*1 THE IN COURT APPEALS 405 OF ENG’G, CONTR’RS, v. INC. INC. FLEMING (2004)] N.C. 405
[162 adjudicatory findings fact, including order lists the hearsay above, based on findings erroneous inadmissible discussed separate and then of law for the and makes conclusions female male clearly child. The trial court does not state what or facts it evidence adjudicate neglected relied whether Mrs. Mashburn abused or by trial using her children. The evidence of Mr. erred court neglect or Mashburn’s abuse to find that Mrs. Mashburn abused and neglected daughter either her or son. long recognized right par-
Our Courts have “fundamental care, concerning custody, ents to make decisions and control of Owenby Young, 142, 144, their children.” v. S.E.2d Granville, 266 (2003) (quoting 57, 66, Troxel v. 530 U.S. 147L. Ed. 2d Here, parental (2000)). trial court violated Mrs. Mashbum’s by rights considering and constitutional evidence of Mr. Mashbum’s erroneously neglect against abuse and Mashburn admitted Mrs. and parent concluding neglected that she abused and her children. Each separate parental rights sepa- holds distinct and to a and is entitled adjudication. parent’s neglect rate Evidence of one abuse or cannot bootstrapped support parent allegations against be with- other independent showing complicity out with or other clear convinc- ing neglect by parent. evidence of other abuse
IV. Conclusion agree We all trial in admitting considering court erred hearsay regarding of Mr. allegations evidence Mashbum’s abuse and prejudiced neglect. parental rights I Mrs. conclude Mashbum’s by allowing trial erred fail- this into evidence. The court ing petition against to dismiss the Mrs. Mashburn on her motion. I charges neglect vote to trial court reverse the as to the of abuse respectfully Mrs. Mashburn on her two dissent. children. INDUSTRIAL ASSOCIATED Plaintiff CONTRACTORS, INC., FLEMING Defendant ENGINEERING, INC.,
No. COA02-1720 (Filed 2004) 3 February Negligence— surveying of care —standard years of a ten Plaintiff’s offer of with experience employed sufficient who was defendant was THE OF APPEALS IN COURT *2 survey- negligent in a claim for the standard of care establish the trier Moreover, expert is not where ing. the issues based on common of fact is able to decide experience. surveying judicial of statutes Negligence— notice 2. — in a trial on a was not error bench Judicial notice of statutes findings indicate that the surveying claim where negligent nature of defend- setting forth the court viewed the statutes Any statutes as set- profession. regarding error in certain ant’s plaintiff was harmless because ting specific a standard of care and because of the standard of care presented sufficient evidence knowledge and care was within the common the standard of experience the trial court. surveyors Negligence— sufficient — evidence negligent find a was sufficient evidence to
There contrary. trial, despite to the a bench evidence Judge dissenting. Eagles May judgment entered 31 2002 and
Appeal defendant from III, in Craig, John O. Judge 17 June 2002 order entered Appeals 13 County Superior Heard in the Court of Rockingham Court. October 2003. Bernstein, L.L.P., by Thompson, R. Bruce
Parker, Poe, Adams & Oakley, plaintiff-appellee. N. II, and Heather for Kincheloe, L.L.P, by Allen C. Hedrick, Batman, Gardner & Childers, defendant-appellant. C.J. Smith and GEER, Judge. surveying Engineering, (“Fleming”), Inc. a Fleming
Defendant judgment following a bench company, appeals from the trial court’s Contractors, Inc. plaintiff Industrial trial in favor of Associated in connection with contractor that hired defendant (“AIC”), general responsibil- Fleming’s It was building of a addition. the construction ity perform survey pinpoint would the location for columns addition in order to ensure that the forming the framework of the completely square. After com- be addition's walls would construction, AIC discovered pleted began and AIC wall of the structure was not forming the south the line of columns IN THE COURT OF APPEALS v. FLEMING INC. parallel wall, to the north but rather was skewed. The central issue at Fleming negligently trial was whether misidentified the location for improperly placed the columns or whether AIC the columns after the points correctly by Fleming. center for the columns had been set We support hold that the record contains