California Surveyors Forums

DWoolley wrote:

William Magee wrote:Dave,

Pointing back, please take a more careful read of what was said. It was prefaced with "The standard of care for the individual goes far beyond just the care taken for project tasks". The implication being that the ensuing discussion was focusing beyond the narrow focus of standard of care for surveying tasks. It went beyond that narrow definition to also encompass the standard of care in all aspects of conduct as a professional. The discussion being borne from the shared concern of not only how professionals conduct their mapping and boundary work, but also how they conduct themselves as professionals with each other and in the public's eye. With that said, the basis of that concern is in direct relation to the following:

DWoolley wrote:
A few years ago they thought I should be expelled - even though it was the OC chapter's fiduciary business - for questioning the CLSA taxes (not that I am keeping score...every day).

DWoolley

Being as you are publicly making statements of what you claim to be the basis of certain events, would it not be prudent to allow for the opening of the sealed minutes from the culminating formal proceedings of said events so as to allow the readers to understand the full and true context of the basis of those proceedings?

If the basis of the proceedings are as what you say is true, then agreeing to unseal the minutes would only bolster your claim.

On the other hand, if the basis of those proceedings were something else, something far contrary to your claim, then perhaps "they" might consider your above statement to be, well, I'll let the informed fill in the blank with the proper the legal term.

Saved your post before you thought better of it and modified or deleted it - as you have been known to do on occasion.

As to your explanation of "The standard of care for the individual goes far beyond just the care taken for project tasks". This makes no sense to me. Standard of care is a legal term related to negligence. Please try again and provide a reference for clarity.

Magee, your attempts to create intrigue have once again fallen flat. You may not have realized it, but I am not bound by any secret pacts or closed meeting protocols. Additionally, I believe you know this, I have no control over any "sealed minutes" - which had not occurred to me prior to your statements. Should any "sealed meeting minutes" exist I would imagine it should be a simple matter of having the Board of Directors "unseal" them. I encourage you to make the motion or to begin the process at the next Board meeting. I would support such a motion. There is nothing in those minutes - if they exist - that cause me any grief. The lies have been exposed and the truths have ripened. I have always walked through the front door and stated my name. However, we both know you will not do it - you prefer to hide behind a pseudonym.

Now for some real intrigue...I have something neither you or any other attendee at the closed meetings has - a complete copy of the binder presented at the meeting by Alcorn. Actually, I have two complete copies and again, I am not bound by any closed meeting secrecy. As you may recall, the flavor the day was to have me leave the room before you would talk about me. There was no pseudonym to hide behind in a live meeting.

Right about now is when you usually crawdad away.

We have hijacked this thread. Start a new thread with this conversation and I will gladly play.

DWoolley, Dave Woolley, PLS 7304 (see that Magee, match me).

Copied so as you don’t edit or delete as you yourself have been known to do.
A separate thread would be productive. As to the original topic, I do understand why some would not want to explore a broader meaning that delves into including discussion of the standard of care for professional conduct beyond that of project tasks. It might run in a direction contrary their ingrained traits.

.

It is obvious a seminar is needed to discuss this topic. There is clearly a lot of confusion and many of the opinions I have seen are not based on the proper application of the law. It must be remembered that the State Board cannot define the Standard of Care. The law defines the Standard of Care and that is where it is tested. Unless a representative from the State Board can establish themselves as an expert, their opinion is meritless. It is the same with everyone who offers an opinion on this topic.

Negligence is defined in the State of California Civil Jury Instructions, Section 600. Standard of Care. These, incidentally, were revised in November 2017.


"A Professional Engineer is negligent if he/she fails to use the skill and care that a reasonably careful professional engineer would have used in similar circumstances. This is the level of skill, knowledge, and care is sometimes referred to as ‘the standard of care.” You must determine the level and care that a reasonably careful Professional Engineer would use in similar circumstances based only on the testimony of the expert witnesses, including the defendant, who have testified in this case."

The instructions also note the following:

• General Duty to Exercise Due Care. Civil Code section 1714(a).

• “Although it is true that some exceptions have been made to the general
principle that a person is liable for injuries caused by his failure to exercise
reasonable care in the circumstances, it is clear that in the absence of statutory
provision declaring an exception to the fundamental principle enunciated by
section 1714 of the Civil Code, no such exception should be made unless
clearly supported by public policy.” (Rowland v. Christian (1968) 69 Cal.2d
108, 112 [70 Cal.Rptr. 97, 443 P.2d 561].)

• “ ‘The elements of a cause of action for negligence are well established. They
are “(a) a legal duty to use due care; (b) a breach of such legal duty; [and] (c)
the breach as the proximate or legal cause of the resulting injury.” ’ ” (Ladd v.
County of San Mateo (1996) 12 Cal.4th 913, 917 [50 Cal.Rptr.2d 309, 911 P.2d
496].)

