Bixenmann v. Dickinson Land Surveyors – Plaintiffs Needed Expert Witness to Prove Injury Lawsuit

Gregg Hollander | August 9, 2016 | Premise Liability

When a person alleges negligence on behalf of a professional person who was acting in the scope of employment at the time of the purported wrongful act, it may be necessary for the plaintiff to secure expert witness testimony.

In these cases, a finding of negligence necessitates plaintiffs prove the defendant deviated from reasonable industry standards. Mostly, we see this in medical malpractice cases, though it could apply in other situations too.

In the recent case of Bixenmann v. Dickinson Land Surveyors, Inc., the Nebraska Supreme Court was asked to decide whether the lower court erred in granting summary judgment to defendant land surveyors, who were alleged to have been negligent in placing stakes on a property over which plaintiff later tripped.

The lower court had ruled plaintiff hadn’t proven his case because defendant was acting as a professional – licensed and regulated by the state – and no expert witness testimony had been presented to assert he’d violated industry standards.

Plaintiff, on the other hand, argued it wasn’t necessary to present the testimony of an expert witness because the facts were simple and straightforward enough for a layperson to understand. The defendant’s action of placing the stakes so that they were not clearly visible to someone entering the property was not professional negligence but rather ordinary negligence.

The state supreme court in its review didn’t actually reach this question of whether an expert witness was needed. Instead, the court found the bigger issue was the lack of defendant’s duty of care to plaintiff.

According to court records, the property on which this personal injury occurred was actually owned by plaintiff. This property contained a fair amount of land and a storage facility. Plaintiff sought to sell this property.

Eventually, they had a buyer. The buyer agreed to purchase the property, but as a condition asked that a survey be conducted so that they knew exactly where the property line ended. Plaintiffs agreed to this, but said the buyer would have to pay for it, which was agreed.

The surveying team come to the property to conduct the surveying job in June 2010. They were hired to complete a basic survey of the property boundaries, and once those boundaries were located, they marked the four corners with wooden stakes – tied with ribbon – securely driven into the ground. The stakes were about 12 inches tall, surrounded by about 2 inches of grass.

One day, not long after the survey was done and while the stakes were still in the ground, plaintiffs went to their storage unit to retrieve some lawn equipment. The equipment was then loaded up and plaintiffs completed the work elsewhere before returning. While plaintiff was unloading one of the lawn mowers from a trailer, he tripped over one of the stakes. As a result, he suffered serious hip injuries. The stake had been located near the driveway next to the storage facility.

Plaintiff filed a lawsuit against the surveying company for negligence.

After the trial court granted summary judgment to the defense on the expert witness issue, plaintiff appealed.

In affirming that summary judgment, the court ruled that the main reason plaintiff didn’t have a case was because defendant surveyor owed plaintiff no duty of care. Although the work had been conducted on plaintiff’s property, the only persons to whom defendant owed a duty of care were his clients – and plaintiff hadn’t been the client; that was the buyer. Therefore, the court affirmed the summary judgement.