sufficient evidence to the trial party. negligent court’s determination that was the Honda hired an existing AIC build addition to the west of an building facility Swepsonville, its at North Carolina. Because an overhead crane needed to travel existing building on rails from the through addition, the new (approximately structure 80 feet wide long) perfectly square 120 feet had to be main building. with the plans columns, for the addition called for ten five on the north *3 side of the addition and five on the south side. Each column was to place by plate be held a base with had anchor bolts that been low- already a footing. Footings ered into existed for the two columns closest to the main building, but the location of each of the remain- ing eight columns surveying. needed to be determined professional
AIC that it surveying decided needed to hire a firm to acceptable locate the columns because the tolerances for the tight plate design columns were so as a result of the column’s base running and the crane main building from the into the addition. AIC supervisors had determined that each column could be no more than one-eighth alignment. employees of an inch out of AIC did not believe they could use conventional methods to the location of necessary accuracy the columns with the because were several there closely existing buildings surrounding the construction site and identify attempts because constant wind interfered with their to the points plumb bob, column center with a one of the traditional tech- niques. professional surveyor, using AIC concluded that a electronic devices, placement was needed to ensure accurate of the columns. survey. perform
In late December AIC hired the surveyor Johnny Register, Jr. met with AIC construction superintendent Lanny Joyce plans to review the architectural requirements, including AIC’s the location and distance between the building precisely square. columns and the need to have the Register Mr. a AIC called as witness and he described detail performed survey. alone, how he He did not work but rather brought Fleming employee, Davis, him another John with to act as his They transit, “instrument man.” worked with an electronic a device equipped scope person allowing with a that has a zoom focus v. FLEMING INC. “couple string plumb lines on a bob a of hundred
operating it to see addition, reports away[.]” angle feet In it has an LCD screen that person being that are measured. has rotated and distances operated Mr. marked Register Mr. Davis the electronic transit while points. points the columns and offset with nails both the center for they supposed Mr. that each of According Register, were to ensure points straight angle extending the column center was on a 180° line points existing building. out on the The north and from established points supposed parallel south lines of column center to be required angles. of the addition were to be 90° the corners operated Mr. Davis the electronic transit to check the distances placement point for the of each nail at a center and to check the nec- essary placed nails; process, angles. Register Mr. then in the he plumb body Mr. blocking Although used a bob with his the wind. man,” Register testified that Mr. Davis was the “instrument Mr. reported through the instrument to Register that he “did look back through points.” straight confirm lines most of these respect points, With knew that AIC offset and, would be to excavate the footers the columns points. purpose result, remove the nails at the center The of the off- points accurately points set was to' enable AIC to recreate the center Fleming survey. parties dispute do not originally set They approach. dispute, however, this do whether conventional Register, completing survey, after recommended to AICthat it *4 survey performed points have a second to ensure that the center properly restored. project Register surveying finished on December 2000. superintendent Joyce attempted When AIC construction to check by appeared Register’s using tape measure, work it to be accurate complete although he was unable to his check because excavation equipment parked along had been one of the lines. points
