor's information, his inspection of the calculations, his testimony may be accepted as that of an
property, the field work and calculations done by his expert.
associates and his own experience as a registered
surveyor, the plaintiffs' surveyor determined that the
disputed portion of land was within the plaintiffs'
boundaries.
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} Beyer relied on a survey by Arthur James Schappell, Jr.,


} His opinion "requires not merely a knowledge of the a licensed land surveyor,
principles and practices of conveyancing as far as they
} Schappell testified that while preparing the survey he
enter into the interpretation of deeds,
recorded the location of a dust bin, a building, a
} …but also the power to compare and coordinate various number of concrete pads, a dumpster set against one
descriptions of the land in question and of other adjacent of the buildings, and piles of stacked pallets, all of
lands and to fit together the boundaries, monuments and which had been encroaching on the roadway.
other indicia of location so as to apply the terms of the
} Schappell noted that the encroaching objects were not
deeds to the actual ground as represented upon a
included on the 1990 survey, but acknowledged that
properly authenticated map.
their absence from the survey did not mean those
} Such a function is so much a matter of special training items were not on the property at that time.
and experience as to fall within the proper range of
expert knowledge."
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In reaching this conclusion, the Superior Court Justice


accepted the testimony of the witness surveyor that } The bulk of landowner's arguments surround the
he could find the starting point in the deed. credibility the trial court gave to testimony from
The surveyor had traced the title back to 1852. surveyor AAAAAA, surveyor BBBBBB, and several
Furthermore, the Justice may have taken into
consideration the fact that the title to the described former Bethel townspeople.
land had been researched by attorney and that a } It is the trier of fact, however, who evaluates the
certificate of title had been given. credibility of the witnesses and the persuasive effect
The weight to be given to the opinions of surveyors, of the testimony. Cabot v. Cabot, 166 Vt. 485, 497,
as well as the credibility of any witness, is the 697 A.2d 644, 652 (1997) (noting that as the trier of
prerogative of the trier of facts, here the single
Justice. Rusha v. Little, Me., 309 A.2d 867 (1973); fact, it is the province of the trial court to evaluate
Perkins v. Conary, Me., 295 A.2d 644 (1972); Sowles the credibility of witnesses).
v. Beaumier, Me., 227 A.2d 473 (1967).
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} In July 2010, Johnson filed a motion to continue the On deposition, AAAAAA testified that, to do an
scheduled hearing on the Elliotts' second motion for apportionment survey, you must find the original bank and
partial summary judgment, requesting time to allow establish endpoints to establish where to begin and end
his newly-retained surveyors (BBBBBBBB and the apportionment calculation. He admitted that, to find
CCCCCCCC) to complete a second apportionment his endpoints, …
survey. Johnson asserted the newly-retained experts he "started at the bridge--which that's a good spot to
were necessary because his original surveyor, start, because that's where [he] had to unload to get out--
AAAAAAA, had been discredited. [n]ow at the time, not knowing, really, where it all tied back
} Summary judgment evidence established that, on in, that's just where I started, at that time." He confirmed
deposition, AAAAAAA "admit[ted] he had failed to his survey was based in part on GPS shots taken while
comply with reasonable survey standards" and failed flying over the area in an airplane to "fill in what voids I
to establish a critical survey point on the ground by might have" where he "couldn't get to it" despite having
simply picking his point of beginning at random. agreed with counsel that the survey points should be
located on the ground.
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20
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} Trial courts are expected to perform a gatekeeper role


in determining whether there exists a reasonable need
for an expert's testimony, and what the parameters of
that testimony may be.
Frye Test & } Consistent with Evidence Rule 702, a trial court must
be satisfied that the expert's knowledge and
Daubert Test experience is reasonably required to inform the jury
on a matter that may be beyond the jurors' ken and
will help jurors understand the evidence or determine
a fact in issue.