• “The first element, duty, ‘may be imposed by law, be assumed by the defendant,
or exist by virtue of a special relationship.’ ” (Doe v. United States Youth
Soccer Assn., Inc. (2017) 8 Cal.App.5th 1118, 1128 [214 Cal.Rptr.3d 552].)

• “[T]he existence of a duty is a question of law for the court.” (Ky. Fried
Chicken of Cal. v. Superior Court (1997) 14 Cal.4th 814, 819 [59 Cal.Rptr.2d
756, 927 P.2d 1260].)

• “The formulation of the standard of care is a question of law for the court.
Once the court has formulated the standard, its application to the facts of the
case is a task for the trier of fact if reasonable minds might differ as to whether
a party’s conduct has conformed to the standard.” (Ramirez v. Plough, Inc
(1993) 6 Cal.4th 539, 546 [25 Cal.Rptr.2d 97, 863 P.2d 167], internal citations
omitted.)

• The California Supreme Court has stated: “Because application of [due care] is
inherently situational, the amount of care deemed reasonable in any particular
case will vary, while at the same time the standard of conduct itself remains
constant, i.e., due care commensurate with the risk posed by the conduct taking
into consideration all relevant circumstances. [Citations].” (Flowers v. Torrance
Memorial Hospital Medical Center (1994) 8 Cal.4th 992, 997 [35 Cal.Rptr.2d
685, 884 P.2d 142]; see also Tucker v. Lombardo (1956) 47 Cal.2d 457, 464
[303 P.2d 1041].)

• The proper conduct of a reasonable person in a particular situation may become
settled by judicial decision or may be established by statute or administrative
regulation. (Ramirez, supra, 6 Cal.4th at p. 547.) (See CACI Nos. 418 to 421
on negligence per se.)

• Negligence can be found in the doing of an act, as well as in the failure to do
an act. (Rest.2d Torts, § 284.)

• “Plaintiffs’ argument that CACI No. 600 altered their burden of proof is
misguided in that it assumes that a ‘professional’ standard of care is inherently
different than the standard in ordinary negligence cases. It is not. ‘With respect
to professionals, their specialized education and training do not serve to impose
an increased duty of care but rather are considered additional “circumstances’
relevant to an overall assessment of what constitutes “ordinary prudence” in a
particular situation.’ ‘Since the standard of care remains constant in terms of
“ordinary prudence,” it is clear that denominating a cause of action as one for
“professional negligence” does not transmute its underlying character. For
substantive purposes, it merely serves to establish the basis by which “ordinary
prudence” will be calculated and the defendant’s conduct evaluated.’ ” (LAOSD
Asbestos Cases (2016) 5 Cal.App.5th 1022, 1050 [211 Cal.Rptr.3d 261], internal
citation omitted.)

This article just came out, written byDrinker Biddle & Reath LLP - Alan J. Lazarus

_______________________________________________________________________________________________________________________


In Kim v. Toyota Motor Corp., No. S232754 (August 27, 2018) the California Supreme Court broke with 40+ years of intermediate court of appeal precedents barring manufacturers from using evidence of their compliance with industry custom and practice to prove their design was not defective. Rather, the Court held, such evidence is no longer categorically inadmissible, but neither is it categorically admissible. Admissibility depends on the nature of the evidence and the purpose for which it is offered.

The new, nuanced (to say the least) treatment of custom evidence in risk-benefit design defect cases is a welcome, and somewhat surprising, statement of flexibility and realism in product liability cases– two characteristics that animated the Court’s reasoning.

Prior to Kim, it was settled in the lower courts (with one exception, Howard v. Omni Hotels Mgmt. Corp., 203 Cal.App.4th 403 (2012)) that custom evidence is inadmissible in a strict liability case when offered by a defendant. The rule flowed from two related original premises of California strict products liability. First, the now discredited notion that California law must erect and maintain an impermeable barrier between the concepts of negligence and strict liability. That wall has been crumbling for decades, though its morbidity is frequently ignored, and it is occasionally summoned to justify a ruling. Second, the notion that the unerring focus in a strict liability case must be on the condition of the product, not the reasonableness of the manufacturer’s design conduct. That distinction is somewhat whimsical, but durable.

Kim recognizes the infirmity of the strict liability-negligence barrier, noting that there is not much difference between risk-benefit weighing and “a traditional negligence inquiry.” And the Court considers the product-conduct distinction still viable, but too simplistic to bar categorically evidence relevant to evaluation of the challenged design.