In order to relocate the center after the footers had been nylon dug, employees strings point AIC attached to the offset nails pulled point strings and them taut. The where the intersected indi- point line, cated the center for each column. On the south column successfully employees completed AIC the footers for three columns points using points and the center the offset that Mr. recreated specified. they column, Register had When started work on the fourth they part however, extending realized that of a concrete slab was into the area for the footer and would have to be removed. The “batter THE OF APPEALS
IN COURT by Mr. attached to containing Register the offset nail set was board” to be moved. The “batter board” the concrete slab had nail was string original back and a attached to the offset moved technique, accord- using back to the new “batter board” extended proper alignment ing employees, designed to AIC to maintain the point the final that AIC would be able to recreate the center for so accurately. employee performed the work column The AIC who technique way doing it, but it’s still described the as “the old way.” project, Flanigan, manager the best AIC’s for the Honda Scott ... It claimed, “We move all the time. is not boards] [a] [batter say, Scott, significant moving . . . event for them to call and we’re a batter board.” crossbeams, AIC
After AIC had installed the columns joists top setting While the first began erecting of the columns. joist, column at the southwest comer of the AIC discovered joist beyond addition was inches out of line so that the extended 5% They remaining the column. AIC then checked each of the columns. all along found that the columns the north side of the addition were correctly, set but that four columns on the south line were off: one inches, inches, by inches, by column one 4% one and one 5% 2% result, admitted, 1 % inches. As a as Mr. the south line of building . . . .” was not straight columns “was in a line at a skew The $23,000.00. square. reposition the columns at a cost of Plaintiff had to negligently performed its Fleming alleging AIC sued that, proximate Fleming’s negligence, as a result of AIC proper position. replacing columns in the had to incur the cost of $436.25 alleged for the amount of that it Defendant counterclaimed survey. completion AIC of the owed “by trial, greater trial court found
Following a bench weight evidence, that the Defendant miscalculated the location proximately failure along of the columns the south wall” and that this $23,000.00. plaintiff damages caused AIC the amount of $436.00 owed AIC to from court deducted the amount of $22,564.00.Fleming judgment the award and entered the amount appealed judgment. from that has
[1] We first address whether the trial court should have granted 41(b) motion to dismiss based on AIC’sfailure to defendant’s Rule applicable present expert testimony the standard of care to as to 410 ENG’G, INC. N.C. 405 Generally, surveyor required
Fleming.
engineer
or civil
is
to ex
surveyor
degree
engineer
“that
of care which a
or
of
ercise
civil
ordinary
prudence
skill and
would exercise under similar circum
-
stances,
respect
negligence
and if he fails in this
and his
causes
injury,
injury.”
Jones,
he will be liable for that
Davidson &
Inc. v.
661,
County
Hanover,
668,
580, 585,
New
41 N.C.
S.E.2d
255
of
295,
(1979).
disc. review
298 N.C.
The standard of care which finder may professional. pur- of fact measure the actual conduct of the pose introducing profes- evidence as in a to the standard of care negligence sional lawsuit “is to see if this defendant’s actions ‘lived up’ Matthewson, App. 562, to that standard . . . .” Little v. 114 N.C. 567, 567, per curiam, 102, 442 (1994), S.E.2d 570 340 N.C. 455 aff’d Ordinarily, expert testimony (1995). required S.E.2d 160 to estab- Bailey Jones, App. 380, 387, lish the standard of care. 112 435 787, (1993). S.E.2d 792
Here, plaintiff any experts. did not tender witnesses as Plain did, however, testimony Register, Fleming’s tiff offer the of Mr. sur veyor years experience. surveying with ten described in great detail what was hired to do and how he and his supposed accomplish responsibilities. assistant were to their He they explained supposed how to use the electronic transit device; step operator device, Davis, each was required take; step expected achieve; what each what they results; could do to double-check their and what the result they performed anticipated. should have been if This Linney, was sufficient to establish the standard of care. State v. 183, App. 169, 245, 531 S.E.2d (“whether or not a witness has formally expert controlling” been tendered as an is not if the witness may appropriately an qualifications), be considered based on appeal dismissed, disc. review dismissed and 352 N.C. (2000). Kosanin, App. 191, 196, S.E.2d See also Noell v. expert testimony (1995) (holding summary judgment malpractice to defeat in medical suit because defendant doctor’s admissions were sufficient to establish the stand care). ard of “
