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Associated Industrial Contractors2/3/2004
99).
I am unpersuaded that Mr. Register's own testimony was sufficient to establish the requisite standard of care. Although Mr. Register was certainly qualified to testify as an expert in this area, see State v. Linney, 138 N.C. App. 169, 183, 531 S.E.2d 245, 256-57 (witness may testify as an expert if qualified even though not formally tendered as an expert witness), appeal dismissed and disc. review denied, 352 N.C. 595, 545 S.E.2d 214 (2000), his testimony failed to establish the applicable standard of care. I disagree with the majority's characterization of Mr. Register's testimony: While Mr. Register testified extensively as to the process he went through to establish and verify the locations of the support columns, his testimony was limited to the procedure that he in fact followed, not the procedure he was "supposed" to follow. My review of the record reveals no testimony on the part of Mr. Register as to (1) what would constitute generally accepted surveying practices under similar ircumstances, or (2) that the procedure he followed failed to comport with those standards. Plaintiff's evidence also included the testimony of Scott Flanigan and Lanny Joyce. Although both of these witnesses arguably were qualified to testify as experts in this field, neither testified as to either generally accepted surveying practices or that Mr. Register failed to perform the survey according to those standards. Consequently, I would conclude that plaintiff's expert testimony failed to establish the requisite standard of care.
I am also unpersuaded that this case falls within the "common knowledge" exception to the general rule requiring expert testimony. " he application of the `common knowledge' exception has been reserved for those situations where professional conduct is so grossly negligent that a layperson's knowledge and experience make obvious the shortcomings of the professional." Delta Env. Consultants, 132 N.C. App. at 168, 510 S.E.2d at 696. The majority, relying on Daniel, Mann, Johnson & Mendenhall v. Hilton Hotels Corp., 98 Nev. 113, 642 P.2d 1086 (1982) and Paragon Engineering, Inc. v. Rhodes, ___ Ala. ___, 451 So.2d 274 (1984), concludes that the "common knowledge" exception is applicable under these circumstances. Notwithstanding the facial similarity between these cases and the facts presented here, these cases are readily distinguishable and do not support the application of the "common knowledge" exception to this case.
First, a careful reading of Paragon reveals that the only issue before that court was whether the testimony of "several witnesses, who were not professional surveyors," was sufficient to support the conclusion that the defendant was negligent in staking a survey site. Paragon, ___ Ala. at ___, 451 So.2d at 274. The Court found that although none of plaintiff's witnesses were "expert in the technical sense," i.e. professional land surveyors, three of plaintiff's witnesses were competent to testify as experts by virtue of their knowledge and experience. Id. at ___, 451 So.2d at 276. The Paragon court ultimately concluded that the testimony of these witnesses was sufficient to support the jury's conclusion. Id. at ___, 451 So.2d at 277. Because Paragon was based on application of the general rule, rather than the "common knowledge" exception, it is of little instructional value here.
Moreover, Daniel involves an action for breach of contract filed against the defendant surveyor when defendant improperly pinpointed the location of caissons designed to support a structure. The issue before the court was whether "expert testimony s required to prove the breach of duty." Daniel, 98 Nev. at 115, 642 P.2d at 1087. The Daniel court, applying the "co
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