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} Expert testimony, including opinions that embrace q "The rule is that the opinions of experts or skilled
ultimate issues, is permitted when the testimony has witnesses are admissible in evidence …
value in assisting the jury's understanding of facts and q …in those cases in which the matter of inquiry is such
their significance, and when the trial court finds that that inexperienced persons are unlikely to prove
that testimony is not unduly prejudicial. capable of forming a correct judgment upon it, …
q …for the reason that the subject-matter so far partakes
of a science, art, or trade as to require a previous habit
or experience or study in it, in order to acquire a
knowledge of it.
[KK continued]

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q When the question involved does not lie within the q while courts will go a long way in admitting expert
range of common experience or common knowledge, … testimony deduced from a well-recognized scientific
q …but requires special experience or special knowledge, principle or discovery, …
q then the opinions of witnesses skilled in that particular q …the thing from which the deduction is made must be
science, art, or trade to which the question relates are sufficiently established to have gained general
admissible in evidence." acceptance in the particular field in which it belongs.

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} The State argues that the firearms toolmark testimony } See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir.
was admitted properly under Frye-Reed, because the 1923)
expert witnesses used the method traditionally used in } (holding that with respect to scientific evidence, "the
Maryland, by both the Maryland State Police and the thing from which the deduction is made must be
forensic laboratories located in Maryland. The State sufficiently established to have gained general acceptance
argues further that its reliability has been judicially in the particular field in which it belongs.").
noticed in Maryland. } The Frye standard was adopted in Maryland in Reed v.
} The admissibility of expert testimony concerning State, 283 Md. 374, 389, 391 A.2d 364, 372 (1978)
scientific or forensic evidence is governed in Maryland by (discussing the policy considerations behind the "general
the Frye-Reed standard, which provides that scientific acceptance" requirement, and concluding that…
techniques can be admissible if they are "generally
accepted" in the scientific community.
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} …"[f]or the foregoing reasons, we agree with the 'general } In Daubert v Merrell Dow Pharmaceuticals, Inc., 509 U.S,
acceptance' rule which the Frye case sets forth."). 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), held that
} The Court of Appeals has encapsulated the standard as the Frye standard had been superseded by Federal Rule of
follows: Evidence 702.
} "Where the validity and reliability is so broadly and } However, when the Maryland Rules of Evidence were
generally accepted within the scientific community, as is drafted, the Committee specifically stated that Maryland
the case of ballistics tests, blood tests, and the like, a trial Rule 5-702, although patterned on the Federal Rule, was
court may take judicial notice of its reliability. not intended to overrule Reed v. State, 283 Md. 374, 391
} Likewise, a court may take judicial notice that certain A.2d 364 and the Frye-Reed standard is followed in
procedures, widely recognized as bogus or experimental, Maryland to determine the admissibility of scientific
are unreliable." evidence.

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} "Relevant evidence" is defined as that which has "any } under the Rules the trial judge must ensure that any
tendency to make the existence of any fact that is of and all scientific testimony or evidence admitted is
consequence to the determination of the action more not only relevant, but reliable.
probable or less probable than it would be without the } the requirement that an expert's testimony pertain to
evidence. "scientific knowledge" establishes a standard of
} If scientific, technical, or other specialized knowledge evidentiary reliability.
will assist the trier of fact to understand the evidence or } Expert testimony which does not relate to any issue in
to determine a fact in issue, a witness qualified as an the case is not relevant and, ergo, non-helpful
expert by knowledge, skill, experience, training, or
education, may testify thereto in the form of an opinion
or otherwise."
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} Faced with a proffer of expert scientific testimony, } Ordinarily, a key question to be answered in
then, the trial judge must determine at the outset, determining whether a theory or technique is
pursuant to Rule 104(a), scientific knowledge that will assist the trier of fact
} …whether the expert is proposing to testify to (1) will be whether it can be (and has been) tested.
scientific knowledge that… } "Scientific methodology today is based on generating
} (2) will assist the trier of fact to understand or hypotheses and testing them to see if they can be
determine a fact in issue. This entails a preliminary falsified; indeed, this methodology is what
assessment of whether the reasoning or methodology distinguishes science from other fields of human
underlying the testimony is scientifically valid and of inquiry."
whether that reasoning or methodology properly can
be applied to the facts in issue.
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Another pertinent consideration is whether the theory or Finally, "general acceptance" can yet have a bearing on
technique has been subjected to peer review and the inquiry. A "reliability assessment does not require,
publication. although it does permit, explicit identification of a
…in some instances well-grounded but innovative relevant scientific community and an express
theories will not have been published, determination of a particular degree of acceptance
…Some propositions, moreover, are too particular, too within that community."
new, or of too limited interest to be published. Widespread acceptance can be an important factor in
…But submission to the scrutiny of the scientific ruling particular evidence admissible, and "a known
community is a component of "good science," in part technique which has been able to attract only minimal
because it increases the likelihood that substantive flaws support within the community," … may properly be
in methodology will be detected. viewed with skepticism.

