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Associated Industrial Contractors2/3/2004
line. Although Mr. Register did testify, as defendant states, about the technique for double-checking 180ยง angles, he never testified that he, as opposed to Mr. Davis, performed that check or that he had personal knowledge of the result.
Second, Fleming argues that AIC's construction superintendent Lanny Joyce checked Mr. Register's work after the survey was completed and Mr. Joyce's measurements indicated that the center points were within the permitted 1/8 of an inch tolerance. AIC, however, offered evidence that Mr. Joyce was using a tape measure, which could not provide precise measurement because " ith a tape measure, . . . in temperature you've got all kinds of different things, how much the tape shrinks because of the weather, moisture, temperature. It's only as accurate as you can get it." Mr. Register confirmed that he did not use a tape when he did the survey because the electronic transit is "a whole lot more precise." AIC has argued that the whole point of having Fleming perform the survey was because AIC could not achieve measurements within the necessary tolerance using conventional means. The parties' competing arguments on the weight to be given Mr. Joyce's measurements were for the trier of fact to resolve.
The trial judge was entitled to draw the inference that since the line was straight but not at the correct angle and since all four columns on the south line were misaligned rather than just the one affected by the moved batter board, Fleming was more likely than not the source of the error. The standard of review is dispositive. Even though Fleming presented evidence that AIC was responsible for misplacement of the columns, determination of the weight and credibility of evidence was the responsibility of the trial court as the fact finder. Cartin v. Harrison, 151 N.C. App. 697, 703, 567 S.E.2d 174, 178, disc. review denied, 356 N.C. 434, 572 S.E.2d 428 (2002). Because the record contains competent evidence supporting a finding that Fleming was negligent, the trial court's findings are conclusive despite the existence of evidence to the contrary. Huff, 124 N.C. App. at 413, 477 S.E.2d at 89.
Affirmed.
Judge HUNTER concurs.
Chief Judge EAGLES dissents with separate opinion prior to 30 January 2004.
EAGLES, Chief Judge, dissenting.
Because the plaintiff failed to establish the standard of care required to be exercised by a land surveyor, I respectfully dissent.
A land surveyor "does not . . . undertake to insure the correctness of his findings," 11 Am. Jur. Proof of Facts 2d 405; rather, a surveyor is only "required to exercise that degree of care which a surveyor or civil engineer of ordinary skill and prudence would exercise under similar circumstances . . . ." Davidson and 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). It is the general rule that expert testimony is required to establish the requisite standard of care. Bailey v. Jones, 112 N.C. App. 380, 387, 435 S.E.2d 787, 792 (1993). Ordinarily, this requires the plaintiff's expert to "testify as to generally accepted surveying practices to prove that the defendant did not perform his survey . . . according to the standards followed by an ordinarily prudent surveyor in similar circumstances." 11 Am. Jur. Proof of Facts 2d 407. The only exception to this rule is where the "common knowledge and experience of the [fact finder] is sufficient to evaluate compliance with a standard of care . . . ." Delta Env. Consultants of N.C. v. Wysong & Miles Co., 132 N.C. App. 160, 168, 510 S.E.2d 690, 695-96, disc. review denied, 350 N.C. 379, 536 S.E.2d 71 (19
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