Bell v. Jones

• Decision Date: 31 December 1986
• Docket Number: No. 84-1755.,No. 85-23.,84-1755.,85-23.
• Citation: 523 A.2d 982
• Parties: Robert A. BELL and Robert Bell Associates, Inc., Appellants, v. Raymond M. JONES, Individually and t/a R.M. Jones & Associates, Consulting Engineers, Appellee. Raymond M. JONES, Individually and t/a R.M. Jones & Associates, Consulting Engineers, Appellant, v. Robert A. BELL and Robert Bell Associates, Inc., Appellees.
• Court: D.C. Court of Appeals

Page 982

523 A.2d 982

Robert A. BELL and Robert Bell Associates, Inc., Appellants, v. Raymond M. JONES, Individually and t/a R.M. Jones & Associates, Consulting Engineers, Appellee.

Raymond M. JONES, Individually and t/a R.M. Jones & Associates, Consulting Engineers, Appellant, v. Robert A. BELL and Robert Bell Associates, Inc., Appellees.

No. 84-1755.

No. 85-23.

District of Columbia Court of Appeals.

Argued September 24, 1985.

Decided December 31, 1986.

As Amended April 14, 1987.

COPYRIGHT MATERIAL OMITTED

Suzanne McQueen Caldwell, with whom William Caldwell, Washington, D.C., was on the brief, for appellants and cross-appellees Robert A. Bell and Robert Bell Associates, Inc.

James C. Gregg, with whom Vicki J. Hunt, Washington, D.C., was on the brief, for appellee and cross-appellant Raymond M. Jones.

Robert Acker, Washington, D.C., filed a brief for the District of Columbia Land Title Ass'n as amicus curiae.

Before FERREN, TERRY and ROGERS, Associate Judges.

TERRY, Associate Judge:

Robert A. Bell, an architect, and Robert Bell Associates, Inc., a corporation formed to purchase certain property in Georgetown and to construct eight town houses on that property, filed this negligence action against Raymond M. Jones, a registered professional engineer who does business as a surveyor in the District of Columbia under the name of R.M. Jones & Associates, Consulting Engineers. Bell¹ alleged that Jones prepared a "plat of survey" which erroneously represented the location of property lines and corner angles. Bell relied on this survey to draw architectural plans, but because of Jones' errors, Bell's construction costs were substantially increased. In this action Bell sought to recover those increased costs. After a nonjury trial, the court found that Jones was negligent, but also found that Bell was contributorily negligent and hence could not recover. Both parties appeal.

Jones contends on appeal that the trial court erred in ruling that Bell had established the appropriate standard of care for surveyors, in excluding Jones' proposed expert testimony on the standards and practices of the surveying profession in the District of Columbia, and in finding that he was negligent and that his negligence was a proximate cause of the increased construction costs to Bell. Bell contends that the trial court erred in finding that he was contributorily negligent in failing to tell Jones the uses to which he intended to put the survey and in relying on the survey to prepare architectural drawings and construction plans. Bell also asserts that D.C. Code § 2-2311(b) (1981), part of the Professional Engineers' Registration Act, bars the defense of contributory negligence; that even if he was contributorily negligent, the intervening negligence of Jones was the proximate cause of the increased construction costs; and that any contributory negligence on the part of Robert Bell should not be imputed to the corporate owner of the property, Robert Bell Associates, Inc.

We reject all of Jones' contentions. We also reject Bell's contention that he was not contributorily negligent when he initially failed to tell Jones the uses to which he intended to put the survey. However, we reverse the trial court's finding that Bell was contributorily negligent when he relied on the survey for architectural and construction purposes,² and remand the case for further proceedings to ascertain the amount of Bell's damages.

I

On November 7, 1978, Robert Bell telephoned Jones and hired him to survey a piece of property known as Lot 822, Square 1255, on Volta Place in Georgetown. Bell and other investors intended to purchase the property, to construct six new town houses on it, and to convert an existing building—a former police station—into two additional town houses. Bell wanted to have the property surveyed because a survey was required by the title company and the bank which was lending money for the project and because, as an architect, he needed a survey in order to design the buildings.