The claim in Kim was that the failure to include Vehicle Stability Control (VSC) as standard equipment in a 2005 Toyota Tundra light truck was a design defect under the risk-benefit test. Toyota had offered VSC as an option only, though it had been standard equipment on some more expensive vehicles. Plaintiffs unsuccessfully sought in limine to exclude industry custom evidence. At trial, a Toyota product planning witness testified that no other light trucks on the market in 2005 offered VSC as standard or optional equipment. Toyota offered it as an option because (1) truck buyers were price-sensitive and unenthusiastic about VSC, and (2) consistent with industry practice, Toyota would “phase-in” expensive new technology by offering it initially as an option.

Toyota prevailed at trial and the Court of Appeal affirmed. The Supreme Court accepted discretionary review solely to determine whether admission of the custom evidence was reversible error, and affirmed, holding that the custom evidence was properly admitted.

Preliminarily, the Court distinguished industry custom evidence from two adjacent concepts, which were not at issue. One was evidence of compliance with Federal Motor Vehicle Safety Standards, the regulations governing vehicle design. The other was “state of the art” evidence, proof of what is technologically achievable or “what can be done.” Industry custom, in contrast, deals with “what is done” within the relevant industry.

The Court found that there was no real question regarding the relevance of two particular types of industry custom evidence, industry technical standards and “industry experience.” Assuming the technical standards are based on valid research and testing, they are relevant to evaluating issues of “safety, feasibility, cost and functionality.”

“Industry experience” is evidence that competitors had explored but abandoned the alternative design for risk-benefit oriented reasons. The Court recognized its obvious relevance to the jury’s own risk-benefit consideration.

The core issue for the Court was “true industry custom evidence: evidence that ‘nobody does it,’ that ‘every body does it,’ or that the defendant’s product is no more dangerous than others on the market.” In holding such evidence admissible depending on the circumstances, the Court first noted that it saw no material difference between this evidence and evidence of industry technical standards. Both “illuminate” the risk-benefit design challenges recognized in Barker v. Lull Eng’g Co., 20 Cal.3d 413, 418 (1978) – “the relative complexity of design decisions and the trade-offs that are frequently required in the adoption of alternative designs.”

The Court also suggested a “good for the goose, good for the gander” rationale, noting repeatedly that plaintiffs themselves had introduced custom evidence to argue that (1) Toyota had offered VSC as an option solely to gain a competitive advantage, and (2) the reasons VSC was standard in many SUVs dictated the same decision in light trucks. The Court reasoned that industry custom evidence is a “two-way street.” Where the defendant’s design is an outlier, or fails to conform to industry standards or custom, plaintiffs readily exploit that fact as evidence of a defect. Similarly, the defendant should be able to show that the proposed alternative design is not standard, to support an inference that its omission does not compromise safety. At least in some cases, the competitors’ design choices might reflect their own independent risk-benefit balancing “and thus shed some light on the appropriate balance of safety risks and benefits.”

The Court stopped short of giving any concrete guidance on when the evidence would not be admissible. It noted generally, “in some cases the relationship between industry design practices and consideration of the Barker [risk-benefit] factors may be sufficiently attenuated to warrant exclusion of the evidence.” It also cautioned that such evidence “may not … be introduced simply for the purpose of showing the manufacturer was acting no worse than its competitors,” i.e., acting unreasonably. These two inadmissibility shoals are hardly Scylla and Charybdis; able counsel should be able to navigate safely between them.

The Court also reminded that the evidence could be excluded if overly prejudicial, or admitted subject to a limiting instruction. And the Court reiterated that the evidence cannot be dispositive.

The prior rule barring custom and practice evidence, like many other aspects of California products liability law (for example, much of the lower courts’ consumer expectations jurisprudence), often injected an element of the surreal. In the modern, vigorously competitive marketplace, safety sells, and the independent reluctance of a large swath of the industry to adopt a particular design feature or technology does indeed “shed light” on the wisdom of the design. It’s a step forward into the real world for the California courts to finally recognize that and allow juries to take industry design practice into consideration, for whatever it happens to be worth.

Expert Witness

n. a person who is a specialist in a subject, often technical, who may present his/her expert opinion without having been a witness to any occurrence relating to the lawsuit or criminal case. It is an exception to the rule against giving an opinion in trial, provided that the expert is qualified by evidence of his/her expertise, training and special knowledge. If the expertise is challenged, the attorney for the party calling the "expert" must make a showing of the necessary background through questions in court, and the trial judge has discretion to qualify the witness or rule he/she is not an expert, or is an expert on limited subjects.

