As bizarre as it may seem, we are not expected to be perfect. Avoiding negligence simply requires "reasonable and prudent" conduct. The courts (being ignorant of the whys and hows of technical subjects) require only that the behavior under consideration be at least an average job. In other words, was the conduct consistent with that of the average surveyor in a similar situation?
But how does one know what the "average" course of action is? The published writings of the profession might offer a clue. Both treatises and periodicals provide insight into the principles of the profession, with treatises addressing well-established doctrines of the practice and periodicals—such as the one in your hand—covering developing trends and providing a forum to discuss the issues of the day. Because of the general nature of their content, the published writings enjoy broad appeal and are, therefore, widely available. Unfortunately, the very traits making them appealing to most surveyors make them less applicable to specific situations. Beyond that, nationally-focused literature may be a poor barometer when applied to a locally-focused negligence action.
Historically, the doctrine of reasonableness required comparison with local contemporaries. For example, California surveyors were not bound by what Virginia surveyors considered prudent. More recently, certain courts have held that some professions are not constrained by location; therefore, all practitioners could be expected to conform to the same standard. Surveying has not completely evaded this treatment. Some court cases have held that a "national" standard of care for surveying exists. Those cases concluded that since surveyors everywhere generally provide the same service to society, and since the expectations of society probably are uniform, the same care is required of every surveyor.
However, this view fails to fully grasp the situation confronting the surveyor. In the first place, the public entrusts surveyors across the country with varying scopes of practice. For instance, in some states surveyors can provide minor engineering services to the public; in others, this is unheard-of. Second, boundary retracement encourages a local focus. Insight into the capabilities and practices of the former surveyors in a particular area is an intensely local knowledge. If our mandate from society is to "follow in the footsteps . . .," logic dictates that when the footsteps vary from one another, the actions constituting reasonable and prudent retracement must vary as well. Third, development regulations vary considerably between counties, let alone states. Surveyors are deeply involved in that process all over the country. If a national standard of care exists governing that, I wish someone would outline it for me. I cannot imagine such a thing.
If all this were not enough, standards of care generally are not static. They tend to evolve over time, shifting with the changing environment in which we find ourselves. As a result, what was appropriate fifteen years ago might border on misconduct today. Technology usually speeds this process.
Nearly all of us have had the benefit of tutelage in the early part of our career. A principal benefit of requiring such an apprenticeship for licensure is the inculcation of common custom—that body of principles and procedures which, by definition, is held by most professionals in the field. Of course, the concept is not perfect; if one’s tutor does not embrace the same customs as others in the area, one has little chance of learning about the alternatives without changing tutors. Nevertheless, the method has been used for generations and provides more benefits than drawbacks. Yet, once on their own, a surveyor may avoid interaction with other surveyors and thus be unaware of changes occurring in the local standard. Additionally, if they should happen to move to another area, another standard of care might be in effect at the new location. Thus, despite the possibility of a solid technical grounding early in one’s career, it is possible that the standard of care could gradually shift—and with it the unspoken expectation of the public.
Are we without recourse, then, in attempting to stay abreast of an evolving standard of care? Not quite. We have available to us a means to monitor the collective standard of our peers. State surveying society functions, especially local chapter meetings, provide the opportunity to monitor the standard of care by encouraging informal dialogue between surveyors. Moreover, probably no better forum for debate over common custom exists than a local chapter meeting.
Some doubt the wisdom of such a notion. I once was asked to respond to the charge that while some professional society functions were worthy of education credit, others (dinner meetings were the targets, as I recall) most certainly were not. If every society function were bestowed the status of "continuing education," some wondered, wouldn’t the term surely lose its meaning? On the surface, that argument has merit. Third parties watching as we implement mandatory continuing education would lambast such a policy as a sham. But would it be?
What does the standard of care demand? It merely requires that the professional act in a manner consistent with how his peers would act in a similar situation. Notice that the standard does not require perfection or absolute correctness, but action in conformity with that of one’s peers. This underscores the public’s presumption that all professionals will conduct themselves similarly. That brings us to the central question: how do you know how your peers would handle a particular situation unless you ask them?
Benefits of Informal Dialogue
I have noticed a curious thing: at "social" events attended primarily by surveyors, the informal conversations invariably return to the topic of surveying. This is not so surprising as it might at first appear. Usually, surveying is the only thing we have in common with one another. As we consider the merit of dinner meetings qualifying for educational credit, we would do well to also consider the lack of alternative ways to glean the information on the evolving standard of care. Besides calling your colleagues and interrogating them one by one—a cumbersome process, and one that does not invite the serendipitous involvement of others within earshot, there is no better way of quizzing your peers than during a casual conversation over dinner. Beyond that, many conversations over several years can build the kind of mutual respect for one another that becomes essential when one has a "head-scratcher" and needs to tap the collective wisdom of the others.
Our mandate from the courts is to act consistently with one another. Viewed from this perspective, society meetings become less of an option and more of a requirement. If, as Sir Francis Bacon once wrote, "every man is a debtor to his profession," what could be more appropriate? We may end up closer to perfection than we imagined.
Copyright © 1996 By Joel M. Leininger, LS