Bixenmann v. Dickinson Land Surveyors , 295 Neb. 40 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/28/2016 09:09 AM CDT
- 40 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 295 Neb. 40
Lawrence M. Bixenmann and Norma J.
Bixenmann, appellants, v. Dickinson
Land Surveyors, Inc., appellee.
___ N.W.2d ___
Filed October 28, 2016. No. S-15-695.
supplemental opinion
Appeal from the District Court for Douglas County: Leigh
A nn R etelsdorf, Judge. Supplemental opinion: Former opin-
ion modified. Motion for rehearing overruled.
James R. Welsh and Christopher Welsh, of Welsh & Welsh,
P.C., L.L.O., for appellants.
Albert M. Engles and Brock S.J. Hubert, of Engles, Ketcham,
Olson & Keith, P.C., and, on brief, James C. Boesen for
appellee.
Heavican, C.J., Wright, Connolly, Miller‑Lerman, Cassel,
Stacy, and K elch, JJ.
Per Curiam.
Case No. S‑15‑695 is before this court on the appellants’
motion for rehearing concerning our opinion in Bixenmann v.
Dickinson Land Surveyors.1 We overrule the motion, but we
modify the original opinion as follows:
1
Bixenmann v. Dickinson Land Surveyors, 294 Neb. 407, 882 N.W.2d 910
(2016).
- 41 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 295 Neb. 40
We withdraw syllabus points 9 and 10. In the section of the
opinion designated “ANALYSIS,”2 we withdraw the last two
paragraphs and substitute the following:
To address the Bixenmanns’ contention that the alleg-
edly negligent act involved ordinary negligence rather
than professional negligence, we recall basic principles
of law regarding professional acts or services. A profes-
sional act or service is one arising out of a vocation,
calling, occupation, or employment involving specialized
knowledge, labor, or skill, and the labor or skill involved
is predominantly mental or intellectual, rather than physi-
cal or manual. See Marx v. Hartford Acc. & Ind. Co., 183
Neb. 12, 157 N.W.2d 870 (1968). In determining whether
a particular act or service is professional in nature, the
court must look to the nature of the act or service itself
and the circumstances under which it was performed.
Churchill v. Columbus Comm. Hosp., 285 Neb. 759, 830
N.W.2d 53 (2013).
Two cases from this court provide guidance as to
whether an employee was engaged in professional serv­
ices. In Marx v. Hartford Acc. & Ind. Co., supra, a physi-
cian’s employee poured benzine instead of water into a
sterilization container, resulting in a fire. We concluded
that the act was not a professional service covered by
language of an insurance policy, because the boiling of
water for sterilization purposes was not an act requiring
any professional knowledge or training. See id. We stated
that “the negligent act performed here required no special
training or professional skill and in no sense constituted
the ‘rendering or failing to render professional services.’”
Id. at 14, 157 N.W.2d at 872. On the other hand, in
Swassing v. Baum, 195 Neb. 651, 655, 240 N.W.2d 24, 27
(1976), a blood‑typing test incorrectly reported a plain-
tiff’s blood type and we determined that the blood test
2
Id. at 411, 882 N.W.2d at 914.
- 42 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 295 Neb. 40
was a professional service “because the performance of
the blood test was an essential and integral part of the
rendition of professional services by [the physician] to
[the plaintiff].”
Whether an action alleges professional negligence or
ordinary negligence depends on whether the profession-
al’s alleged negligence required the exercise of profes-
sional judgment and skill. See Ambrose v. Saint Joseph’s
Hosp. of Atlanta, 325 Ga. App. 557, 754 S.E.2d 135
(2014). “‘A professional negligence claim calls into ques-
tion the conduct of the professional in his area of exper-
tise. Administrative, clerical, or routine acts demanding
no special expertise fall in the realm of simple negli-
gence.’” Id. at 559, 754 S.E.2d at 137. If the allegations
of the complaint involve the exercise of professional skill
and judgment within the professional’s area of expertise
and go to the propriety of professional decisions rather
than to the efficacy of the professional’s conduct in car-
rying out decisions previously made, the claim sounds in
professional negligence rather than ordinary negligence.
See Hamilton‑King v. HNTB Georgia, Inc., 311 Ga. App.
202, 715 S.E.2d 476 (2011).
Here, the act of placing the survey stakes in the ground
as part of the performance of surveying work qualifies
as a professional act or service. Although one could
argue that the act of driving a stake into the ground was
purely a manual skill and was not dependent on profes-
sional knowledge or skill, the setting of the stakes was
an integral part of the professional service supplied by
Dickinson. How high to set the stakes, how to mark the
stakes, and how long to leave the stakes in the ground
are matters of professional judgment. In order to know
whether Dickinson departed from the standard of care
under the circumstances, the finder of fact would need
to know what an ordinarily prudent land surveyor would
do under similar circumstances. We conclude that the act
- 43 -
Nebraska Supreme Court A dvance Sheets
295 Nebraska R eports
BIXENMANN v. DICKINSON LAND SURVEYORS
Cite as 295 Neb. 40
complained of qualified as a professional act and required
expert testimony to establish the standard of care.
In performing the professional services at issue, the
owner of Dickinson had one standard of care. He did
not owe one standard of care to his clients and a differ-
ent standard of care to everyone else. The same factual
predicate cannot give rise to two independent obligations
to exercise due care according to two different standards,
because “a defendant has only one duty, measured by
one standard of care, under any given circumstances.”
Flowers v. Torrance Mem. Hosp. Med. Ctr., 8 Cal. 4th
992, 1000, 884 P.2d 142, 146, 35 Cal. Rptr. 2d 685, 689
(1994) (emphasis in original). And because he was oper-
ating under the standard of care of a professional land
surveyor, expert testimony as to that standard of care
was needed.
We reject the Bixenmanns’ argument that the com-
mon knowledge exception applies. As noted, the com-
mon knowledge exception is limited to cases of extreme
and obvious misconduct. See Thone v. Regional West
Med. Ctr., 275 Neb. 238, 745 N.W.2d 898 (2008). This
is not such a case. To determine whether the owner of
Dickinson acted negligently, a jury would need to know
what a surveyor under similar circumstances would have
done and why the actions of the owner of Dickinson were
improper. This information is not within the comprehen-
sion of laypersons and would require expert testimony.
We agree with the district court that the common knowl-
edge exception to the requirement of expert testimony
does not apply.
The remainder of the opinion shall remain unmodified.
Former opinion modified.
Motion for rehearing overruled.
Connolly, J., not participating in the supplemental opinion.