"A qualified expert needs to be able to present reliable and credible testimony in order to help the jury better understand the facts at issue. But before the expert delves into the substance of their testimony, the first roadblock must be passed – voir dire. The voir dire process refers to testimony that establishes an expert’s qualifications. Likewise, a voir dire cross-examination by opposing counsel aims to discredit and preclude the expert from testifying. Failing to properly qualify an expert can thwart the testimony before it even begins. So it is vital to establish that the expert is competent in the subject matter at issue."

See: https://www.theexpertinstitute.com/qual ... need-know/

From the previous treatise:

Qualifying Your Expert: What to Ask

A successful voir dire is dependent upon the specific expertise of the witness, and there are many ways in which one’s qualifications can be established. They may be qualified through “knowledge, skill, practical experience, training, education, or a combination of these factors”. But there is one common denominator – they must be competent in the subject matter. As such, the voir dire questions should reflect that. However, the voir dire should not rely exclusively on the expert’s resume or curriculum vitae. A perfunctory recitation of the witness’ education and work accomplishments may provide useful background information; it may not necessarily paint the whole picture of the expert’s qualifications. After the basic questioning of the expert’s occupation, place of employment, position, and education, a voir dire should explore more detailed aspects of the expert’s specialty, such as:

Specialized knowledge of any sub-topics within the field;

Any additional degrees, licenses, or training beyond the minimum education required;

Specific duties and responsibilities in current position;

Number of years working in the particular practice area, and a breakdown of each different position and what it entailed;

Any teaching experience within the specific practice area;

Any publications related to the subject matter;

The number of cases involving the subject matter that the expert has handled throughout his career;

The testing and experimenting methods used in the field; and

The means of which an analysis is conducted and a conclusion is reached.

BASIS AND FUNCTION OF EXPERT WITNESS
The expert witness’ existence is created and perpetuated by the legal system. But for the Rules of Evidence, consulting and testimonial evidence would not exist. A simplified restatement of Federal Rules 701–706 (Figure 1) is that a qualified expert may give his opinion to help the court understand evidence, or to establish a fact in issue. States that have not adopted the Federal Rules of Evidence generally have similar rules or statutes governing expert witness qualifications and testimony.

The expert witness performs two primary functions: 1) the scientific function — collecting, testing, and evaluating evidence and forming an opinion as to that evidence;and 2) the forensic function — communicating that opinion and its basisto the judge and jury. A general rule of evidence is that witnesses may onlytestify to what they have personally observed or encountered through their five senses.

SIMPLIFIED RESTATEMENT OF FEDERAL RULES 701–706

Rule Explanation

701 Lay Opinion: If the witness is not an expert, opinion is admissible only when it is 1) rationally based on perceptions, and 2) helpful to the trier of fact.

702 Testimony by Experts: Expert opinions may be admissible if 1) the testimony assists the trier of fact, and 2) the witness is qualified as an expert.

703 Bases of Opinion Testimony by Experts: Expert opinion may be based on facts or data 1) actually seen or heard by the expert or 2) communicated to him at or before the hearing. Admissibility of the facts or data is not essential if typically relied on in this field.

704 Opinion on Ultimate Issue: An expert may express an opinion which 1) addresses an ultimate issue of fact, but opinions or inferences regarding the mental state of the accused are reserved for the trier of fact, and 2) when that mental state is an element of the crime charged or a defense to that crime.

705 Disclosure of Facts or Data Underlying Expert Opinion: An expert need not provide facts supporting the reason for his opinion unless 1) the court so requires, or 2) asked on cross examination.

706 Court Appointed Experts: The court 1) may issue an order to show cause as to why an expert should not be appointed, 2) may request nominations of an expert by parties, 3) may appoint an expert whether or not the parties agree to that expert, if the expert consents. The witness shall be informed of his duties 1) in writing, 2) a copy of which is filed with the court. The witness shall communicate his findings to the parties, and 1) may be deposed, 2) may be called to testify, 3) may be cross examined, and 3) shall be paid as the court directs. The jury’s knowledge of the court appointment is left to the discretion of the court. This rule does not limit parties from calling other experts.

A consulting expert is a person who has been retained or specifically employed in anticipation of litigation or preparation of trial, but who will not be called at trial. The identity, theories, mental impressions, litigation plans, and opinions of a consultant are work product and protected by the attorney-client privilege.5

A testimonial expert is retained for purposes of testifying at trial. The confidentiality privilege is waived and all materials, notes, reports, and opinions must be produced through applicable discovery proceedings. If an expert relies on work product or hearsay as a basis for their opinion, that material must be disclosed and produced through discovery.

