Opinion

Associated Industrial Contractors, Inc. v. Fleming Engineering, Inc.

  • 359 N.C. 296
  • 608 S.E.2d 757
  • 2005 N.C. LEXIS 201
Court
Supreme Court of North Carolina
Filed
Mar 4, 2005
Status
Published
Author
Edmunds
On the bench
Wainwright, Edmunds, Parker
Cited by
6 cases
Authority
More cited than 6.4%

The opinion

Justice EDMUNDS

dissenting.

The majority concludes that the trial court correctly determined that, between the two parties, the evidence supported finding defendant responsible for the error. However, a finding of responsibility does not necessarily imply a finding of negligence. The majority identifies but never addresses the issue raised in Chief Judge Eagles’ dissent in the Court of Appeals, that is, whether plaintiff was required to present expert evidence as to the standard of care required of defendant. Absent such evidence, the finder of fact had no basis for concluding that defendant was negligent.

The practice in North Carolina is to require expert testimony as to the applicable standard of care whenever a negligence action is brought against a professional or other individual who works in an area where the standard of care involves “highly specialized knowledge with respect to which a layman can have no reliable information.” Mazza v. Huffaker, 61 N.C. App. 170, 175 , 300 S.E.2d 833, 837 (quoting Jackson v. Mountain Sanitarium & Asheville Agric. Sch., 234 N.C. 222, 227 , 67 S.E.2d 57 , 61 (1951)), disc. rev. denied, 309 N.C. 192 , 305 S.E.2d 734 (1983); see also David A. Logan & Wayne A. Logan, North Carolina Torts § 11.10 (2d ed. 2004). An exception to this rule, on which the majority apparently relies, arises where the “common knowledge and experience of the [fact finder] is sufficient to evaluate compliance with a standard of care.” Delta Envtl. Consultants of N.C., Inc. v. Wysong & Miles Co., 132 N.C. App. 160, 168 , 510 S.E.2d 690, 695 , disc. rev. denied, 350 N.C. 379 , 536 S.E.2d 70 (1999). This exception applies when professional conduct is so grossly negligent that lay knowledge is sufficient to .“make obvious the shortcomings of the professional.” Id. at 168, 510 S.E.2d at 696 ; see also McGill v. French, 333 N.C. 209, 218 , 424 S.E.2d 108, 113 (1993); Groce v. Myers, 224 N.C. 165, 170 , 29 S.E.2d 553, 557 (1944).

I do not believe that this “common knowledge” exception applies in the instant case to relieve plaintiff of its duty to provide expert testimony as to the standard of care that defendant was required to meet. As detailed in the majority opinion, the evidence shows that Honda planned to add to an existing building an extension that was to be 80 feet wide by 120 feet long. Because it would tie into an existing crane, the extension had to be in the precise shape of a rectangle with 90 degree angles at each comer. Defendant made the measure *302 ments. Once construction began, however, the 120 foot long south wall was found to be straight but not parallel to the 120 foot long north wall. At its far end, the south wall deviated 5.75 inches from the path it would have followed had it been perfectly parallel to the north wall. Using this information, straightforward trigonometric analysis reveals that the angle at the southern corner where the extension met the existing building was 90 degrees 13 minutes 12 seconds (or 90.2288 degrees) rather than 90 degrees exactly. 1

While this small error had large consequences, those consequences may not be dispositive as to whether any actionable negligence occurred when defendant measured the angle. Large effects can result from a minuscule initial cause, as in the classic example where a kicked pebble triggers a landslide. While we hope for perfection among professionals, we do not require it. The record is devoid of any evidence as to the tolerances those in the surveying profession observe in carrying out their responsibilities. Nor does the evidence suggest whether a surveying error is judged on the basis of the magnitude of the mistake in the original measurement, on the basis of the results of the mismeasurement, or on both. Without such evidence, the fact finder had insufficient grounds on which to decide whether defendant was negligent. Therefore, plaintiff had the burden of introducing expert testimony as to the standard of care required of a surveyor, especially where, as here, conditions challenged or confounded usual surveying techniques. Accordingly, I respectfully dissent.

Justice PARKER joins in this dissenting opinion.

. To recreate this calculation, draw a horizontal line representing the south wall as it should have been, parallel to the north wall and 1,440 inches (120 feet) long. Draw down from the left end of the horizontal line a vertical line that is 5.75 inches long, the amount by which the far end of the south wall deviated from being parallel with the north wall. These two lines meet at a 90-degree angle. Connect the ends of these two lines to make a right triangle. The hypotenuse of the triangle is the path the south wall actually followed. The remaining characteristics of the triangle can be derived from the known right angle and the two known sides.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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