Moreover, expert required ... ‘is not to establish the comply care, care, prox- standard of failure with the standard of *6 411 IN OF APPEALS THE COURT CONTR’RS, ENG’G, v. FLEMING INC. INDUS. INC. ASSOCIATED App. (2004)] N.C. 406 [162 fact], its com cause, in situations where trier of based on imate [the ” experience, to decide those issues.’ knowledge able mon 312, 318, 65, Servs., Inc., App. 141 540 S.E.2d AONRisks N.C. Erler v. Little, App. 567, 570-71), 114 N.C. 442 S.E.2d at (quoting 69 at (2000) (2001). argue 738 Defendant does not review 548 S.E.2d disc. precludes knowledge complexity application of the common that only Instead, exception exception. urges that the should defendant apply professional “grossly negligent.” conduct is This Court when excep previously held, however, knowledge” “common has the professional’s applies (1) grossly neg either the conduct is tion when “ ligent; the are ‘of a nature that the common (2) or actions such laypersons the knowledge of is sufficient to find standard of care ” departure therefrom, proximate Little, 114 required, a or causation.’ 567-68, Bailey, App. at (quoting at at 792). 435 S.E.2d at any have Carolina
While we not located North decisions jurisdictions present case, other con- circumstances similar this analogous applied knowledge” have the “common fronted with facts one, Supreme In a of exception. case that mirrors this the Court necessary testimony the expert held that was not to establish Nevada surveyor pinpoint of care of a hired to the location standard support of the an addi- caissons that were to form foundational Mann, Daniel, tion a hotel. & Mendenhall v. Hilton Johnson Corp., 113, 115, (per (1982) 642 P.2d Hotels Nev. drilled, was that sev- curiam). After the caissons were it discovered incorrectly placed plaintiff reposition had been and the had to eral “pro- the Supreme The Nevada Court noted that them. plans specifications that and dimen- vided reflected location existing, and that the “emanated from sions of the caissons” accuracy monuments, of not in Location of which is doubt.” fixed “complex require did calculations or necessitate the caissons [] untrustworthy accuracy not be upon data such that could the reliance performance Id. at done a workmanlike manner.” expected from instruct affirming P.2d at In the trial court’s refusal to 115, 642 care, jury regarding the standard appellate court held: the standard of care must be determined
It is well settled that
involved is within the
by expert
unless
conduct
laypersons. Where,
case,
inas
the instant
knowledge
common
knowledge does not involve esoteric
the service rendered
uncertainty
professional’s
judgment, it is not
that calls for the
INC.
FLEMING
beyond
jury
adequacy
determine the
performance.
(citation
Id.
omitted).
Paragon
See also
Engineering,
Rhodes,
Inc. v.
*7
In
case,
this
we hold that the nature
Fleming’s
of
actions fell
within the
knowledge” exception
“common
requirement
to the
experts testify
requisite
as to the
standard of care. It is within the
common knowledge of a
surveyor
trier of fact that a
pinpoint
hired to
columns for a rectangular building
precisely
site that must
square
be
accurately
must
mark column locations so as to
in
result
two sets of
parallel
lines connected
four
angles.
90°
in Daniel,
As
understand-
ing this task “does not involve esoteric knowledge
uncertainty
professional’s
calls for the
judgment”
“beyond
nor is it
the knowl-
edge” of the trier of fact as to whether lines and angles
staked
surveyor
straight
square.
and
115,
Inc. v.
Co.,
&
Miles
160,
690,
S.E.2d
disc.
review
(1999),
in which a com
pany with contaminated soil
groundwater
and
alleged that an envi
ronmental consulting firm negligently performed remedial work.
reviewing
transcripts
After
exhibits,
and
this Court concluded
that the consulting firm’s work in delineating
scope
of contami
beyond
nation was
knowledge
jury
common
required
and
expert testimony.
