In recent years, Illinois courts have wrestled with the tort of negligent misrepresentation and how it applies to various business professions. although accountants, (1) banks, (2) and title insurance companies (3) have been under the judiciary's microscope, land surveyors for the most part have

This article will discuss surveyor tortious liability to third parties in Illinois, the possible application of the Moorman doctrine to surveyor liability, defenses to a cause of action against a surveyor, and the attorney's role in representing the land surveyor.

Rozny v Marnul and foreseeable third parties

Rozny v Marnul is surely the most famous surveyor liability case in Illinois. (4) Indeed, it has been cited in numerous decisions throughout the nation. (5)

Rozny concerned a defendant surveyor, John Marnul, who prepared a survey of a vacant lot for S & S Builders in 1953. S & S Builders sold the lot to another builder, Harold Nash, who built a home on the lot. Marnul revised the survey in 1955 by adding the house to his drawing.

In 1956 Nash sold the home and lot to Raymond and Catherine Rozny. Later that year, the Roznys constructed a garage on the rear of the lot and extended the driveway. In doing this, they relied on iron pipes in their yard and a mark on the front sidewalk, all of which were shown on the plat of survey as the limits of their property.

Unfortunately, the plat incorrectly showed these markers, and as a result, the driveway and garage were constructed over the west line of the lot and onto the adjoining property. The Roznys apparently discovered these encroachment problems (and the fact that the original driveway also encroached over the west line) in 1962. They filed suit against Marnul and went to trial in September of 1964.

Marnul's original survey contained the following certification: "This plat of survey carries our absolute guarantee for accuracy." When Marnul revised the survey in 1955, he added this statement: "I, John Marnul, hereby certify that I have resurveyed and located the building on the property above described and that the plat above is a correct representation of said survey and location."

A Cook County circuit court jury returned a verdict against the surveyor. The appellate court reversed, holding that the action was one of contract and that because the plaintiff was not in privity with the defendant, the plaintiff could not maintain the action. The Illinois Supreme Court reversed the decision of the appellate court.

In rendering this decision, the court looked at the following six factors:

1. The survey's "absolute guarantee for accuracy" certification;

2. The defendant's knowledge that the plat would be used and relied on by parties other than the person who originally ordered it, including subsequent purchasers;

3. The recognition that potential liability in this case is restricted to a comparatively small group, and that, ordinarily, only one member of that group will suffer loss;

4. The absence of proof that copies of a corrected plat were delivered to anyone;

5. The undesirability of requiring an innocent party to carry the burden of a surveyor's mistakes;

6. The policy consideration that recovery by a reliant user whose ultimate use was foreseeable will promote cautionary techniques among surveyors.

The defendant testified that he knew that certain parties would rely on his plat of survey. In rendering its decision, the supreme court elaborated on this concept, holding that the surveyor was liable in tort to not only the known party with whom he had contracted but also to foreseeable third parties. (6)

Who are foreseeable third parties?

In the typical real estate purchase, the purchaser, lender, and title company are foreseeable third parties. But what if the purchaser sells the land a year after he bought it? Is this new purchaser a foreseeable third party? In the event the survey is later found to be defective, is the surveyor liable to the buyer's buyer?

Under Rozny, the test is this: If it is reasonably foreseeable for the surveyor to know that specific third parties will rely on his survey, then the surveyor is liable to those reasonably foreseeable third parties.

In the Chicago metropolitan area, it is customary for a seller of land to furnish a purchaser a current survey during the course of the real estate transaction. If a new purchaser receives a current survey at closing, it is possible that a "buyer's buyer" is not a foreseeable third party of that original surveyor. Thus, generally speaking, the surveyor's liability for a defective survey might cease when the original purchaser conveys the land to a new purchaser. (7)

Title companies give coverage over matters of survey when they delete the survey-related "general exceptions" from their title policies. They will delete these exceptions when they are furnished a current survey of the land. (of course, any adverse matters disclosed by the survey are added to the title policy.) It is clear, then, that a title company would normally be a foreseeable third party under Rozny.

But an attorney will sometimes request this coverage when the parties are either unable or unwilling to obtain a current survey. Instead, the attorney will give the title company an older survey (usually a copy of the survey the owner of the land received when he or she purchased the property) and an Affidavit of No New Improvements. This affidavit is usually executed by the landowner; it either provides assurances that the owner has made no physical improvements to the property since the date of the survey or it details the nature and location of any improvements that the landowner did make.