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Throughout, a judge assessing a proffer of expert Vigorous cross-examination, presentation of contrary


scientific testimony under Rule 702 should also be evidence, and careful instruction on the burden of proof
mindful of other applicable rules. are the traditional and appropriate means of attacking
shaky but admissible evidence.
Rule 703 provides that expert opinions based on
To summarize: "General acceptance" is not a necessary
otherwise inadmissible hearsay are to be admitted only
precondition to the admissibility of scientific evidence
if the facts or data are "of a type reasonably relied upon under the Federal Rules of Evidence, but the Rules of
by experts in the particular field in forming opinions or Evidence -- especially Rule 702 -- do assign to the trial
inferences upon the subject." judge the task of ensuring that an expert's testimony both
rests on a reliable foundation and is relevant to the task at
hand. Pertinent evidence based on scientifically valid
principles will satisfy those demands.

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} New Jersey Rule of Evidence 702, which is virtually } In effect, this rule imposes three basic requirements
identical to former Evid. R. 56(2), governs the on the admission of expert testimony:
admission of expert testimony. The rule provides: } (1) the intended testimony must concern a subject
} If scientific, technical, or other specialized knowledge matter that is beyond the ken of the average juror;
will assist the trier of fact to understand the evidence } (2) the subject of the testimony must be at a state of
or to determine a fact in issue, … the art such that an expert's testimony could be
} …a witness qualified as an expert by knowledge, skill, sufficiently reliable; and
experience, training, or education may testify thereto } (3) the witness must have sufficient expertise to
in the form of an opinion or otherwise. explain the intended testimony.

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} we continue to apply the general acceptance or Frye } In 1993, the United States Supreme Court abandoned
test for determining the scientific reliability of expert Frye's general-acceptance standard as the exclusive
testimony. In Frye, … the court wrote: test for admitting scientific testimony in favor of the
} [W]hile courts will go a long way in admitting expert more relaxed standards of Federal Rule of Evidence
testimony deduced from a well-recognized scientific 702.
principle or discovery, the thing from which the } Even before the United States Supreme Court decided
deduction is made must be sufficiently established to Daubert, this Court had relaxed the test for
have gained general acceptance in the particular field admissibility of scientific evidence in toxic-tort cases.
in which it belongs. } We have been cautious in expanding the more relaxed
standard to other contexts.
} Thus, the test in criminal cases remains whether the
scientific community generally accepts the evidence.
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} A proponent of a newly-devised scientific technology


can prove its general acceptance in three ways:
} (1) by expert testimony as to the general acceptance,
among those in the profession, of the premises on
which the proffered expert witness based his or her Daubert Test and
analysis;
} (2) by authoritative scientific and legal writings The Land Surveyor
indicating that the scientific community accepts the
premises underlying the proffered testimony; and
} (3) by judicial opinions that indicate the expert's
premises have gained general acceptance.

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} Before the court is Plaintiffs' June 24, 2009, Motion to } Plaintiffs seek to exclude Mr. Bennett's survey and
Exclude Defendant's Expert Surveyor, Walter Bennett 1, testimony pursuant to Fed. R. Evid. 702, arguing that Mr.
and his survey pursuant to Fed. R. Evid. 702 (D.E. # 48) Bennett's methodology fails to apply reliable principles
by way of Order of Reference for report and and methods. The rule provides that:
recommendation from Chief Judge Jon P. McCalla (D.E. # } If scientific, technical, or other specialized knowledge
49). will assist the trier of fact to understand the evidence or
} After considering the motion, response of the Defendant to determine a fact in issue, a witness qualified as an
and oral argument, it is recommended that Mr. expert by knowledge, skill, experience, training, or
Bennett's methodology is sufficiently reliable such that education, may testify thereto in the form of an opinion
his testimony and report should not be excluded. or otherwise, if…
} The case at bar is a boundary dispute. } [KK note: continued]