Id. at
IN THE COURT OF CONTR’ES, II [2] Defendant next challenges trial court’s findings of fact taking judicial relating practice engi to the of notice of various statutes trial court found: neering surveying. and land Rules 201(b) (c) Rule of the North Carolina 3. Under Evidence, judicial of N.C.G.S. this Court takes notice relating to the 89C-3(6)(a) 89C-3(7)(a)(4), and N.C.G.S. § § practice surveying such that the engineering and land providing professional services engaged Defendant was mathematical, physical require special knowledge of which engineering sciences and the observation of construction compliance purposes assuring drawings with the for the specifications together setting resetting with [or] points. reference *8 Defendant, 89C-2, regu- and the as a §89C-3 Under N.C.G.S. duty professional engineer surveyor, legal and had a
lated public. case, property the In this the safeguard professional render its services in a ade- Defendant was to quate manner, light of Plaintiffs evidence workmanlike competent in employees performing its did not feel that finds that the Defendant failed to work themselves. The Court duty and failed to meet the standard of care legal meet its by N.C.G.S. 89C-2and N.C.G.S. 89C-3. § § created findings Webelieve that these indicate that the trial court viewed profession. See setting statutes as forth the nature of defendant’s 602, 604, Pell, L.L.P, 144 N.C. 550 S.E.2d Greene v. Pell & professional case, plaintiff “(1) must show (2001) (in negligence 523 duty profession; (2) the defendant’s the nature of the defendant’s duty conduct; (3) a breach of the conform to a certain standard injury plaintiffs”). example, For the trial proximately caused to the which includes in its def- 89C-3(7)(a)(4), cited N.C. Gen. Stat. § court surveyor’s by occupation “[d]etermining, the act of inition of a land position any... principles surveying, land ref- the use of the point[.]” 89C-3(7)(a)(4) (2003). N.C. Gen. Stat. § erence suggests that N.C. Gen. Stat. Finding To the extent that of Fact care, 89C-2, specific agree standard of we with (2003) -3 create §§ Any relying those statutes. Fleming that the trial court erred on was, however, presented sufficient evidence error harmless since AIC Mr. offering of care of defendant’s standard Register pertinent and because the standard of care was within the experience common judge. of the trial
Ill [3] Defendant argues that, even apart from the absence of tes timony, support the evidence is insufficient to the trial finding court’s negligent. that it was The trial judge’s findings of fact are conclusive appeal supported by if competent evidence, even if the record contrary. contains evidence to the Unlimited, Inc., Autos Huff App. 410, 413, (1996), cert. 279,487 (1997). S.E.2d 546 Our examination of the record reveals that competent supported evidence finding the trial court’s that negligent. undisputed
It is columns, virtually that the south line of although straight, was'skewed, i.e., parallel line, to the north which was a precise extending 180°line from main building. argued AIC employees Fleming’s had in making erred the calculations described Register when it came to the south wall. contended to contrary correctly placed the south columns were when Mr. completed and his assistant and became mis- aligned when AIC moved the batter board and recreated the center points. parties agree responsible that either AIC or Fleming was for the error. support
In of its claim that the error was Fleming, committed AIC project offered the of its manager, Flanigan. Scott Flanigan is a engineer profes- structural and has been licensed as a engineer. sional At the testimony, nearly time of his he had overseen projects. *9 Flanigan Mr. testified that the south columns were “in a straight line. if Again, just it was an error that placed we made—if we willy-nilly, expect the columns up, I’d one column to be one to be down, down, another one to be up.” another one to be back Mr. Register “they confirmed that was in a straight line at a skew” [sic] extending point out from the established on the main building. response
In Fleming’ssuggestion that the error occurred when AIC moved one boards, of the batter Mr. Flanigan and other wit- nesses testified already that three of the south placed columns were points based on the Fleming offset when the board was moved and only that the fourth column could have been moving affected Yet, of the batter board. the evidence established that all four columns were misaligned. OF APPEALS
