When someone is going to subdivide a parcel of real property, often before it can be sold as a build-able lot, the land owner will have to get a survey performed. While surveying has changed a great deal over the past 10 years as we moved from using chains similar to how a First Down in football is marked to sophisticated laser devices, surveying still relies heavily on the use of landmarks.
A landmark can be a natural thing such as large tree, or it can be an item placed in the ground by the surveyor. The purpose of the survey is to mark off where one property ends and the adjacent one begins and then create a map or survey of that land to record in the records office. This way, there is no question as to where the property line is situated. One of the common methods for marking these lines is for a surveyor to place a wooden stake in the ground and then put a safety flag on it to make it visible. After the perimeter has been marked, the surveyor will then replace the stake with a piece of metal rebar known as an iron and sink it into the ground so it can be found on a metal detector.
In Bixenmann v. Dickenson Land Surveyors, plaintiff was injured when he tripped on one of these stakes and fell. The question at issue in this appeal was whether the survey company was or was not negligent in placing the stake, which caused the plaintiff to slip and fall. As you can discuss with your Boston personal injury lawyer, in a negligence case, a person has a duty to act as a reasonable and prudent person in the same or similar situation so as to prevent a foreseeable injury to foreseeable persons and property. In this case, since we are dealing with a survey, the duty to is to act like a reasonable and prudent surveyor in placing stakes on a property.
In this case, defendant filed a motion for summary judgment, arguing that the plaintiff could not rely on lay testimony (no expert witnesses) about the standard practices in how a surveyor should or should not place stakes on a property such as plaintiff’s property. They contended that plaintiff should have identified an expert during the discovery phase of the pretrial process, and he had failed to do so. The trial court agreed with this argument and dismissed the claim against defendant.
At this point, plaintiff appealed trial court’s grant of defendant’s motion for summary judgment on grounds that lay testimony should be sufficient. The court, however, chose not to address this issue during the appellate review. Instead, the court of appeals decided to look at the issue of whether the surveyor owed any duty at all to plaintiff, since plaintiff was a third party to defendant, and defendant had not entered into any contract with plaintiff. The court decided that since there was no privity of contract or relationship between surveyor and plaintiff, there was no duty owed to plaintiff. The court affirmed the grant of summary judgment on these grounds, even though it was the original basis the trial judge used.
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Edwards v. Hy-Vee Inc., July 22, 2016, Supreme Court of Nebraska
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Alcala v. Marriott Int’l, Inc. – Icy Sidewalk Slip-and-Fall Lawsuit to be Retried, June 27, 2016, Boston Child Injury Lawyer Blog