THE LAW AND CIVIL ENGINEERING – AUGUST 2017 NEWSLETTER
The Surveyor Was Liable to Future Owners of The Property For His Errors
by Eugene Bass
A surveyor was hired to survey some property and divide it into two separate parcels. A house, retaining wall and driveway had already been constructed on the northerly portion of the property. When the client hired the surveyor to make the survey, he told him that he wanted the property divided in such a manner that the house, retaining wall and driveway would be contained on one parcel and the other parcel would consist of a vacant lot. The client died while the survey was being made. The surveyor completed the survey for the executor of the estate and filed and recorded a survey map dividing the property into two parcels. However, the surveyor had made an error in his survey and had not divided the property so that all the improvements were located on one parcel. The surveyor’s division of the property resulted in part of the retaining wall and driveway being located on the “vacant lot.”
The person who purchased the entire piece of property, comprised of both parcels, from the deceased client’s estate later entered into contracts to sell the two parcels to different buyers. The buyer of the “vacant lot” discovered that there had been an error in the survey and that due to the encroachment of the retaining wall and driveway on his parcel, it was not possible to construct the house that had been designed for the property.
The buyer of the two lots from the estate resolved the issues with his buyers and sued the surveyor to recover the amounts he had paid in settlements and expenses to deal with the problems as well as compensation for his time lost from his employment while resolving the issues.
At the trial, the surveyor claimed that he should not be liable since he had no contract with the buyer of the property from the estate and hence, owed no duty to that party. The trial court held that the surveyor’s negligent performance of his contract with the original owner did not render him liable to the future owners of the property. The appellate court disagreed.
The appellate court held that the surveyor could be held liable to parties with whom he had not contracted for negligent performance of his contract. In finding that there could be liability, the court cited several guidelines applicable to the issue. The determination of whether in a specific case the defendant will be held liable to a third person not in privity is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, and the policy of preventing future harm.
The court held that when the surveyor prepared his survey, he could reasonably anticipate that it would be used and relied upon by persons such as future owners, who purchased the surveyed property. The surveyor could be liable.