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Associated Industrial Contractors2/3/2004
00.
AIC sued Fleming alleging that Fleming negligently performed its survey and that, as a proximate result of Fleming's negligence, AIC had to incur the cost of replacing the columns in the proper position. Defendant counterclaimed for the amount of $436.25 that it alleged AIC owed for completion of the survey.
Following a bench trial, the trial court found "by the greater weight of the evidence, that the Defendant miscalculated the location of the columns along the south wall" and that this failure proximately caused damages to plaintiff AIC in the amount of $23,000.00. The court deducted the amount of $436.00 owed by AIC to Fleming from the award and entered judgment in the amount of $22,564.00. Fleming has appealed from that judgment.
I.
We first address whether the trial court should have granted defendant's Rule 41(b) motion to dismiss based on AIC's failure to present expert testimony as to the standard of care applicable to Fleming. Generally, a surveyor or civil engineer is required to exercise "that degree of care which a surveyor or civil engineer of ordinary skill and prudence would exercise under similar circumstances, and if he fails in this respect and his negligence causes injury , he will be liable for that injury." Davidson & Jones, Inc. v. County of New Hanover, 41 N.C. App. 661, 668, 255 S.E.2d 580, 585, disc. review denied, 298 N.C. 295; 259 S.E.2d 911 (1979). AIC was thus required to prove that Fleming failed to exercise that degree of care which a surveyor of ordinary skill and prudence would exercise under similar circumstances.
The standard of care provides a template against which the finder of fact may measure the actual conduct of the professional. The purpose of introducing evidence as to the standard of care in a professional negligence lawsuit "is to see if this defendant's actions 'lived up' to that standard . . . ." Little v. Matthewson, 114 N.C. App. 562, 567, 442 S.E.2d 567, 570 (1994), aff'd per curiam, 340 N.C. 102, 455 S.E.2d 160 (1995). Ordinarily, expert testimony is required to establish the standard of care. Bailey v. Jones, 112 N.C. App. 380, 387, 435 S.E.2d 787, 792 (1993).
Here, plaintiff did not tender any witnesses as experts. Plaintiff did, however, offer the testimony of Mr. Register, Fleming's surveyor with ten years of surveying experience. Mr. Register described in great detail what Fleming was hired to do and how he and his assistant were supposed to accomplish their responsibilities. He explained how they were supposed to use the electronic transit device; each step that the operator of the device, Mr. Davis, was required to take; what each step was expected to achieve; what they could do to double-check their results; and what the result should have been if they performed as anticipated. This testimony was sufficient to establish the standard of care. State v. Linney, 138 N.C. App. 169, 183, 531 S.E.2d 245, 256 ("whether or not a witness has been formally tendered as an expert is not controlling" if the witness may appropriately be considered an expert based on qualifications), disc. review dismissed and appeal dismissed, 352 N.C. 595, 545 S.E.2d 214 (2000). See also Noell v. Kosanin, 119 N.C. App. 191, 196, 457 S.E.2d 742, 745 (1995) (holding expert testimony not required to defeat summary judgment in medical malpractice suit because defendant doctor's admissions were sufficient to establish the standard of care).
Moreover, expert testimony "'is not required . . . to establish the standard of care, failure to comply with the standard of care, or proximate cause, in situations where [the trier of fact], based on its common knowledge and experience, is able to decide thos
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