It seems clear that if a title company incurs a claim because of a defective current survey, it might have a cause of action against the surveyor who prepared that survey. But the Rozny case suggests that if the title company insured a "buyer's buyer" and gave that subsequent purchaser extended coverage over the survey-related general exceptions on the basis of an old survey and an affidavit of no new improvements, the title company (and the subsequent purchaser) might not have a cause of action against that surveyor in the event the old survey was later determined to be defective. (8)

The Moorman doctrine--no tort recovery for "economic loss"

The information-provider exception. Thirteen years after Rozny, in Moorman Manufacturing Co v National Tank Co (9), the Illinois Supreme Court adopted the economic loss doctrine. The so-called Moorman doctrine bars a plaintiff from recovering in negligence for losses that are purely economic, that is, losses that do not involve personal injury or property damage. The Moorman doctrine applies to both products and services.

There are exceptions to the Moorman doctrine. For example, economic loss is recoverable when one who is in the business of supplying information for the guidance of others in their business transactions makes negligent representations. A negligent misrepresentation arises when a party is under a duty to communicate accurate information but instead makes a false statement of material fact.

To recover under a negligent misrepresentation theory, a plaintiff must prove carelessness or negligence in ascertaining the truth of the statement by the party making it; an intention to induce the plaintiff to act; action by the plaintiff in reliance on the statement; and damage to the plaintiff resulting from this reliance. This "negligent misrepresentation exception" does not apply, however, when the information that is negligently communicated is merely ancillary to the sale of a product or service. (10)

In other words: generally speaking, one cannot recover in tort for economic loss when the loss is not accompanied by bodily harm or property damage. one could, though, recover for economic loss when a party who is in the business of supplying information for the guidance of others makes a negligent misrepresentation. This party is shielded from tort liability, however, if the information in question is not central to the sale of a product or service by the information provider.

Consequently, the courts have found pure information providers such as termite inspectors, (11) real estate brokers, (12) and stockbrokers (13) to be liable for their negligent misrepresentations. on the other hand, courts have found manufacturers of tangible goods such as computers and construction materials not liable for such misrepresentations. (14)

Thus, when the misinformation relates to the defendant's tangible goods and/or noninformational goods or services, the information is considered to be merely ancillary or incidental. In such instances, the defendant is not in the business of providing information, and thus the defendant would not be liable for any negligent misrepresentation. (15)

Contract v tort damages. The supreme court in Rozny determined that the surveyor was liable in tort. But the Moorman doctrine makes it clear that in certain circumstances a plaintiff suing a surveyor might be limited to only breach of contract damages. What is the nature of such damages? how are they different from tortious damages?

Steven g. M. Stein, Paul Cottrell, and Mark C. Friedlander explain the difference in their Chicago Kent Law review article, A Blueprint for the Duties and Liabilities of Design Professionals After Moorman:

   [T]he theoretical measures of damages
   in tort and contract are not precisely the
   same. In a tort action a plaintiff may recover
   all damages proximately caused
   by the tortious conduct. [Citations omitted]
   In a contract action, a plaintiff may
   recover all consequential damages which
   were reasonably foreseeable and within
   the contemplation of the parties when the
   contract was formed. [Citations omitted]

   This difference in the formulation of
   the measures of damages may have some
   impact on a plaintiff who is forced by the
   Moorman rule to sue an architect in contract
   rather than tort. For example, if an
   architect negligently designs windows for
   a client's garage which permit a burglar to
   break in, and the client subsequently converts
   the garage into a jewelry store, it is
   likely that the architect would be liable for
   jewels stolen by the burglar if a tort action
   could be maintained, but not under a contract
   theory. The architect's negligence was
   a proximate cause of the stolen jewels, but
   it was not reasonably foreseeable that the
   jewels might be stolen. (16)

These two paragraphs provide the template with which surveyor liability can similarly be analyzed. Assume that a surveyor is hired to survey a vacant parcel of land. The rectangular-shaped tract is 200 feet by 100 feet in size, but the surveyor incorrectly shows the dimensions as 200 feet by 110 feet on his survey.

He notes that the square footage of the land is 22,000 square feet, when it is actually 20,000 square feet. Relying on the square footage and dimensions shown on the survey, the purchaser pays $100 per square foot for the property, or $2.2 million.

After the closing, the purchaser attempts to subdivide the land as a two-lot commercial subdivision. Because the parcel is only 20,000 square feet in size and not 22,000 square feet, the land cannot be divided into two lots. The purchaser is forced to reconfigure the property as a one-lot subdivision.

