Carr Smith & Associates, Inc. v. Fence Masters, Inc.

Decision Date01 September 1987
Docket NumberNo. 86-3188,86-3188
Citation12 Fla. L. Weekly 2114,512 So.2d 1027
Parties12 Fla. L. Weekly 2114 CARR SMITH & ASSOCIATES, INC., Appellant, v. FENCE MASTERS, INC., Donald C. Ernst and C. Oliver Troutman, Donald O. McIntosh and Associates, Appellees.
CourtFlorida District Court of Appeals

Marlow, Shofi, Connell, DeMahy, Valerius, Abrams, Lowe & Adler and Joseph Lowe and Claudia B. Greenberg, Miami, for appellant.

Morgan, Lewis & Bockius and John A. Bussian and Gary S. Koenigsberg, Kubicki, Bradley, Draper, Gallagher & McGrane and Gail L. Kniskern, Miami, for appellees.

Before SCHWARTZ, C.J., and HENDRY and NESBITT, JJ.

PER CURIAM.

Florida Packaging Service, Inc. (Florida Packaging) entered into a contract with Donald Ernst and C. Oliver Troutman for the sale of a parcel of land. Florida Packaging agreed to provide Ernst and Troutman with a survey of the land. To this end, Florida Packaging hired Carr Smith & Associates, Inc. (Smith). Florida Packaging then furnished Ernst and Troutman with the survey that had been prepared by Smith. After Ernst and Troutman purchased the property, they leased it to Fence Masters, Inc. (Fence Masters). Fence Masters subsequently hired another surveyor in preparation of the construction of a structure and a surrounding fence on the property. This surveyor relied on the survey prepared by Smith instead of doing an independent survey.

After Fence Masters completed its construction, Florida East Coast Railway Company, the owner of adjoining property, sued Fence Masters, Ernst and Troutman for encroachment upon the railway's property. Fence Masters, Ernst and Troutman then filed a third party action against Smith and the subsequent surveyor. The trial court granted the railway company's motion for final summary judgment against Fence Masters, Ernst and Troutman, who in turn filed a motion for summary judgment against the surveyors. The trial court granted a partial summary judgment against Smith on the issue of liability. Smith then filed this appeal of the non-final order.

Smith contends that the trial court erred in entering partial summary judgment on the issue of liability since there remain disputed issues of fact. We agree.

At the outset we note that surveyors, like other professionals, may be held liable for their negligent acts. See, Cristich v. Allen Eng'g, Inc., 458 So.2d 76 (Fla. 5th DCA 1984); Vogel v. Allen, 443 So.2d 368 (Fla. 5th DCA 1983); accord Kent v. Bartlett, 49 Cal.App.3d 724, 122 Cal.Rptr. 615 (1975); Hutchinson v. Dubeau, 161 Ga.App. 65, 289 S.E.2d 4 (1982); Rozny v. Marnul, 43 Ill.2d 54, 250 N.E.2d 656 (1969); Essex v. Ryan, 446 N.E.2d 368 (Ind.Ct.App.1983); Annotation, Surveyor's Liability for Mistake in, or Misrepresentation as to Accuracy of Survey of Real Property, 35 A.L.R.3d 504 (1971); cf. Campbell v. Bellman, 293 So.2d 795 (Fla. 3d DCA 1974) (seller may be held liable to buyer for providing buyer with negligently prepared survey where seller employs surveyor as condition of sale). Smith contends, however, that it owed no duty either to Ernst and Troutman or Fence Masters because it was hired by Florida Packaging.

Surveyors may be held liable not only to their employers but also, where the surveyor "knows, or should know, that his customer wants the [survey] for the use of a prospective purchaser, and the prospect purchases the land relying on the" survey, the surveyor, like the abstracter, may be held liable to the purchaser and "others involved in the transaction through their relationship to the purchaser--such as ... tenants." First American Title Ins. Co. v. First Title Serv. Co., 457 So.2d 467, 473 (Fla.1984); cf. Cristich, 458 So.2d at 79 (surveyors subject to same standard of care with regard to third party liability as abstracters); 458 So.2d at 80-81 (Sharp, J., dissenting) (surveyor's liability depends upon the existence of a legal duty, not privity); Essex, 446 N.E.2d at 368 (treating surveyors the same as abstracters for purposes of determining third party liability). Smith contends that it did not know, nor should it have known, that the survey would be used for the sale of the land, and disputes the facts which would establish such knowledge. Furthermore, there is no evidence that Fence Masters was involved in a tenancy relationship with the purchasers of the land, Ernst and Troutman, at the time of the transaction, as would be required to establish the existence of a...

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3 cases
  • Kaufman v. Mutual of Omaha Ins. Co.
    • United States
    • Florida District Court of Appeals
    • 31 Julio 1996
    ...party in this case to demonstrate the nonexistence of any disputed issue of material fact. See Carr Smith & Associates, Inc. v. Fence Masters, Inc., 512 So.2d 1027, 1028 (Fla. 3d DCA 1987). Further, on a motion for summary judgment the record must be read in the light most favorable to the ......
  • Rocks v. McLaughlin Eng'g Co.
    • United States
    • Florida District Court of Appeals
    • 6 Enero 2011
    ...years before it added the college degree requirement. Common law authority is in the same vein. See Carr Smith & Assoc. Inc. v. Fence Masters, Inc., 512 So.2d 1027, 1028 (Fla. 3d DCA 1987) (holding " surveyors, like other professionals may be held liable for their negligent acts"). To like ......
  • MODRICH v. BROWARD TITLE CO.
    • United States
    • Florida District Court of Appeals
    • 27 Junio 2001
    ...Title Insurance Co. v. First Title Service Co. of the Florida Keys Inc., 457 So.2d 467 (Fla.1984), and Carr Smith & Assocs., Inc. v. Fence Masters, Inc., 512 So.2d 1027 (Fla. 3d DCA 1987). Modrich alleges that P & L Surveyors had a duty to Modrich and breached that duty by failing to notify......

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