Bixenmann v. Dickinson Land Surveyors
886 N.W.2d 277
Neb.2016Background
- Plaintiffs Lawrence and Norma Bixenmann sued Dickinson Land Surveyors after disputed survey stakes were placed on their property, alleging negligence.
- Case reached Nebraska Supreme Court on appeal; the court issued an opinion and then a supplemental opinion modifying parts of the original.
- Central factual question: whether the act of setting survey stakes constituted a "professional" act requiring expert testimony to prove standard of care, or merely ordinary negligence subject to common-knowledge juror determination.
- District court had concluded expert testimony was required; Bixenmanns argued the common-knowledge exception applied and no expert was necessary.
- The Supreme Court reviewed precedents on what qualifies as professional services and whether expert testimony is required to establish standard of care.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether setting survey stakes is a professional act requiring expert testimony | Bixenmanns: placement was a routine/manual act; ordinary negligence; common-knowledge exception applies | Dickinson: stake-setting is integral to surveying and requires professional judgment and skill; expert testimony needed | Held: Setting stakes is a professional act; expert testimony required to establish standard of care |
| Whether different standards of care apply to clients vs. nonclients for same conduct | Bixenmanns: implied different duties to different parties (argued indirectly) | Dickinson: one professional standard governs conduct toward all persons; cannot have two standards from same facts | Held: One duty measured by one professional standard applies; cannot impose two different standards |
| Applicability of common-knowledge exception to expert testimony requirement | Bixenmanns: conduct was obvious and within lay understanding, so exception applies | Dickinson: the negligence question requires specialized knowledge of surveyor practices | Held: Exception does not apply; jury would need expert evidence to assess customary surveyor conduct |
| Standard for distinguishing professional vs. ordinary negligence | Bixenmanns: stake-driving is manual, not professional | Dickinson: must examine whether act required professional judgment/skill within area of expertise | Held: Court adopts test focusing on whether act involved professional judgment; here it did |
Key Cases Cited
- Marx v. Hartford Acc. & Ind. Co., 183 Neb. 12, 157 N.W.2d 870 (1968) (distinguishes manual routine acts from professional services)
- Swassing v. Baum, 195 Neb. 651, 240 N.W.2d 24 (1976) (medical laboratory testing deemed professional because integral to physician’s services)
- Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830 N.W.2d 53 (2013) (court must examine nature and circumstances of act to decide if professional)
- Flowers v. Torrance Mem. Hosp. Med. Ctr., 8 Cal. 4th 992, 884 P.2d 142 (1994) (one factual predicate cannot give rise to two different standards of care)
- Thone v. Regional West Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008) (common-knowledge exception limited to extreme and obvious misconduct)