STANDARD OF REVIEW: “DAUBERT TRILOGY”
Whether a witness is qualified as an expert can only be determined by comparing the area in which the witness has expertise with the subject matter of the witness’ testimony.The standard of review and criteria for expert witness testimony has been codified by three cases, commonly known as the “Daubert Trilogy.” These cases consist of Daubert v. Merrell Dow Pharmaceuticals Inc.,6 General Electric v.Joiner,7 and Kumho Tire Co., Ltd. v. Carmichael.8

The Daubert standard of for evaluating scientific evidence is based on reliabilityand the Daubert test is relevance for “good science.” The reliability prong of scientific evidence is:
1) whether the scientific theory can be (and has been) tested;
2) whether the scientific theory has been subjected to peer review and publication;
3) the known or potential rate of error of the scientific technique; and
4) whether the theory has received “general acceptance” in the scientific community.9 In evaluating the second prong (relevance), trial courts must consider whether the particular reasoning or methodology offered can be properly applied to the facts in issue, as determined by “fit.” There must be a valid scientific connection and basis to the pertinent inquiry.10

General Electric v. Joiner7 upheld the trial court’s “gatekeeping” function, annunciated in Daubert, to determine the admissibility of expert witness testimony absent an abuse of judicial discretion.

Kumho Tire Co., Ltd. v. Carmichael18 held Daubert applies to all expert evidence and testimony regardless if it is “scientific” in nature. One of the underlying assumptions is that juries tend to believe almost anything the professed expert says, therefore, judges “should protect impressionable jurors from experts who lack objective credibility.”11 Accordingly, a judicial “gatekeeping” function under Daubert is to limit abuses of FRE 702.

Government employees are treated with great skepticism by the courts and me, personally. The mere fact that someone is employed by a government agency does not make them an expert. What it means is they work for a government agency and nothing more. There are many cases addressing this situation.

"The imprimatur of a governmental agency, laboratory, office, or title does not automatically make either the results or witness’ testimony inherently trustworthy, credible, and reliable. A shocking and explosive example of inadequacies, misrepresentations, flawed science, doctored laboratory reports, posed evidence, woeful investigative work, and false testimony was the epitomized by U.S. Department of Justice, Office of the Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases, April, 1997. The principle findings and recommendations of the Justice Department’s report addressed “significant instances of testimonial errors, substandard analytical work, and deficient practices” including policies by the Federal Bureau of Investigation Laboratory."

Rule 702. Testimony by Expert Witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;

(b) the testimony is based on sufficient facts or data;

(c) the testimony is the product of reliable principles and methods; and

(d) the expert has reliably applied the principles and methods to the facts of the case.

Notes
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1937; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.)

Notes of Advisory Committee on Proposed Rules

An intelligent evaluation of facts is often difficult or impossible without the application of some scientific, technical, or other specialized knowledge. The most common source of this knowledge is the expert witness, although there are other techniques for supplying it.

Most of the literature assumes that experts testify only in the form of opinions. The assumption is logically unfounded. The rule accordingly recognizes that an expert on the stand may give a dissertation or exposition of scientific or other principles relevant to the case, leaving the trier of fact to apply them to the facts. Since much of the criticism of expert testimony has centered upon the hypothetical question, it seems wise to recognize that opinions are not indispensable and to encourage the use of expert testimony in non-opinion form when counsel believes the trier can itself draw the requisite inference. The use of opinions is not abolished by the rule, however. It will continue to be permissible for the experts to take the further step of suggesting the inference which should be drawn from applying the specialized knowledge to the facts. See Rules 703 to 705.

Whether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier. “There is no more certain test for determining when experts may be used than the common sense inquiry whether the untrained layman would be qualified to determine intelligently and to the best possible degree the particular issue without enlightenment from those having a specialized understanding of the subject involved in the dispute.” Ladd, Expert Testimony, 5 Vand.L.Rev. 414, 418 (1952). When opinions are excluded, it is because they are unhelpful and therefore superfluous and a waste of time. 7 Wigmore §1918.

The rule is broadly phrased. The fields of knowledge which may be drawn upon are not limited merely to the “scientific” and “technical” but extend to all “specialized” knowledge. Similarly, the expert is viewed, not in a narrow sense, but as a person qualified by “knowledge, skill, experience, training or education.” Thus within the scope of the rule are not only experts in the strictest sense of the word, e.g., physicians, physicists, and architects, but also the large group sometimes called “skilled” witnesses, such as bankers or landowners testifying to land values.

Kind of a one sided conversation, no?

In what regard? Which conversation? There are several going on!

DWoolley wrote:“

Standard of Care

Back to the Original Post concerning the Standard of Care. The dishonest sectors of the community would like nothing more than to paint their poor practice as being “local” by misusing the term local as it applies to determining a standard of care. Local, as it relates to a standard of care, does not mean “Everyone does it in this geographic region, so that makes it our standard of care”. False. The standard of care is not a county by county or a NorCal/SoCal difference and has little to do with individual County Surveyors. The idea of creating differing standards of care is largely due to protectionism of the substandard practitioners in a geographic region. It will not wash. Forum readers, watch were the standard of care discussion originates geographically and then, review a couple of the locally filed maps in that county. I believe you will see why a differing standard of care is a topic in that geographic region.

