Graves v. SE Downey Registered Land Surveyor

• Decision Date: 22 November 2005
• Parties: DAVID GRAVES et al. v. S.E. DOWNEY REGISTERED LAND SURVEYOR, P.A. et al.
• Court: Maine Supreme Court

2005 ME 116

885 A.2d 779

DAVID GRAVES et al. v. S.E. DOWNEY REGISTERED LAND SURVEYOR, P.A. et al.

Docket: Han-05-42.

Supreme Judicial Court of Maine.

Argued: October 18, 2005.

Decided: November 22, 2005.

Edmond J. Bearor, Esq., Timothy A. Pease, Esq. (orally) Rudman & Winchell, Bangor, ME, Attorneys for plaintiffs.

Peter R. Roay, Esq. (orally), Robert W. Laffin Jr., Esq. Roy, Beardsley, Williams & Grainger, LLC Ellsworth, ME, Attorneys for defendant.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, and LEVY, JJ.

CALKINS, J.

[¶1] S.E. Downey Registered Land Surveyor, P.A., Patrick Downey, and Stephen Downey (S.E. Downey) appeal from a judgment entered after a jury-waived trial in the Superior Court (Hancock County, Hjelm, J.) in favor of David and Katherine Graves. The Downeys assert that the court erred in finding that they were negligent in surveying the Graveses' land and that the negligence caused the damages.¹ We affirm the judgment.

I. FACTUAL BACKGROUND

[¶2] The Graveses own land in Bar Harbor that is bordered on the east by Acadia National Park and on the north by land controlled by the Park. They decided to divide the land into three lots. On their behalf, their contractor hired S.E. Downey to survey the land.

[¶3] S.E. Downey is a professional service corporation engaged in the business of surveying. Stephen Downey, a registered land surveyor, is the president and sole shareholder, and his son Patrick is an employee who, under the supervision of Stephen, did most of the work on the survey of the Graveses' land.

[¶4] After the survey was completed, the Graveses' contractor began construction of a house on the northern most lot. The construction included improving a road, installing a septic system, drilling a well, and providing power. During construction, a person from the National Park Service informed the Graveses that the house was north of their property line and was located on land of another where the Park had authority to prohibit construction. After unsuccessful negotiations with Park officials, the Graveses moved the house onto land south of the disputed northern boundary at a cost of $110,589.

[¶5] The Graveses then filed a complaint against S.E. Downey for breach of contract and professional negligence. The court heard from an expert witness who testified that S.E. Downey did not "exercise the skill, care and diligence required of members of the surveying profession" and did not "meet the standards of local practice exercised by reasonably prudent practitioners providing land surveying services in the Hancock County area." The expert listed deficiencies in the S.E. Downey survey including "[r]eliance on extrinsic evidence to the exclusion of the direct record evidence of the boundary." The expert also testified that he was baffled at S.E. Downey's conclusion that there was a gap between the southerly boundary of the Graveses' land and the northerly boundary of MDI High School when every deed in the chain of title stated they were contiguous. The expert concluded: "The monuments in the Graveses' deed are clear, they're controlling, and the determination reflected by the Downey survey is inconsistent with all of the rules of evidence and rules of construction as far as I can determine."

[¶6] The court also heard from Patrick and Stephen Downey, as well as other witnesses, and the court examined the deeds, maps, and other documents. The court reviewed the predecessor to the current Standards of Practice contained in the Department of Professional and Financial Regulation, Board of Licensure for Professional Land Surveyors.² In its findings the court recited several deficiencies in the Downey survey and discussed them at length.³ The court concluded:

The court has noted several material flaws in the survey work performed by Patrick Downey and directly supervised by Stephen Downey, which work was then incorporated into the survey opinion attributable to both Patrick and Stephen Downey. The most significant of these problems was the failure to use the northern boundary of the Tracy property as the direct means to establish the location of the southerly line of the [Graveses'] property. This constituted a deviation from the standard of care and conduct that an ordinarily competent surveyor is expected to meet. It is also a breach of at least one of the standards of care set out in the rules that govern the quality of surveyors' work. [citation omitted] (requiring a surveyor to conduct a careful evaluation of the subject before expressing a professional opinion).

[¶7] The court also found that S.E. Downey's conduct was the legal cause for the Graveses' damages. The court stated:

Although the [Downeys] argue that the [Graveses] acted prematurely when they moved the house, the evidence establishes that the Park gave them no choice. More importantly, the evidence establishes that, due to the flawed information proved by the [Downeys], the house in fact was built on property that the [Graveses] did not own.

[¶8] The court granted judgment for the Graveses in the amount of $110,589, plus interest and costs. S.E. Downey appeals, primarily claiming that the evidence was not sufficient for a finding of negligence or causation.

II. DISCUSSION

[¶9] Whether a party owes a duty of care is a question of law, while breach of the duty and causation are questions of fact. Welch v. McCarthy, 677 A.2d 1066, 1069 (Me. 1996). We review questions of law de novo and questions of fact for clear error. Wells v. Powers, 2005 ME 62, ¶ 2, 873 A.2d 361, 363. Because S.E. Downey did not bear the burden of proof at trial on the issues of breach and causation, we review the evidence, and inferences that may be drawn therefrom, in the light most favorable to the trial court's judgment to determine whether competent evidence supports the judgment. See Pratt v. Spaulding, 2003 ME 56, ¶¶ 10-13, 822 A.2d 1183, 1186

.

[¶10] We have not had the occasion to state the standard of care owed by a land surveyor.⁴ Medical and legal malpractice actions are analyzed according to tort law principles instead of contract law, and in those cases liability is predicated on "'deviation from the professional standard of care.'" Johnson v. Carleton, 2001 ME 12, ¶ 5 n.3, 765 A.2d 571, 573 (quoting Woolley v. Henderson, 418 A.2d 1123, 1135 (Me. 1980)). We have said that "[s]tandards for demonstrating the elements of professional negligence do not differ from profession to profession." Merriam v. Wanger, 2000 ME 159, ¶ 17, 757 A.2d 778, 782.⁵ The plaintiff in a professional negligence action must establish the appropriate standard of care, demonstrate that the defendant deviated from that standard, and prove that the deviation caused the plaintiff's damages. Forbes v. Osteopathic Hosp. of Me., Inc., 552 A.2d 16, 17 (Me. 1988). In medical malpractice cases the appropriate standard is the care that an ordinarily competent physician would provide under like circumstances. McLaughlin v. Sy, 589 A.2d 448, 452 (Me. 1991). Similarly, the appropriate standard of care in legal malpractice cases is the skill, prudence, and diligence that would be used by attorneys of ordinary skill and capacity. Schneider v. Richardson, 411 A.2d 656, 657 (Me. 1979).

[¶11] The duty of care that the Superior Court imposed in this case required the Graveses to demonstrate that S.E. Downey's work on the survey was below that of an ordinarily and reasonably competent land surveyor in like circumstances. Courts in other jurisdictions have articulated the duty of care of land surveyors in similar ways. For example, in West Virginia a surveyor is held to the standard of care that a "reasonably prudent surveyor" would have...