The purchaser's contract damages would be limited to the difference in value between 22,000 square feet and 20,000 square feet, or $200,000. In tort, though (assuming that the subsequent subdivision was reasonably foreseeable), the surveyor could be liable for all damages proximately caused by the surveyor's error. These damages might include economic losses such as lost profits due to the inability to develop and sell two commercial lots.

Surveyors and the Moorman doctrine. As noted above, economic loss is recoverable when one who is in the business of supplying information makes negligent misrepresentations. Is the surveyor in the business of supplying information? To date, the Illinois courts have not discussed the Moorman doctrine's application to the profession of land surveying. The appellate court did, however, rule on architects and engineers in Tolan & Son, Inc v KLLM Architects, Inc, and the findings in this case are key to reaching a reasonable conclusion as to possible surveyor liability. (17)

In Tolan, the court noted the supreme court's ruling in Fireman's Fund Insurance Co v SEC Donohue, Inc. (18) In that case, the supreme court held that the supplying information/negligent misrepresentation exception to the economic loss doctrine does not generally apply to engineers and architects because the focus of their work is usually providing something tangible--e.g., a building, structure, or a product--and not providing information. (19)

But what if an architect or engineer is hired to provide information and not design a building? Would the negligent misrepresentation exception then apply? This is one of the issues the Tolan court addressed.

To aid in the understanding of these issues, the Tolan court identified three types of information providers. For the first group, "pure" providers, the supplying of information does not have to encompass the business's entire undertaking, but it does have to be central to the business transaction between the parties. In this category, the end product is a set of ideas and not the documents or other objects into which the ideas are incorporated. As the court noted, "In these cases, the product is obviously information, whether about the financial market, the housing market, termite infestations, or legal or financial advice." (20)

The second group, tangible goods providers, includes businesses that supply tangible goods or noninformational goods or services. Although entities in this group may exchange information, the information relates only to the goods or services. "The end result of the enterprise," the court observed, "is some sort of tangible object." (21)

But between the pure information providers at one end and the goods or noninformational goods or services providers at the other end, there is a nebulous third group that provides both tangible goods (or noninformational goods or services) and information. Quoting General Electric Capital, Corp v Equifax Services, Inc, (22) the Tolan court wrote as follows:

   "The critical question for businesses in
   this category is whether the information is
   an important part of the product offered.
   These businesses will be deemed to be in
   the business of supplying information if
   the information furnished along with the
   non-informational goods or services is
   central to the business transactions." (23)

The court noted that under this test, "if an architect or engineer is engaged solely to provide information based upon an evaluation and the value of the services lies in its analytical work rather than a tangible end product, it could be considered to be in the business of supplying information for the guidance of others." (24)

Hypotheticals. Many land surveyors are also licensed as civil engineers or have civil engineering divisions within their surveying companies. Assume that a civil engineer is hired by a land developer to lay out a new subdivision. The engineering tasks include preparing a site plan, a storm water management design plan, a grading plan, utility plan, soil erosion control plan, and roadway and utility plans.

The engineer prepares topographical and boundary surveys. A subdivision plat is eventually drawn up and construction begins. Only after a basement is dug for one of the new homes and concrete is poured does the construction crew discover that the basement is encroaching onto an adjoining lot. The engineer had incorrectly staked out the lot. The municipality orders the land developer to remove the concrete, fill in the hole, and correctly put in the basement according to the site plan.

Using the above General Electric Capital language as a litmus test, it appears that the civil engineer would not be liable in tort for any economic loss based on its negligent misrepresentation, because the engineer was not hired solely to provide information. Of course, the engineering firm might still be liable under a breach of contract theory, but its damages would be limited by the terms of the contract.

If the contract was silent as to the determination of damages, or if there were no contract, then Illinois case law suggests that the loss is "actual loss," that is, the cost to correctly put in the basement. Actual loss would be less than economic loss; economic loss could include loss due to delays in construction, potential lost sales, a rise in construction mortgage interest rates, etc. (25)

But now change the facts. Assume that an attorney, representing a seller of a home, hires a surveyor to survey a subdivided lot. Unfortunately, the surveyor relies on erroneous lot corner monumentation; his resultant plat of survey shows the home to be five feet farther away from the lot line than it really is.

The purchaser buys the home with the expectation that he will be able to add a new driveway and garage. After the closing and after the purchaser starts construction, he discovers that the lot line is incorrectly shown on the plat of survey and that the planned driveway and garage encroach onto the neighbor's property.