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} (1) the testimony is based upon sufficient facts or data, } Mr. Bennett's deposition testimony provides the
} (2) the testimony is the product of reliable principles following information regarding his experience, training
and methods, and and education: he has worked as a surveyor since 1966,
} (3) the witness has applied the principles and methods } …he completed the written surveying examination in
reliably to the facts of the case. 1977,
} In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. } … he has taken a number of seminars through the
579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), the… Arkansas Association of Registered Land Surveyors,
} … Supreme Court held that district courts must act as } Plaintiffs do not argue that Mr. Bennett's experience,
"gatekeepers" to protect juries from misleading or training and education are insufficient to qualify him as
unreliable expert testimony an expert in the area of surveying.

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} The next consideration is whether his testimony is based } A court must be sure not 'to exclude an expert's
upon sufficient facts or data, his testimony is the testimony on the ground that the court believes one
product of reliable principles and methods, and whether version of the facts and not the other.
he has applied the principles and methods reliably to the } Reliability instead means "an expert's testimony ... must
facts of the case. be 'supported by appropriate validation-i.e., 'good
} Factors to be considered in assessing reliability include grounds,' based on what is known."
whether the expert's theory may be tested or refuted, } Plaintiffs argue that because Mr. Bennett did not rely on
} the degree of acceptance of the theory or technique the Sloan survey to establish the boundary he did not
within the relevant community, and … apply reliable principles and methods.
} …whether the theory has been a subject of peer review } Plaintiffs cite Mr. Bennett's consideration of the tree line
or publication. in preparing his survey as another indication that his
methodology is flawed.
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} Plaintiffs also assert that Mr. Bennett failed to adhere to } In this case, there appear to be knowledgeable, qualified
the professional standard of care for surveyors and that experts on each side that have sound yet competing
said failure is justification for excluding his testimony means of determining what they believe to be the correct
and report. boundary line.
} Mr. Bennett met the standard offered by Plaintiffs. His } "Vigorous cross-examination, presentation of contrary
report details the steps that he took and includes evidence, and careful instruction on the burden of proof
substantially all of the steps listed by Plaintiffs. are the traditional and appropriate means of attacking
} Undoubtedly he reaches a different conclusion than shaky but admissible evidence."
Plaintiffs' expert but resolution and reconciliation of
competing expert reports and testimony is a credibility
issue reserved for the trier of fact…

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} The admission of evidence is wholly within the control of } Particularly relevant to this case, before an expert may
the trial court. give an opinion at trial, the offering party must satisfy
} All evidence and testimony must first meet the baseline the Daubert test,adopted by Kentucky in Mitchell v.
relevancy requirement, outlined in Kentucky Rules of Commonwealth.
Evidence (KRE) 402. } In serving as the gatekeeper in the admission of opinion
} Various other rules control the admission of all manner evidence under Daubert, a trial court is only entrusted
of evidence throughout a trial. with the responsibility of determining whether the expert
} The courts are also tasked with maintaining watch over opinion testimony based on "scientific, technical, or
the proper practice of cases and ensuring compliance other specialized knowledge"is relevant and reliable.
with either the Kentucky Rules of Civil Procedure (CR) or
the Kentucky Rules of Criminal Procedure (RCr),
preserving fairness for all parties as a result.

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} We highlight the court's role to illustrate clearly its } Outside of pure judicial enforcement, cross-examination
contrast with the Board's role. operates--at least in theory --to expose potential
} …beyond simple relevancy and reliability, the court and deceptive statements or worse, falsehoods, through
attorneys made no judgment on the content of Curd's impeachment.
testimony. The determination made by the court and } Cross-examination, however, "seldom is of adequate
attorneys, …went only to whether Curd was qualified as value when thrust against the broadside of the litigation
an expert to give opinion testimony not … expert who can so gracefully stiff-arm his unprepared
} …whether the opinion testimony he gave offended the cross-examiner.“
professional ethical standards established for Kentucky- } Perhaps especially in the context of expert testimony,
licensed land surveyors. Curd's testimony, regardless of cross-examination is rarely the silver bullet Curd
whether it was misleading or factually incorrect, was describes it to be.
relevant and reliable in the Daubert sense.