A Judge in Wyoming said it Best:

“Courts are more likely to look for state or national standards. If the professional organizations have not established “standards of practice,” the courts are more inclined to establish their own than allow a small number of local co-professionals to collusively protect each other”.
Banner vs. Town of Dayton, 474 P. 2d 300 (Wyo. 1970)


Define the Standard

Ask yourself, does your boundary survey comport with the NSPS/ALTA minimum standards?
Here ends my standard of care opus.

Dwoolley


K. Soze, you made me laugh aloud. I was wondering if anyone else caught Jon Wheat’s double speak. I was thinking he did it on purpose.

Dave,
Let's be prudent. I don't wan't to fight you, I would prefer to direct your energy in a more constructive direction. I was born in Orange County, my father surveyed the County through the 70's, 80's, 90's, and even the 00's. I was educated in Orange County and my first real survey gig was with a survey firm that is based in OC. So when you ask the forum to consider the origin of the post, it's from Orange County.
I have had offices in counties including Contra Costa, Alameda, Amador, Sacramento, and most recently Sonoma.

As far as the double speak concerning one of my post-You edited yours and K Sose was right on.

Section 3.C. of the NSPS/ALTA Standards doesn't really jive with your post.
The Normal Standard of Care - Surveyors should recognize that there may be unwritten local, state, and/or regional standards of care defined by the practice of the “prudent surveyor” in those locales.

Let's keep it civil.
Jon

mpallamary wrote:Government employees are treated with great skepticism by the courts and me, personally. The mere fact that someone is employed by a government agency does not make them an expert. What it means is they work for a government agency and nothing more. There are many cases addressing this situation.

"The imprimatur of a governmental agency, laboratory, office, or title does not automatically make either the results or witness’ testimony inherently trustworthy, credible, and reliable. A shocking and explosive example of inadequacies, misrepresentations, flawed science, doctored laboratory reports, posed evidence, woeful investigative work, and false testimony was the epitomized by U.S. Department of Justice, Office of the Inspector General, The FBI Laboratory: An Investigation into Laboratory Practices and Alleged Misconduct in Explosives-Related and Other Cases, April, 1997. The principle findings and recommendations of the Justice Department’s report addressed “significant instances of testimonial errors, substandard analytical work, and deficient practices” including policies by the Federal Bureau of Investigation Laboratory."

Wait a minute...that's a broad statement. Courts are a branch of the government. Do you mean executive, legislative, judicial? Which government employees do you view with skepticism?
Let's keep it civil.
Jon

Hi Jon,

Most of the work I get involved in involves representing clients who have been harmed by various government agencies. In most instances, a government employee makes uninformed decisions simply because they are employed by a government agency, this despite the fact that they are woefully unqualified. I have seen some incredibly outrageous things in the course of litigation. The comments above are not all of my makings. They are those of the courts.

I was involved with one troubling case wherein the City of San Diego discredited its own City Surveyor because he offered opinions in a court of law that were inconsistent with the city's narrative. That was a joke. The City Attorney would not let the City Surveyor, Lee Hennes, a former CLSA state president offer any opinions because they did not like what he had to say.

The City lost the case and they knee-capped Lee.

mpallamary wrote:Hi Jon,

Most of the work I get involved in involves representing clients who have been harmed by various government agencies. In most instances, a government employee makes uninformed decisions simply because they are employed by a government agency, this despite the fact that they are woefully unqualified. I have seen some incredibly outrageous things in the course of litigation. The comments above are not all of my makings. They are those of the courts.

I was involved with one troubling case wherein the City of San Diego discredited its own City Surveyor because he offered opinions in a court of law that were inconsistent with the city's narrative. That was a joke. The City Attorney would not let the City Surveyor, Lee Hennes, a former CLSA state president offer any opinions because they did not like what he had to say.

The City lost the case and they knee-capped Lee.

Is your opinion the court made a bad decision due to lack of testimonial evidence in that case?

They lost because we had a better case and the law was on our side. They didn't help themselves by prohibiting the City Surveyor, Lee Hennes, from testifying. They argued he could not offer "legal" opinions about boundary lines. I testified and we won. I testified as an expert.

As I said, the city had a different agenda. Check out the attached newspaper article!

The case went up on appeal where we prevailed. It was an interesting case.