IN THE COURT it contends con- pieces evidence that points to two “Mr. First, it claims that négligent. clusively that it was not establish by flopping straight that the lines were able to confirm Register was him to confirm This allowed moving without the base. the transit points on either degree angles between eighty (180) one-hundred however, not, establish equipment.” The evidence does side of his accuracy of the work. conclusively Register did confirm the that Mr. operating the transit that his assistant was Register Mr. testified putting Register Mr. was instrument”) while (also called “the device ground: nails into the Q Mr. points or would Davis you ground, set the in the Would points ground? in the set the points, I did look but also
A He ran the instrument. set through straight lines through the instrument to confirm back points. these most of person respon- Mr. was thus the added) Although Davis
(Emphasis testify. While Mr. angles, he did not establishing the lines and sible for Mr. Davis’ work for testimony that he checked indicates Register’s permit finding that he points,” would of these “most that he points. Register Mr. never testified all Since did not check line, straight his line of columns was a 180° that the south confirmed accurate on the figures were establish cannot states, testify, as defendant Register Mr. did Although line. south testi- angles, he never technique double-checking 180° about or that he Davis, performed that check he, opposed to Mr. as fied personal knowledge of the result. had superintendent that AIC’s construction
Second, Fleming argues survey was com- work after the Lanny Joyce Register’s Mr. checked points the center Joyce’s indicated that pleted Mr. measurements however, AIC, tolerance. permitted 1/8 of an inch within the measure, tape which Joyce using a was evidence that offered tape precise because provide measurement could not “[w]ith things, you’ve kinds of different temperature got all measure, ... moisture, weather, tem- tape shrinks because how much the you con- only get can it.” as accurate perature. It’s survey because the tape when he did the not use a firmed that he did argued precise.” AIC has “a whole lot more transit is electronic perform the having Fleming point of that the whole necessary within not achieve measurements AIC could because competing argu- parties’ means. The using conventional tolerance *10 N.C. Joyce’s merits weight given on the to be measurements were for the trier of fact to resolve. judge
The trial
was entitled to draw the
that since the
inference
straight
line was
but
angle
not at the correct
and since all four
columns on the-south
misaligned
just
line were
rather than
the one
affected
board,
likely
the moved batter
Fleming was more
than not
the source of the error.
dispositive.
The standard of review is
Even
though
presented
evidence that
responsible
AICwas
for mis
placement
columns,
a determination of
weight
and credi
bility
responsibility
of evidence was the
of the trial court as the fact
Harrison,
finder. Cartin v.
App. 697, 703,
151 N.C.
174,
567 S.E.2d
178,
denied,
disc. review
434,
356 N.C.
Affirmed.
Judge HUNTERconcurs. Judge
Chief separate opinion EAGLESdissents with prior to 30 January 2004.
EAGLES, Judge, dissenting. Chief plaintiff Because the failed to establish the standard of care required surveyor, to be exercised respectfully land dissent. surveyor
A land
“does not... undertake to insure the correctness
findings,”
of his
11 Am.
405; rather,
Jur. Proof of Facts
surveyor
2d
only “required
is
degree
exercise that
of care which a
engineer
ordinary
civil
prudence
skill and
would exercise under
similar circumstances . . . .”
Jones,
Davidson and
County
Inc. v.
Hanover,
App. 661, 668,
New
580, 585,
255 S.E.2d
disc. review
298
[162 only exception Proof of 2d Facts 407. The to this is where rule experience the “common and is [fact finder] compliance . . .” sufficient to evaluate with a standard of . care Delta Wysong Co., Env. App. 160, Consultants N.C. v. & 132 Miles N.C. of 168, 690, denied, 510 695-96, 379, S.E.2d disc. review 350 N.C. 536 71 (1999). S.E.2d unpersuaded am Register’s testimony that Mr. own was suffi requisite
cient to
Although
establish the
standard
care.
Mr.
Register
certainly qualified
testify
expert
area,
was
to
as an
in this
see
Linney,
App. 169, 183,
State v.
138 N.C.
245,
(wit
531 S.E.2d
256-57
may testify
qualified
ness
if
expert
formally
as an
though
even
not
appeal
witness),
tendered as an
dismissed and disc. review
595,
(2000),
testimony
failed to according those standards. Consequently, plaintiff’s expert testimony I would conclude requisite failed to establish standard of care. unpersuaded
I am also that this case falls within the “common exception knowledge” expert testimony. general requiring to the rule application knowledge’ exception of the ‘common has been “[T]he professional reserved for those situations where is so conduct grossly negligent layperson’s knowledge experience that a make professional.” shortcomings obvious the Env. Delta Consultants, majority, at at 696. The relying Daniel, Mann, & Johnson Mendenhall v. Hilton Hotels Corp., Paragon (1982) Engineering, Nev. P.2d 1086 — Rhodes, —, Ala. (1984),
Inc.