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} (1) "the expert will probably know more about the


scientific theories than the attorney[,] and the attorney
may have insufficient resources to develop an effective
cross-examination"; and
} (2) "cross-examination may provide the expert with an
opportunity to promote a theory detrimental to the
Rules of Evidence
cross-examining attorney's case.

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} A registered or licensed surveyor may testify as an expert


} Expert testimony may be admitted, in the form of an
witness, and is admissible in determining the boundary
opinion or otherwise, if the court determines that the
between properties.
testimony will assist the trier of fact to understand the
} A surveyor can testify as an expert about work performed by
evidence or to determine a fact in issue. In making that
other surveyors, and he or she can testify as to his or her
determination, the court shall determine
own survey performed on the property in dispute. The
surveyor's expert opinion can be based on deed descriptions, } (1) whether the witness is qualified as an expert by
field notes, maps, other surveys, points on the ground, facts knowledge, skill, experience, training, or education,
proved by other witnesses, and hearsay evidence, } (2) the appropriateness of the expert testimony on the
} but if a surveyor does not have a factual basis for his or her particular subject, and
location of the property line, his or her conclusion is not } (3) whether a sufficient factual basis exists to support the
evidence of the location of the boundary. expert testimony.
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} (a) In general. The facts or data in the particular case } (b) Disclosure to jury. If determined to be trustworthy,
upon which an expert bases an opinion or inference may necessary to illuminate testimony, and unprivileged, facts
be those perceived by or made known to the expert at or or data reasonably relied upon by an expert pursuant to
before the hearing. section (a) …
} If of a type reasonably relied upon by experts in the } …may, in the discretion of the court, be disclosed to the
particular field in forming opinions or inferences upon the jury even if those facts and data are not admissible in
subject, the facts or data need not be admissible in evidence.
evidence. } Upon request, the court shall instruct the jury to use
those facts and data only for the purpose of evaluating
the validity and probative value of the expert's opinion or
inference.
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} (c) Right to challenge expert. } (a) In general. Except as provided in section (b) of this
} This Rule does not limit the right of an opposing party to Rule, testimony in the form of an opinion or inference
cross-examine an expert witness or to test the basis of otherwise admissible is not objectionable merely because
the expert's opinion or inference. it embraces an ultimate issue to be decided by the trier of
fact.
} (b) Opinion on mental state or condition. An expert
witness testifying with respect to the mental state or
condition of a defendant in a criminal case may not state
an opinion or inference as to whether the defendant had a
mental state or condition constituting an element of the
crime charged. That issue is for the trier of fact alone…

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} At trial, the Smiths presented expert testimony by } … Browns complain that, although Rolls is unquestionably
attorney and licensed title insurance underwriter Randall an expert, the trial court erred in permitting Rolls "to
Rolls, who has given title opinions on properties in testify as to the original grantor's intent." In their view,
Frederick County for more than 27 years. this testimony constituted a "guess" as to "what the
} Rolls observed that the deed scrivener's detailed metes parties' original intent was[,]" which should have been
and bounds description of the right of way demonstrated excluded as impermissible conjecture.
a "fairly high degree of sophistication," indicating that the } We do not agree.
deeds should be strictly construed because they were } First, even if Rolls did offer an opinion on the ultimate
created by a professional. issue of the grantor's intent, it was not error or an abuse
of discretion to admit it. See Md. Rule 5-704(a)

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} Second, the trial court ultimately rested its decision on


the language of the deeds themselves, reaching a legal,
not a factual, conclusion. See Calvert Joint Venture # 140
v. Snider, 373 Md. 18, 38, 816 A.2d 854 (2003)
} …"the construction of a deed is a legal question for the
court, and on appeal, it is subject to de novo review"). Hearsay Evidence
} Although the court may have been aided in reaching this
legal conclusion by Mr. Rolls' explanations, it was the
deeds themselves that were the basis for both Rolls'
opinion and the court's conclusion.