In this instance, it would appear that the surveyor, as a member of the Tolan court's third group of information providers, is liable in tort for any economic loss arising from his erroneous survey, as the survey is "central" to the real estate transaction. Here, the value of the surveyor's services is his analysis of boundary line monumentation and not his plat of survey.

The facts in this second example are obviously similar to the facts in Rozny. Does the Rozny case conflict with the Moorman doctrine? No, it does not; rather, they fit together perfectly. Rozny answers the question: to whom is the surveyor liable? The Moorman doctrine answers the questions: for what and under what circumstances is the surveyor liable?

Defenses

The surveyor does have a defense against a cause of action brought under either the Rozny case or the Moorman doctrine. Section 13-222 of the Code of Civil Procedure (735 ILCS 5/13-222) provides that the surveyor is not liable for any negligence, errors, omissions, torts (which would include negligent misrepresentations), or breaches of contract in the making of any survey after more than four years have elapsed from the time the person claiming damages knew or should have known of such negligence, errors, omissions, or other actionable conduct.

Furthermore, any action against the surveyor cannot be brought if 10 years have elapsed from the time of the act or omission. However, any person who discovers the act or omission before the expiration of the 10-year period may in no event have less than four years to bring a cause of action. If a person entitled to bring the action is under the age of 18 or under a legal disability, the period of limitation does not begin to run until the person reaches 18 years of age or until the disability is removed. (26)

Conclusion

Rozny and the Moorman doctrine can be powerful tools when used against a negligent surveyor. But the surveyor's attorney is equally well armed by the ameliorating effects of 735 ILCS 5/13-222 and by the various survey standards commonly used in Illinois (see sidebar).

(1.) Congregation of the Passion, Holy Cross Province v Touche Ross & Co, 159 Ill 2d 137, 636 NE2d 503 (1994).

(2.) DuQuoin State Bank v Norris City State Bank, 230 Ill App 3d 177, 595 NE2d 678 (5th D 1992).

(3.) First Midwest Bank, NA v Stewart Title Guar Co, 218 Ill 2d 326, 843 NE2d 327 (2006); First Magnus Financial Corp v Dobrowski, 387 F Supp 2d 786 (ND Ill 2005).

(4.) 43 Ill 2d 54, 250 NE2d 656 (1969). There are very few Illinois surveyor liability cases. Besides Rozny, see Barnes v Rakow, 78 Ill App 3d 404, 396 NE2d 1168 (1st D 1979); see also Hasselbring v Lizzio, 332 Ill App 3d 700, 773 NE2d 770 (3d D 2002), a recent case that tangentially discusses surveyor liability.

(5.) See, for example, Carlotta v T. R. Stark & Associates, Inc, 57 Md App 467, 470 A2d 838 (1984); Hutchinson v Dubeau, 161 ga App 65, 289 SE2d 4 (1982); Cook Consultants, Inc v Larson, 700 SW2d 231 (Tex App, 5th D 1985). For a compilation of other surveyor liability cases, see Mark S. Dennison, JD, Surveyor's Liability for Negligent Performance of Land Survey, 59 Am Jur Proof of Facts 3d 375 et seq or Mark S. Dennison, JD, Surveyor's Liability for Mistake in, or Misrepresentation as to Accuracy of, Survey of Real Property, 117 ALR 5th 23 et seq.

(6.) Rozny at 67, 250 NE2d at 663.

(7.) In the Rozny case, the plaintiff was a "buyer's buyer." (The surveyor prepared the survey for S & S Builders, who conveyed the lot to Harold Nash, who built a home and sold it to Mr. and Mrs. Rozny.). But in Rozny, the plaintiffs were foreseeable; the court noted that the surveyor knew that the plat "would be used and relied on by others than the person ordering it, including plaintiffs." Rozny at 67, 250 NE2d at 663.

(8.) The situation described herein contemplates a different title company insuring the subsequent purchaser. But what if the same title company insured both the original buyer and the "buyer's buyer"? Clearly the title company is a foreseeable party in the first transaction. But does this title company remain foreseeable after the property is sold to the second buyer? Possibly not.

(9.) 91 Ill 2d 69, 435 NE2d 443 (1982); Mark C. Friedlander and Andrea B. Friedlander, Malpractice and the Moorman Doctrine's "Exception of the Month," 86 Ill Bar J 600 (November 1998); Timothy L. Bertschy, The Economic Loss Doctrine in Illinois After Moorman, 71 Ill Bar J 346 (February 1983); Timothy L. Bertschy, Negligent Performance of Service Contracts and the Economic Loss Doctrine, 17 J Marshall L rev 249 (Spring 1984).

