Crockett v. Crothers

• Decision Date: 17 January 1972
• Docket Number: No. 173,173
• Citation: 285 A.2d 612,264 Md. 222
• Parties: James E. CROCKETT t/a Crockett Associates v. John CROTHERS et al.
• Court: Maryland Court of Appeals

Page 222

264 Md. 222

285 A.2d 612

James E. CROCKETT t/a Crockett Associates v. John CROTHERS et al.

No. 173.

Court of Appeals of Maryland.

Jan. 17, 1972.

William B. Somerville, Baltimore (Douglas G. Worrall and Smith, Somerville & Case, Baltimore, on the brief), for appellant.

William B. Calvert, Elkton (Donaldson C. Cole, Jr., Rollins & Calvert and O. Robert Lidums, Elkton, on the brief), for appellees.

Argued before HAMMOND, C. J., and McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

HAMMOND, Chief Judge.

This tripartite appellate confrontation is between householders (plaintiffs and appellees) into whose home came water under pressure after a water main was broken by a contractor, Cullen (a defendant found liable, but not an appellant), while constructing a sewerage system for the Town of North East according to plans and specifications which did not reveal that water main, prepared by an engineer, Crockett (a defendant also found liable, and the appellant), under a contract with the Cecil County Metropolitan Commission.

The jury answered yes to both parts of an issue that read '(a) Was the engineer, Mr. Crockett, negligent in not showing the ruptured water line on the plans he drew up?

'(b) If 'yes' was his negligence a proximate cause of the damages?'

Crockett argues feelingly that he should have prevailed below as a matter of law, on his motion for a directed verdict or on his motion for judgment n. o. v. because there was no evidence (a) of the standard of care an engineer such as he should have followed; (b) that he failed to exercise the requisite care, or (c) that his failure, assuming it to have been shown, was a proximate cause of the harm that occurred. He makes the subsidiary contentions that the trial court failed to properly instruct the jury as to the standard of care to be exercised and whether that standard was met; that the issue submitted to the jury was prejudicially simple and that the trial court wrongly entered judgment for Cullen on the cross-claim of Crockett for indemnity.

Even as all of us fail to see ourselves as others see us, the image appellants often have of their cause and their contentions is not the image the reviewing court sees. That is true here: We find no merit in any of Crockett's claims and will affirm the judgment he appealed from.

In an action against a professional man for malpractice, the plaintiff bears the burden of overcoming the presumption that due skill and care were used. Bettigole v. Diener, 210 Md. 537, 541, 124 A.2d 265; Lane v. Calvert, 215 Md. 457, 462, 138 A.2d 902. Although there may be instances in which the negligence is so gross or that which was done so obviously improper or unskillful as to obviate the need for probative testimony as to the applicable standard of care, Fink v. Steele, 166 Md. 354, 361, 171 A. 49 (and here we proceed on the assumption that this is not such a case), generaly there must be produced expert testimony from which the trier of fact can determine the standard of skill and care ordinarily exercised by a professional man of the kind involved in the geographical area involved and that the defendant failed to gratify these standards. Johns Hopkins Hospital v. Genda, 255 Md. 616, 620, 258 A.2d 595; Telak v. Maszczenski, 248 Md. 476, 491, 237 A.2d 434; Tempchin v. Sampson, 262 Md. 156, 277 A.2d 67.

There was the requisite testimony in the present case, largely from Crockett himself. Other testimony had shown that in digging a sewer line the contractor follows the engineer's plans both as to direction and as to grade, and that the water main that the contractor broke was not on the plans prepared by Crockett, although his aim and general practice were to find and show on the plans all obstructions in the path of the line. Crockett testified that normal practice in preparing plans was to utilize aerial photographs supplemented by a field survey (but no physical subsurface investigation) so as to determine all that could be seen, including first floor and basement elevations of houses. He said:

'We talk to all the utilities that conceivably have utilities in the area, such as the Conowingo Power Company, AT & T, the Telephone Company, the town if they have water and/or sewerage plants. We exhaust all possibilities. We talk to the State Roads Commission, because they own the streets, some of the streets, that go through the town. Sometimes their plans show underground obstructions or surface obstructions that may not show up in an aerial photograph, or normal field survey. (Emphasis added.)

'We do a fairly through job of researching, the purpose for which is as a guide to the contractor. We feel that the more we can show him the lower he will bid the job.

'Q. Are the things you just described the things that are ordinarily done by engineers in preparing plans? A. Yes, sir. This is very normal practice.'

It was shown that Crockett knew that several years earlier Whitman Requardt & Associates, well known and long established engineers, had prepared plans for water and sewer lines for the town of North East and that these plans showed the water main that was broken. Crockett said that he, apparently in...