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} As we said in Warren v. Waterville Urban Renewal } If some of the expert's factual information is derived
Authority, 1967, Me., 235 A.2d 295: from sources fairly trustworthy though hearsay and he
} "The opinion of an expert is not necessarily rendered has as such the ability to co-ordinate and evaluate that
inadmissible or incompetent because it may be based information with all the other facts in his possession
on knowledge of facts gained from hearsay sources. secured through personal observation, the trial court
} Any expert worthy of the name must of necessity may in the exercise of a sound discretion permit the
assimilate prior learning derived from the experiences expert's ultimate opinion to be considered by the jury
of others. As an expert witness he draws upon various [the factfinder]."
sources of information whose credibility or } The defendants' counsel was within his rights in cross-
trustworthiness he must determine in the light of his examination to bring out before the factfinder some of
expertness. It would completely frustrate the use of the hear-say sources tapped by the surveyors to support
expert witnesses if they were obliged to substantiate their ultimate opinion, but, having done so, he cannot
each single factor upon which their ultimate opinion now complain about the hearsay, provided their ultimate
must depend upon firsthand personal knowledge or conclusion was actually based on their own independent
personal experience… investigation and calculations.
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} Proof of declarations of persons since deceased, in


} It has long been accepted in Maryland, as a matter of respect to private boundaries, to be admissible in
common law, that an expert witness may express an evidence, …
opinion that is based, in part, on hearsay if the hearsay is
} …must have been made by a declarant in possession
of a kind that is customarily relied on by experts in that
as owner at the time, …
particular calling.
} …and while engaged in pointing out the boundary in
} Dr. Davis stated that it was usual and customary in her
question, and such declarations need not be against
field of rehabilitation counseling to rely on medical
interest or in disparagement of title; …
personnel, social workers, and psychologists, as well as
on relevant records, statistical data, and literature, "in } …they are received when nothing appears to show an
order to get a full picture of the individual that we're interest to deceive or misrepresent.
working with, because my field crosses professions."
} That was not disputed by appellants.
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} In such cases, …being the mere voluntary statement of } To place it there and preserve the courses of the two
a stranger, not under oath, or in presence of parties, lines intervening between that and the C. N.
cannot, under any rule of reason or safety, be monument, required that those courses should be run
regarded as competent testimony upon which to from each monument to a point of intersection. This
determine private title to lands, … method of survey was approved by the testimony of
} …and whether made ante or post litem motam, are surveyors and engineers of reliable character and
equally objectionable and illegal; and while the courts experience.
of some states have, as it would seem, been willing to } The method of surveying by reverse courses to
receive such testimony, in this state we have not gone ascertain lost corners, or to correct the lines of a
so far. survey, is one in use and often indispensable in
removing errors in description, and has received
approval in the courts.
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} Appellant contends that the circuit court erred in


dismissing his tort and constitutional claims on the ground } appellant argues that the Survey Company owed him an
that the claims were barred by the statute of limitations. implied duty of care to complete an accurate survey.
Appellant maintains that the Survey Company’s failure to
} Appellant argues that he learned of the "concert of action
include Farm Road in the survey "must be considered a
to alienate [his] property rights" in August 2007, and that
breach of a standard of care to the public, including
he timely filed the second amended complaint weeks later.
[a]ppellant."
} Appellant maintains that the circuit court incorrectly
} Alternatively, appellant argues that the Survey Company’s
assumed that Plat 21707 was in his chain of title.
actions are so grievous that they create an immediate
} Appellant contends that appellees' intentional concealment apparent duty.
of the existence of Farm Road continues to this day

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} Survey Company contends that they owed no duty to } Md. Code Ann., Courts and Judicial Proceedings Art.
appellant because under Maryland law, "a surveyor of a ("CJP") § 5-101 provides that "[a] civil action at law shall
disputed boundary line does not owe a duty of care to a be filed within three years from the date it accrues unless
non-reliant third party adjacent landowner. another provision of the Code provides a different period
} A surveyor, therefore, cannot be held liable to such a of time within which an action shall be commenced.“
plaintiff." } Slander and libel fall under a different provision, CJP § 5-
} At oral argument, the Survey Company argued that the 105, which provides that "[a]n action for assault, libel, or
requirement that a surveyor in Maryland be licensed does slander shall be filed within one year from the date it
not create a duty to adjoining property owners who did accrues."
not rely on the work completed by the surveyor.

