The December Edition is our second ethics case of the year. We do an Ethics Edition in June and December. Some of you are writing me privately about this edition with some very interesting comments. I would love it if you would post your comments here so that others might have the benefit of your insights into the case.
Primarily, this case is a negligence case, but negligence often rubs up against ethical issues and this case does just that. The basic elements of negligence (as discussed in the case) are a duty owed by the tortfeasor, breach of the duty, causation and damages. All four elements have to be proven by a preponderance of the evidence. Of these four elements, really the only one that the practitioner can control is a breach of the duty owed. In other words, the duty owed by the practitioner is to exercise the same standard of care as any other reasonably prudent practitioner in like or similar circumstances. Whether a duty is owed to a given plaintiff is a question of law to be decided by the court, and if the surveying activity caused damages, then the only unanswered question will be if the practitioner’s actions fell below the standard of care.