At trial neither party could remember the details of the telephone conversation. Jones recalled that Bell had asked him to make a survey of the property "with the idea of going to closing." To him this meant that Bell needed only "a piece of paper" showing that the property did indeed exist. Jones understood this to be the sole purpose of the survey, but he did not remember whether Bell specifically told him it was the sole purpose. Jones' handwritten notes of the conversation contained the phrase "plat of survey," but there was nothing in the notes to indicate the specific purpose for which the survey was to be used. Bell thought that the kind of survey he requested was self-evident, apparently unaware that there were different types of surveys.³ The trial court found that the $625 cost of the survey was not high enough to alert Jones, the surveyor, that Bell, the architect, intended to rely on the plat of survey for architectural or construction purposes.

In performing his assignment, Jones reviewed the records of the District of Columbia Surveyor's Office, including a plat of survey prepared by that office. He also visited the site to make spot checks. When he completed his own plat of survey, Jones placed his Professional Registered Engineer's stamp on it, together with a certification which read as follows:

CERTIFICATION: I hereby certify that I have carefully surveyed the property as shown and described hereon, in accordance with D.C. Surveyor's records, and have located all of the existing improvements thereon by transit and tape survey, and that the corners have been found or placed as shown, and that there are no encroachments either way across the property lines except as indicated.

Signed: Raymond M. Jones

Despite the certification, Jones did not personally use a transit⁴ in preparing the plat of survey, nor did Jones or his assistants use a transit to turn angles for the property corners. The court found that only spot checks of the record information were made, and that making spot checks was not the same as carefully surveying the property with a tape and transit (as the certification stated).

According to Jones, the certification meant only that he certified that measurements had been made in the field and that he had found them to be correct and in accordance with record information. There was no disclaimer or warning of any limitation on the use to which the survey could be put, although the evidence showed that such disclaimers are customarily placed on house location plats if they are not intended to be relied upon for certain purposes. The court found that Bell would not have used the plat for architectural and construction purposes if it had contained a warning or disclaimer.

In preparing architectural drawings for the proposed town houses, Bell assumed that the lot corners were right angles because the property lines were represented on Jones' plat of survey as being due north, due east, due south, and due west. Preparation of these drawings consumed approximately two man-years of work by Bell and his staff. There was no evidence that Bell specifically advised Jones that he was relying solely on the angle measurements supplied by Jones as a basis for architectural drawings or construction plans. The court found, nevertheless, that Bell and his staff relied on the plat of survey as a basis for the drawings because of the language of the certification and because it contained such exact measurements that it appeared to be reliable.

The bearings shown on the plat of survey drawn by Jones indicated that the north and south property lines were at 90—degree angles to the east and west property lines. In fact, two of the corners of the property were not 90 degrees as represented in the plat, but 90 degrees and 51 minutes. The evidence showed that Jones was aware that the corner angles were in fact 90 degrees and 51 minutes, even though he did not measure the angles himself, because this information was contained in the field notes of the District of Columbia Surveyor and also appeared in the notes which Jones made in November 1978. Jones acknowledged that this variance in the angles would be crucial for the construction drawings, and that if he knew his survey was going to be used as a basis for such drawings, he would be on notice that he should make an architect aware of the variance.

Jones' original plat of survey was completed on November 14, 1978. Bell requested some additional information, and Jones made revisions in December 1978, and again in January 1979. The conversation which led to the January revisions included a discussion of the fact that Bell was "doing working drawings" and had to know the relationship of the town houses to a garage or carriage house at the rear of the property. In February 1979, using the final revised survey which Jones had provided in January, Bell made a drawing of eight town houses, gave it to Jones, and asked him to add "spot elevations" or topographical information to it. Jones did so, and also located catch basins for sewer connections on the drawing, which he admitted he would not have done for a mere title survey. Jones acknowledged in his testimony that the original notes he made in November 1978 contained information other than what would normally be required for closing.

Bell first became aware of the imprecise angle measurements in October 1979 when Greenhorne & O'Mara, the surveyors for the contractor, Furman Builders, Inc., notified Furman that the architectural drawings were inaccurate and that it was therefore impossible to locate the footings for the construction. The building lines were off by six inches over the forty-six foot length of the new building. The architectural plans, having been drawn to an accuracy of one-fourth of an inch, were rendered substantially inaccurate by this error. In March 1980 Bell informed Jones of the error in the angles, which eventually...