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} For purposes of the statute of limitations, when a cause } [A]ctual knowledge--that is express cognition, or
of action accrues in a civil case is determined by awareness implied from …knowledge of circumstances
application of the "discovery rule." which ought to have put a person of ordinary prudence on
} The "discovery rule" provides that "the action is deemed inquiry [thus, charging the individual] with notice of all
to accrue on the date when the plaintiff knew or, with due facts which such an investigation would in all probability
diligence, reasonably should have known of the wrong.“ have disclosed if it had been properly pursued.
} Under the "discovery rule," which was expanded generally } In other words, a [person] cannot fail to investigate when
to all civil cases in Poffenberger, 290 Md. at 636-38, the the propriety of the investigation is naturally suggested by
Court of Appeals held that the statute of limitations is circumstances known to him; and if he neglects to make
activated by: such inquiry, he will be held guilty of bad faith and must
suffer from his neglect.

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} One general exception to the accrual of the statute of } Although appellant alleged fraud and fraudulent
limitations occurs in situations in which a defendant concealment …the complaint falls far short of setting forth
fraudulently conceals the cause of action from the plaintiff specific allegations …
"so as to prevent its discovery by the exercise of due } Rather, appellant generally alleges that appellees
diligence." "conspired" and "were aware of, condoned, encouraged
} …that there was no fraudulent concealment as appellant's and participated in the conspiracy and/or concert of
claim of concealment was unsupported by the record. action" which "falsely" denied the existence of Farm Road.
} We are unconvinced that a fraudulent concealment theory } Appellant provides no facts to substantiate that appellees'
is applicable in this case. alleged fraud kept him in the dark as to a cause of action
or how he discovered the fraud, nor does appellant allege
facts accounting for any delay in discovering the fraud
despite his "exercise of ordinary diligence."
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} Although we conclude that the circuit court properly } There can be no negligence where there is no duty that is
dismissed the claims against the Survey Company on the due; for negligence is the breach of some duty that one
ground that the statute of limitations had expired, we person owes to another.
shall briefly address the issue of whether the Survey } It is consequently relative and can have no existence
Company owed appellant a duty of care. apart from some duty expressly or impliedly imposed.
} Appellant contends that the Survey Company, as licensed } In every instance before negligence can be predicated of
surveyors, owed a duty of care under Maryland law to a given act, back of the act must be sought and found a
members of the public, including him, to correctly survey duty to the individual complaining, the observance of
Brown's property and include Farm Road in the survey. which duty would have averted or avoided the injury.
} Simply put, we disagree.

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} As the duty owed varies with circumstances and with the } At the heart of this case and Carlotta is whether a
relation to each other of the individuals concerned, so surveyor owes a duty of care to other property owners
the alleged negligence varies, and the act complained of aside from the person who employs him.
never amounts to negligence in law or in fact; if there has } Here, there is a dispute concerning a licensed land
been no breach of duty. surveyor who allegedly conducted a survey and
} a surveyor of a disputed boundary line does not owe a "deliberately omitted" Farm Road as an easement.
duty of care to a non-reliant third party adjacent } Applying Carlotta, we hold that the mere licensing of
landowner. surveyors does not create a private cause of action by
} A surveyor, therefore, cannot be held liable to such a members of the general public against those surveyors.
plaintiff.

