Lucas & Company, LLC

Equity Aids the Vigilant, Not Those Who Slumber on Their Rights

Lucas & Company, LLC

In my last column we touched on the idea of “unchecked incompetent practice” and how that is a problem for the land surveying profession. This time around we are going to dive a little deeper with that idea. In a 1969 article entitle “The Professional Status of Land Surveyors,” Curtis Brown wrote, “professional liability is a privilege tending to prove the land surveyor’s professional standing.”[1] What Brown was saying is that the “privilege” of liability was a hallmark of true professional status, something the land surveying profession has struggled with for decades if not centuries. After all, it is the professional who will be sued not the technicians.

The two primary policing mechanisms for any profession are Board action (all regulated professions have some type of regulatory “Board”), and litigation where professional practice is tested, punished if necessary and ultimately refined. Litigation also tends to weed-out bad practitioners. Both of these processes require a standard for the professional practice to be judged against. Generally, Boards will pass rules and regulations specific to the profession governed. Litigation will test professional practice against what, in my estimation, has now become the universal standard of care for professional practice—the “reasonably prudent practitioner” standard.

In most professions these two policing mechanisms work fairly well for two primary reasons. The first is that most regulatory Boards define correct practice with rules and regulations that define a “standard of practice.” Black’s defines a “standard” as a “type, model or combination of elements acceptable as correct or perfect.” In other words, correct results matter. In the context of boundary retracement land surveying, a standard of professional practice would describe the acceptable elements of “correct” practice which ultimately leads to “true and correct” results. Correct results meaning the retracement surveyor has utilized correct retracement theory in locating the true and correct property boundaries of land being surveyed (i.e., land surveying).

This does not mean that the professional must be perfect in all instances or make correct boundary determinations every time. Nobody is perfect, everyone makes mistakes, and this is the reason for professional “errors and omissions” insurance. An error does not constitute negligence, and maybe you do not realize this, but negligence can be found even when the results are correct. Negligence is primarily a standard of care issue, which is often prompted by incorrect practice.

Second, litigation works well with other professions (at least the primary ones: clergy, doctors, lawyers, engineers, etc.) because there is insurance money to foot the litigation expenses. The doctor who amputates the wrong leg will be sued for negligence because the doctor’s insurance company will defend and the plaintiff’s lawyers will bring the lawsuit on a contingency basis. The lawyers for the plaintiff will work on contingency because they know they will eventually be paid either through a settlement with the insurance company or with an outright victory in court. Either way, insurance money allows the litigation to occur to test, punish and refine medical practice.

Neither of these two policing actions operate well or at all in the land surveying profession for the same two reasons they work for other professions. First, while they have standards that define correct practice to achieve correct results, we have so-called ‘standards of practice’ that are nothing more than technical standards, written by technicians for technicians. There is not one of these so-called standards that I have ever examined that described correct results of retracement surveying. Another problem that I can’t address at this time (but will later) is the horrendous definition of surveying promulgated by the NCEES that provides cover for aberrant land surveying practice. For now, I will simply say: “Without superior knowledge, we have an inferior profession.” (Brown)

Second, while they have litigation (or the threat of litigation) to force true standards of practice to be developed and disseminated to practitioners, to correct practices that have been proved ineffective against legal attack, to sharpen the skills of the practitioners and force practitioners to have superior knowledge, we do not. Even though a surveyor may have insurance (and many do not), there is still no money to launch a lawsuit and even if victorious there is generally little or no money to recover. These are not personal injury cases. The practical reality is that surveyors are immune to prosecution because nobody can afford to sue them. Don’t get me wrong, surveyors do get sued every now and then, but even the most egregious surveying results and the most incompetent surveyor may never see the inside of a courtroom because there is no money to litigate.

So how do we police the land surveying profession? Look in the mirror, it’s up to us!

Jeff Lucas

[1] Brown, Curtis M., “The Professional Status of Land Surveyors,” Surveying and Mapping, Vol. XXI, No. 1, 1969, at 63-71.