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Empco Contracting, Inc. v. Stewart Surveying & Engineering, LLC

BER-L-2753-07 (N.J. Super. Law Div. 2009) (Unpublished)

SURVEYORS; LIABILITY —The applicable standard for a surveyor’s malpractice is whether the surveyor exercised the degree of judgment, knowledge, and skill which surveyors of ordinary ability possess, in the same or similar communities, at the time the surveyor performed its services.

A contractor entered into a contract to perform a road and bridge construction project for a municipality. It subcontracted with a surveying company to perform the construction survey stakeout for a bridge to be built in connection with the project. The contractor utilized the surveyor’s survey stakeout to construct a reinforced concrete bridge abutment. When the concrete forms were removed, a consultant for the contractor discovered that the abutment was not properly located. The contractor engaged a different engineering and surveying firm to review the survey work. The new firm found numerous surveying points in the wrong locations. As a result of these mistakes, the south bridge abutment was located approximately 1.5 feet into the river. During a meeting, the principal of the original surveying firm acknowledged that he misread the engineering plans. Therefore, no matter what occurred with regard to the stakeout, the south bridge abutment was going to be constructed in the wrong location. The contractor sued the first surveying company for malpractice.

The Court agreed with the contractor, holding that the surveyor’s miscalculation, which made the bridge 18 inches short, was “a” proximate cause of economic damages sustained by the contractor (as opposed to “the” proximate cause). It noted that the tolerance for error in survey work is minimal (1/8 of an inch) and the mistake here “defie[d] basic tort principles of proximate cause.” The Court held that the bridge stakeout performed by the surveyor, and relied upon by the contractor, was not prepared within accepted standards of surveying work to allow the bridge to be constructed in the correct location and in accordance with the specified plans. The Court ruled that the applicable standard is whether the surveyor exercised the degree of judgment, knowledge, and skill which surveyors of ordinary ability possess, in the same or similar communities, at the time the surveyor performed its services. It found that either insufficient attention had been given to the plans by the surveyor or that the surveyor did not know how to read a set of plans for the construction of a bridge. According to the Court, the trial testimony revealed that the field surveyor had no experience in the stakeout of bridges and should not have been employed by the surveying company to perform the type of surveying services required. The Court noted that a major portion of the south abutment had to be demolished and replaced as a result of the actions of the surveyor. Damages were calculated based on the costs incurred to demolish the abutment and to replace it at the correct location, including all payroll costs and materials used.


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