Cases like this should be of importance to land surveyors so as to better understand the law.

jonwheat wrote:

DWoolley wrote:“

Standard of Care

Back to the Original Post concerning the Standard of Care. The dishonest sectors of the community would like nothing more than to paint their poor practice as being “local” by misusing the term local as it applies to determining a standard of care. Local, as it relates to a standard of care, does not mean “Everyone does it in this geographic region, so that makes it our standard of care”. False. The standard of care is not a county by county or a NorCal/SoCal difference and has little to do with individual County Surveyors. The idea of creating differing standards of care is largely due to protectionism of the substandard practitioners in a geographic region. It will not wash. Forum readers, watch were the standard of care discussion originates geographically and then, review a couple of the locally filed maps in that county. I believe you will see why a differing standard of care is a topic in that geographic region.

A Judge in Wyoming said it Best:

“Courts are more likely to look for state or national standards. If the professional organizations have not established “standards of practice,” the courts are more inclined to establish their own than allow a small number of local co-professionals to collusively protect each other”.
Banner vs. Town of Dayton, 474 P. 2d 300 (Wyo. 1970)


Define the Standard

Ask yourself, does your boundary survey comport with the NSPS/ALTA minimum standards?

Dwoolley

Dave,
Section 3.C. of the NSPS/ALTA Standards doesn't really jive with your post.
The Normal Standard of Care - Surveyors should recognize that there may be unwritten local, state, and/or regional standards of care defined by the practice of the “prudent surveyor” in those locales.

Let's keep it civil.
Jon

As I stated earlier, the standard of care is a wide-ranging topic which is not ideally suited for a thorough discussion on a forum. However, we can dissect it one piece at a time or until the questions quit being put forth.

Standard of Care

The standard of care is an affirmative defense presented by the professional trying to avoid a liability. An allegation of negligence is defended against by establishing that the professional met the standard of care. If the land surveyor has only having met the standard of care as the defense he is in trouble. The having met the standard of care is only the foundational argument.

In short, the standard of care is the breach of a duty. The duty includes the care and skill ordinarily used in similar cases by reputable members of the professional practice in similar circumstances, similar locality, the use of reasonable diligence in the execution of the duty. Do not read to much into the "locality".

A failure to fulfill any such duty is negligence. (§6.37 BAJI, 8th Ed.)

The Land Surveyor’s Duty Establishing The Property Line.

In California, the authority to establish real property boundaries is singularly, by law, the land surveyor’s exclusive domain – sans a few remaining pre-’82 civil engineers. This places the duty on the land surveyor – not the attorney, architect, civil engineer or any other licensed professional – to recognize the evidence of property rights, property lines, boundary lines, title lines and other real or potential interests in the establishment of those rights and interest. Hereafter, these rights will be “The Property Line”. The establishment of The Property Line for a single client is equally the establishment of the adjoiner’s property line. This is true for each adjoining property owner. In order to properly establish the client’s The Property Line the land surveyor’s duty includes an examination of the occupation, record title interest of the client and the adjoiners, underlying records and any other evidence related to real property boundary establishment.

This standard is the same in all jurisdictions throughout the United States – according the ALTA/ACSM Land Title Minimum Standard Details. It is the same in Mississippi, New Hampshire, Texas, Alaska, Montana, California and the balance of the United States. These states were subdivided and settled in wide ranging manners and methods. The methods of title, also trust deeds, is equally diverse i.e. Torrens, Race, Notice and Race-Notice etc.. Each state has its own case law that governs the establishment of private boundaries and yet, the minimum standard, the most basic, has been established. The land values also vary greatly and yet, land surveyors, title insurers and their respective attorneys can agree on the minimum standards required to perform a boundary survey. The ALTA/ACSM Land Title standards are not the only standard. However, they are one minimum standard.

It is nearly insurmountable for a professional to argue against breaching a minimum national standard for the establishment of The Property Line. The final look and feel of the map and the filing requirements may vary from jurisdiction to jurisdiction, but the consideration and documentation of the records and evidence considered should not.

When Something Goes Wrong

The questions concerning the boundary establishment will not be "did you follow the ALTA/ACSM minimum standard?". After something goes wrong you will asked about every minute detail of the boundary establishment process. As a defense, keeping in mind having met the standard of care is the defense, do you want to say in your defense "I was essentially following the national standards adopted by the representative professional associations" or "this is how some of my pals and I like to survey in the geographic region"? No qualified experts will testify that you and your pals have established a defensible unwritten standard of care that is not representative of the most basic duties of a land surveyor.

Putting aside the written national standards, how would a land surveyor – the only professional legally authorized to establish The Property Line -explain the establishment of a metes and bounds deed description without reviewing and establishing the adjoining deeds and reviewing the occupation without being negligent? This is clear cut negligence in every jurisdiction in California.

jonwheat wrote: Section 3.C. of the NSPS/ALTA Standards doesn't really jive with your post.
The Normal Standard of Care - Surveyors should recognize that there may be unwritten local, state, and/or regional standards of care defined by the practice of the “prudent surveyor” in those locales.

