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Associated Industrial Contractors2/3/2004
mmon knowledge" exception, answered in the negative. Id.
Daniel is distinguishable in two significant respects: First, the underlying action in Daniel was for breach of contract, not negligence. Insofar as the holding in Daniel is based on an "implied [contractual] duty to perform in a workmanlike manner," id., rather than the duty to exercise reasonable care under the circumstances, the reasoning of Daniel is inapposite to this case. See Davidson and Jones, Inc. v. County of New Hanover, 41 N.C. App. 661, 255 S.E.2d 580 (1979)(distinguishing actions based on contract from those based on negligence and refusing to impose contractual duties not "expressly assumed" under the terms of the contract).
Second, it is undisputed that here the conditions and strict tolerances necessitated employing the knowledge, skill and judgment of a professional surveyor. That was not the case in Daniel. See id. (noting " here s nothing in the record to indicate that the survey required complex calculations . . . ."). I would conclude that this factual discrepancy is sufficient alone to distinguish Daniel and make the "common knowledge" exception inapplicable.
Even strict adherence to accepted surveying principles will, in some cases, yield inaccurate measurements. See e.g. 11 Am. Jur. Proof of Facts 2d 403-05, ยงยง 2-3. Therefore, application of the "common knowledge" exception must turn on something more than the ultimate result. The better reasoned approach, which is more directly related to the negligence standard, is to apply the "common knowledge" exception only where the surveyor was so grossly negligent in the manner in which he performed his professional services that his shortcomings as a professional are readily apparent to a layperson. Examples would include misreading plans and specifications, the taking of faulty measurements, or errors in recording data that, if pointed out and corrected, would yield accurate results. These are the types of errors that would be readily apparent to a layperson, without the need for explanation of complex principles by an expert in that profession. Since there is no evidence in the record that implicates any of these kinds of errors, I would conclude that expert testimony was necessary to determine whether defendant exercised the degree of care that an ordinarily prudent surveyor would have exercised under similar circumstances.
Accordingly, I would hold that plaintiff failed to establish the applicable standard of care and the trial court improperly denied defendant's motion to dismiss.
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