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} Absent any statutory or case law in Maryland } JUDGMENTS OF THE CIRCUIT COURT FOR MONTGOMERY
demonstrating that a surveyor owed a duty of care to the COUNTY AFFIRMED.
general public, including appellant, or that Maryland } COSTS TO BE PAID BY APPELLANT.
intended to create such a duty through licensing, we
decline to find that the Survey Company owed a duty to…
} (We did not extend tort liability to title companies, noting
that "[w]e have not been directed to, nor have we found,
a statutory obligation in Maryland that imposes on either
a title company or a title insurer a duty to exercise due
care in performing a title search, such as found in some
other jurisdictions.").

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In a boundary dispute, the ultimate object of the trier of


fact is to determine the "true location of the line in
dispute." …Moreover,
[w]hen this cannot be done with reasonable certainty
Closing Comments due to the lapse of time or the obliteration of the
evidence of the original locater, …
it is not only permissible, but, out of necessity, required
that the courts resort to any evidence tending to
establish the place of the original footsteps of the
surveyor which meet the requirement that it is the best
evidence of which the case is susceptible.

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Although the parties do not direct us to, nor can we } …entire case began because there is a belief that the
find, any Texas case interpreting the phrase original survey done by Mr. Mastrangelo in 1969
"substantially correct" as used in a boundary dispute appeared to the plaintiffs to be incorrect.
jury charge, courts have clarified the phrase in other } Then began a series of additional surveys. We have the
contexts. Newell survey, the Harris survey, the two PJE surveys,
and the final survey, the Pivovarnick survey.
Substantially correct . . . does not mean that it must be
} Each of those were dealt with at length [already] and I
absolutely correct, nor does it mean one that is merely am not going to dwell on them any further except…
sufficient to call the matter to the attention of the court } … to point out that [all four] as well as the conclusion
will suffice. It means one that in substance and in the of the two surveyors on the Commission, Mr. Smith
main is correct, and that is not affirmatively incorrect. and Mr. Sypniewski, all came to the same conclusion
regarding the situation in question. . . . The strip in
question is the property of the plaintiff[s].
Kristopher M. Kline, 2Point, Inc.
© Copyright 2017: All Rights Reserved

32
8/19/17

} It is also pertinent to note that the defendant's family } So that not only is there an inability of the defendant to
engaged two of the surveyors, Mr. Pivovarnick and Mr. produce expert testimony to support [her] position, but
Sperling of LGA. As a result, the defendant finds herself the defendant would ask …
in the rather unique position of having engaged two
experts that agree with the plaintiffs . . . . } …that the court essentially disregard the findings of six
experts, two on the Commission, two surveyors, two
} …[defendant is unable] to produce anyone with an
engineering background or a survey background to hired by each of the parties, all of which come to the
support [her] claim. same conclusion, …
} This is not because defendant didn't try. It is because } …and allow her assessment as a layman having no
on several occasions people with the expertise to expertise in that field to triumph. That is essentially the
conduct surveys and analyze drawings and proposition that the defendant seeks to have the court
measurements in a professional capacity did not agree [accept].
with her assertions regarding the thirty-three foot strip.

q The greatest burden of an appellate court - usually - is


} Surveyors are not insurers of the correctness of their that of searching, sifting, and stating the facts of
findings … reviewable moment. With the facts assembled and known
} …but may be held liable for damages caused by breach for what they are, the legal jugular of the case invariably
of their duty to perform a survey with the care, skill, becomes exposed for definitive and precedential treatment
knowledge and diligence expected of a professional q "More and more, we lawyers are awaking to a perception of
surveyor. the truth that what divides and distracts us in the solution
of a legal problem is not so much uncertainty about the
law as uncertainty about the facts -- the facts which
generate the law.
q Let the facts be known as they are, and the law will sprout
from the seed and turn its branches toward the light."
Kristopher M. Kline, 2Point, Inc.
© Copyright 2017: All Rights Reserved

} Following the guide of Rosenberg, this court is of the


view that the defendants, as surveyors, fall within the
protection afforded by N.J.S.A. 2A:14-1.1.

Questions?
} There can be little doubt that the work of a surveyor is
an integral part in the design and planning of a
residential housing development.
} The reports, analysis, investigation and plat map
preparation are all necessary elements in the planning
of such an improvement to land.

Kristopher M. Kline, 2Point, Inc.


© Copyright 2017: All Rights Reserved

33