First, a careful wit of “several court was whether before that sue sup surveyors,” was sufficient professional nesses, who were not staking negligent defendant port the conclusion *12 — Ala. at —, at 274. The Court 451 So.2d survey Paragon, site. “expert[s] in plaintiffs witnesses were of although none found that surveyors, three of professional land sense,” i.e. technical testify experts virtue of competent to plaintiffs witnesses The at —, So.2d at 276. experience. Id. their wit of these ultimately that the concluded Paragon court at —, 451 jury’s Id. support the conclusion. to nesses was sufficient application gen on of Paragon was based at 277. Because So.2d exception, it is of knowledge” rule, than the “common rather eral litT value here. instructional tie filed for breach of contract
Moreover,
involves an action
Daniel
improperly pin-
surveyor when defendant
defendant
against the
The
support a structure.
designed to
pointed
location of caissons
“expert testimony
was whether
before the court
[wa]s
issue
duty.”Daniel,
at
Daniel is contract, negli- was for breach of in Daniel underlying action “implied an in Daniel is based on holding as the gence. [con- Insofar id., manner,” rather than in a duty perform workmanlike to tractual] the circumstances, the duty care under the exercise reasonable Davidson and inapposite to this case. See is reasoning of Daniel Hanover, County Jones, v. New Inc. of those on contract from actions based (1979) (distinguishing duties not impose contractual refusing negligence based contract). terms of the “expressly under the assumed” and strict toler- undisputed the conditions Second, that here it is of a knowledge, judgment skill and employing the necessitated ances (not- in See id. surveyor. the case Daniel. That was not professional in the record to indicate nothing ing “[t]here [wa]s this fac- I conclude that ....”). would required complex calculations and make distinguish Daniel discrepancy sufficient alone tual exception inapplicable. knowledge” the “common IN THE COURT OF APPEALS
STATE ESCOTO accepted surveying principles will, Even in strict adherence to yield cases, e.g. some inaccurate See 11 Am. Jur. measurements. 403-05, application 2d Therefore, Proof of Facts 2-3. of the “com- §§ exception mon knowledge” something must turn on more than approach, directly ultimate result. better reasoned which is more negligence standard, related apply to the is to the “common knowl- only edge” exception grossly négligent where the was so performed professional the manner in which he his that his services professional readily as a shortcomings apparent layperson. are to a Examples plans specifications, misreading would include faulty taking measurements, of recording that, errors in data if pointed yield corrected, out and would accurate results. These are types readily apparent be layperson, errors would to a explanation complex principles by expert without the need for an profession. impli- Since is no there evidence in the record that any errors, cates of these kinds of I would conclude that testi- mony necessary to determine whether defendant exercised the ordinarily degree prudent surveyor that an care would have exer- cised under similar circumstances. plaintiff
Accordingly, would hold that failed to establish the *13 applicable improperly standard care and the trial court denied defendant’s motion dismiss.
STATE OF NORTH CAROLINA v. LUDY ESCOTO LUIS FERNANDO JOSE RAMOS
No. COA03-70 February (Filed 2004) joinder to sever Criminal Law— motion of cases trial — multiple first-degree burglary, The trial court did err in a robbery first-degree kidnapping, dangerous and double with a weapon the trial denying case defendant’s motion sever by joining though the cases of the two defendants even an what the inmate testified about other defendant said about question incarcerated, (1) Bruton events while because: apply §15A-927(c)(l) rule and N.C.G.S. do not when both the subject inmate and the codefendant testified and were to cross- (2) policy defendant; strong examination our state has favor-