For context read Section 3.B. and D immediately preceding and following 3.C

The minimum standards allow for variations in jurisdiction – being a national standard applied to all states it has to allow for local variations in practice. However, this does not mean a lesser standard than the minimum defined is acceptable. Read the context provided in the paragraphs either side of 3.B.

In my mind, the example of a local standard of care would be the breach of the Measurement Standards based on local practice. In rural areas with large land holdings e.g. long property lines exceeding 1500’, monumented by stone mounds in unforgiving terrain the ability to measure 0.07’ with 50 PPM would far exceed the local standard - the minimum standard allows for this variation, but the breach must be noted. In the nuanced example neither the monumentation or the terrain lends to the relative positional precision requirement.

The idea a local standard of care would allow a land surveyors to forego the Section 3.D. “the boundary line and corners of any property being surveyed…shall be established and/or retraced in accordance with appropriate boundary law principles governed by the set of facts and evidence found in the course of performing the research and survey” in everyday practice is ridiculous on its face. Which land surveyor is willing to forego everything written in the published minimum national standard by hanging his or her hat on the possible (mis)reading of a single sentence of a peer reviewed and accepted 10 page publication on the proper boundary establishment methods? Not me. Please reread the quote by the judge in the Wyoming cases I cited earlier.

Lastly, someone will say “but I am not performing ALTA/ACSM survey”. Fair enough, please explain to me, or anyone being charged with negligence, the standards you have chosen to follow and more importantly, why you breached the minimum national standard. Keep in mind, you cannot contract to break the law. As I said earlier, the squirrel notes usually help make the case for negligence. I cannot recall a single note in which the professional met the burden of Informed Consent [another topic for discussion]. Did the land surveyor outline a difference standard in the contract for services? If not, the standard will be set by someone relying on a written standard.

A local group of professionals, in any given region in California, agreeing with or emulating each other to perform substandard land surveying does not establish a local standard of care. In most instances, anything less in the establishment of The Property Line as described is simply a breach of duty and therefore, negligence. Frankly, there is no place for such local practices. Most of these wayward communities only congregate to protect their bad, oftentimes illegal, practices. These professionals have created a market bottom that puts pressure on honest business practices, fosters illegal practices through their “mentoring” and provides a great disservice to the unsuspecting public. Historically left unchecked, these communities have provided the best arguments to deregulate the practice of land surveying.

Education- the Fallacy, the Camouflage

Any General Contractor or GIS person with a RTK/GPS system can establish a CAD boundary and rotate it to two monuments (calling off the balance of monuments) and make a map (or not) – no license required. Rhetorical question - what separates your land surveying practice from the General Contractor and GIS folks? A license, education and skill that you have chosen not to apply to your practice? Tell me again how education has worked to reform these communities. These substandard communities have thrived through any organized push for education. Keep a ear for anyone saying education is the answer - they are part of the problem. The education mantra is part of the deception. These are not recently licensed professionals, on the contrary, many of these folks have been practicing 10, 20, 40 years or more - no educational opportunities during the last 40 years? Ridiculous on its face. Most of the contemporary technical books available were published originally in the 1950s and 60s. It is simply a gaming of the system and honest business practices is losing.

CLSA has been pushing education for over 50 years and yet, these communities exist. These wayward communities would like nothing more than to have honest business continue as reformers discussing the need for education. It has camouflaged their dirty practices for the last 50+ years without penalty. Education is the feel good red herring/boondoggle that has allowed folks to look the other way and waste a tremendous amount of time only meant as a diversion. There is a predisposition of innocence by pleading ignorance. My experience is the true ignorance to boundary establishment is as scarce as hens teeth. Anyone wonder why the the local practice solutions differ greatly from the test solutions for minimum competence? Why is that? This is coming from someone that spent more than 15 years "educating" from Humboldt to San Diego and many points in between. Education, although welcomed, is the ol' Charlie Brown with Lucy and the football trick.

The honest professionals have an obligation to clean up these communities by any legal means available - anything less is the acceptance, condoning and eventually, the deregulation of the practice. This professional clean up should have been started in earnest 50 years ago.

Not a rhetorical question, what reason or basis will someone offer for breaching a minimum written standard for establishment of The Property Line? Please list the reasons. I will start by stating the cost is not an acceptable reason.

DWoolley

I haven't read the entire string, but based on the Title. Property value has no factor in the Standard of Care. All surveys regardless of the value of the property surveyed, should be based on the same principles, guidelines. Any other standard would be biased.

RAM, you are correct!