(10.) First Midwest Bank, NA v Stewart Title Guar Co, 355 Ill App 3d 546, 823 NE2d 168 (1st D 2005); affd, 218 Ill 2d 326, 843 NE2d 327 (2006); hon. Sheldon Gardner and Matthew Sheynes, The Moorman Doctrine Today: A Look at Illinois' Economic-Loss Rule, 89 Ill Bar J 406, 411 (August 2001).

(11.) Perschall v Raney, 137 Ill App 3d 978, 484 NE2d 1286 (4th D 1985).

(12.) Duhl v Nash Realty, Inc, 102 Ill App 3d 483, 429 NE2d 1267 (1st D 1981).

(13.) Penrod v Merrill Lynch, Pierce, Fenner & Smith, Inc, 68 Ill App 3d 75, 385 NE2d 376 (3d D 1979).

(14.) Black, Jackson and Simmons Ins Brokerage, Inc v International Business Machines Corp, 109 Ill App 3d 132, 440 NE2d 282 (1st D 1982), overruled in part on other grounds, Fireman's Fund Ins Co v SEC Donohue, Inc, 176 Ill 2d 160, 679 NE2d 1197 (1997); see also Knox College v Celotex Corp, 117 Ill App 3d 304, 453 NE2d 8 (3d D 1983).

(15.) Gardner and Sheynes, 89 Ill Bar J at 409-10 (cited in note 10).

(16.) 60 Chi Kent L rev 182, Number 2 (1984).

(17.) 308 Ill App 3d 18, 719 NE2d 288 (1st D 1999). For a discussion of the Tolan case, see Peter J. Bedard, A Moorman-Doctrine Exception for Design Professionals and Construction Managers?, 89 Ill Bar J 412 (August 2001); Matthew Sheynes, The Changing Contours of the Illinois Tort of Negligent Misrepresentation, 90 Ill Bar J 362 (July 2002).

(18.) 176 Ill 2d 160, 679 NE2d 11907 (1997).

(19.) In this regard, see also 2314 Lincoln Park West Condo Assn v Mann, Gin, Ebel & Frazier, Ltd, 136 Ill 2d 302, 555 NE2d 346 (1990); Martusciello v JDS Homes, Inc, 361 Ill App 3d 568, 838 NE2d 9 (1st D 2005).

(20.) Tolan at 29, 719 NE2d at 297.

(21.) Id.

(22.) 797 F Supp 1432 (ND Ill 1992).

(23.) Tolan at 29, 719 NE2d at 297-98, quoting General Electric Capital, 797 F Supp at 1443.

(24.) Tolan at 30, 719 NE2d at 298.

(25.) Stein, Cottrel, and Friedlander, 60 Chi Kent L rev at 182 (cited in note 16).

(26.) For the statutes of limitation for oral and written contracts, see 735 ILCS 5/13-205 and 735 ILCS 5/13-206.

What if you represent the surveyor?

What words of advice can you offer your surveyor client?

Perform to a specific standard. First, tell him to perform his surveys pursuant to a survey standard. See, for example, 68 Ill Adm Code [section]1270.56, which details the minimum standards of practice for land surveyors. In the event a dispute arises, the parties should be able to determine if the matter is covered by the applicable survey standard. If the issue falls outside the purview of the standard, the surveyor should be able to disclaim liability. See, e.g., the Minimum Standard Detail Requirements for ALTA/ACSM Land Title Surveys that can be found at either www.alta.org or www.acsm.net.

Example: A homeowner claims the surveyor performed negligently because the boundary survey did not show a recorded grant of easement. The surveyor was asked to survey lot 1 in Blackacre Subdivision. The plat of this subdivision was recorded in 2000. The grant of easement was recorded in 1990.

Paragraph 6(L) of the Illinois standards for boundary surveys (as set forth in the above Administrative Code section) provides that "if the survey is a parcel in a recorded subdivision, any adjacent rights of way or easements and setback lines shown on the recorded plat that affect the subject parcel are to be shown and dimensioned." Because the surveyor has no duty under the boundary survey standards to show the non-platted grant of easement, he was not negligent in preparing his plat of survey.

It might be more difficult for the surveyor to disclaim liability if he used a Rozny or a "guarantee" type of certification, e.g., "I hereby certify that I have surveyed the tract of land above described and that the hereon drawn plat is a correct representation thereof."

