Bixenmann v. Dickinson Land Surveyors
294 Neb. 407
| Neb. | 2016Background
- In June 2010 Dickinson Land Surveyors (owned by a licensed Nebraska land surveyor) surveyed the Bixenmanns' property at the request of prospective buyers and left wooden stakes (approx. 12 inches high, visible) marking corners.
- Lawrence Bixenmann tripped on a survey stake near the driveway while unloading a lawnmower, suffering serious hip injuries.
- The Bixenmanns sued Dickinson for negligence and loss of consortium; Dickinson moved for summary judgment.
- Dickinson's owner submitted an affidavit stating he complied with industry standards and that leaving markers is standard practice; he is a registered surveyor and subject to licensing, continuing education, and disciplinary rules.
- The district court held surveyors are professionals, required expert testimony to establish breach of professional standard, and found the common-knowledge exception inapplicable; summary judgment for Dickinson was entered.
- On appeal the Nebraska Supreme Court affirmed, concluding surveyors are professionals and, independently, that Dickinson owed no duty to the Bixenmanns (no privity, no fraud or special facts) so summary judgment was proper.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether surveyors are "professionals" for professional-negligence rules | Bixenmanns contended the stake placement was ordinary negligence and not professional malpractice | Dickinson pointed to statutory licensure, required experience, continuing education, and regulatory oversight to show professional status | Surveyors are professionals (specialized training, licensure, continuing study, disciplinary scheme) |
| Whether expert testimony was required to prove breach of standard of care | Bixenmanns argued expert testimony was unnecessary because the alleged negligence was within common knowledge (ordinary negligence) | Dickinson argued that, as a professional, the standard of care must be shown by expert evidence | General rule: expert testimony required in professional negligence cases; common-knowledge exception is narrow and reserved for extreme, obvious misconduct (court did not reach exception because of duty analysis) |
| Whether the common-knowledge exception to expert testimony applied | Bixenmanns asserted the act was obvious to laypersons and thus no expert was needed | Dickinson asserted the matter involved specialized surveying practices beyond lay understanding | Exception is limited to extreme/obvious misconduct; court found surveying conduct not within that exception (but did not base final decision solely on this point) |
| Whether Dickinson owed a legal duty to the Bixenmanns (third-party liability) | Bixenmanns argued Dickinson's conduct created a duty to them as landowners injured on their property | Dickinson argued it was hired by prospective buyers, no privity or special facts creating a duty to the Bixenmanns | Held: No duty to third parties absent fraud or other extraordinary facts; here no privity or special facts → summary judgment affirmed |
Key Cases Cited
- Thone v. Regional West Med. Ctr., 275 Neb. 238 (discussing common-knowledge exception to expert testimony)
- Churchill v. Columbus Comm. Hosp., 285 Neb. 759 (defining factors for "profession" and reliance on licensure/education)
- Sulu v. Magana, 293 Neb. 148 (standard for reviewing whether a vocation is a profession is a question of law)
- Perez v. Stern, 279 Neb. 187 (limits on professional liability to third parties absent privity or fraud)
- Swanson v. Ptak, 268 Neb. 265 (duty analysis in negligence; whether a legal duty exists is a question of law)
- Jorgensen v. State Nat. Bank & Trust, 255 Neb. 241 (contrast case finding a vocation not a profession)