What is a "correct" survey? With no survey standards to guide the court, it would probably have to look to see how surveyors in the same community as the defendant would survey the land. If the disgruntled homeowner could provide expert witnesses who could testify that a surveyor in the community would normally show this grant of easement on his plat of survey, it might be more difficult for the defendant surveyor to successfully argue that he had no duty to disclose the easement.

State facts, not legal conclusions. The attorney should also tell his or her surveyor client to disclose only facts on his plat of survey and not legal conclusions. For example, the surveyor should show the location of physical improvements on his survey.

The surveyor should not, however, state on the plat that "although there is no access to the land in question, the homeowner has advised me that he has been using the adjoining private driveway for 25 years and that therefore he has acquired a prescriptive easement over said driveway." Only a court can determine if a prescriptive easement exists, and this determination is not always easy. For example, permission to use the land negates a prescriptive easement. See Radke v Independence Tube Corp, 301 Ill App 3d 713, 704 NE2d 72 (3d D 1998).

If a title company relies on such a survey and does not raise a "no access" exception, the title company, as a foreseeable third party under Rozny, might be entitled to bring a cause of action against the surveyor in the event the title company suffers a claim. In short, the surveyor should show (pursuant to the applicable survey standard) all boundary line inconsistencies, evidence of adverse occupation, and other survey-related matters and let the parties to the transaction decide how to resolve these issues.

Draft legal descriptions carefully. Poorly drafted and ambiguous legal descriptions can be the bane of the surveyor. The attorney should make sure that the surveyor carefully reviews all legal descriptions before they are added to a survey; the surveyor should not blindly parrot the description the title company gives him.

Consider, for example, this description: "the Northwest quarter of the Southwest quarter of Section 9, except that property taken or dedicated for roadway purposes." Has the surveyor searched the public records in an attempt to track down all recorded dedications? What about unrecorded dedications? (See PA 93-183, codified at 605 ILCS 5/6-315, as amended, which provides that an entry in the records of a district clerk, stating that there has been a dedication of a public highway according to statutory requirements, shall be prima facie evidence of a statutory dedication.)

The surveyor should amend this description to refer to specific dedications or takings; alternatively, the surveyor should indicate on the survey that all dedications noted on the plat are disclosed pursuant to copies of documents furnished the surveyor. Otherwise, the surveyor may be liable in the event he fails to show evidence of a dedication on his survey.

Use a written contract. The attorney should advise a surveyor client to perform all his surveys pursuant to a written contract. In light of the Rozny decision, the contract should include a statement that the surveyor should be furnished the names of the purchaser, lender, and title company, as the surveyor will be certifying his survey to these parties.

In addition, the contract should include a phrase similar to the following: "[Surveyor] should be advised if any third parties other than the purchaser, lender, or title company will be relying on this survey. If so, their name[s] should be furnished to [Surveyor] so that their name[s] can be added to the survey certification." Pursuant to 735 ILCS 5/13-222, a copy of this contract should be retained by the surveyor for at least 14 years.

For a case holding that the scope of the defendant civil engineer's duty was defined by his contract, see Ferentchak v Village of Frankfort, 105 Ill 2d 474, 475 NE2d 822 (1985)

Use Limitation-of-liability clauses? Should the attorney include a "limitation of liability" clause in the contract (or on the survey) similar to that found in many home inspectors' contracts? For example: "The undersigned parties to this contract agree that the maximum liability incurred by--Surveying Company for its errors and omissions in the fieldwork and drafting of this plat of survey shall be limited to the fee paid for said survey."

Such a broad exculpatory clause might not pass judicial muster. A court would probably hold that a surveyor contracting to survey a parcel of land cannot exculpate herself from liability for a breach of that duty. See, for example, Jewelers Mutual Ins Co v Firstar Bank Illinois, 213 Ill 2d 58, 820 NE2d 411 (2004).

Use the proper certificate. The surveyor's survey certificate should be consistent with the type of survey being performed. For example, a topographical or foundation survey might not necessarily disclose boundary issues, such as an encroaching fence or walkway. However, if the surveyor appends a standard form boundary survey certificate to such a survey, the surveyor would be liable in the event there was an undisclosed boundary problem.

Dick Bales is assistant regional counsel for the Wheaton office of Chicago Title Insurance Company. He acknowledges the assistance of Steven B. Bashaw, John F. Dixon, Douglas M. Karlen, Scott E. Pointner, Carol A. Watkiss, and Win Wehrli in the preparation of this article.