IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARK FANSLER and LINDA 

GOLDSTEIN, 

 Plaintiffs, 

v. 

NORTH AMERICAN TITLE 

INSURANCE COMPANY, R. 

MATTHEW LONGO, LONGO &

ASSOCIATES, L.P., RICHARD M. 

LONGO, HILLCREST ASSOCIATES, 

INC. and GLOBAL TITLE, INC., 

 

 Defendants.

 

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) C.A. No.: N17C-09-015 EMD

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MEMORANDUM OPINION GRANTING DEFENDANTS RICHARD M. LONGO AND 

HILLCREST ASSOCIATES, INC.’S MOTION FOR SUMMARY JUDGMENT ON THE 

ISSUE OF NEGLIGENCE PER SE

Defendants Richard M. Longo and Hillcrest Associates, Inc. (collectively, “Surveyor”)

filed Defendants Richard M. Longo and Hillcrest Associates, Inc.’s Motion for Summary 

Judgment (the “Motion”). Plaintiffs Mark Fansler and Linda Goldstein (“Plaintiffs”) opposed 

the Motion and filed Plaintiffs’ Opposition to Richard M. Longo and Hillcrest Associates, Inc.’s 

Motion for Summary Judgment (the “Opposition”). For the reasons set forth below, the Court 

will GRANT the Motion as to the need for expert testimony to demonstrate breach and 

causation. 

INTRODUCTION

The Court issued an opinion on the Motion on May 12, 2020 (the “Decision”). The Court 

denied in part the Motion, finding that a question of fact existed as to whether the Plaintiffs’ 

claim against the Surveyor was barred by the applicable statute of limitations. The Court 

reserved decision on the issue of whether Plaintiffs can rely on negligence per se in their claim 
2

against Surveyor. The Court asked for additional briefing by June 2, 2020. On June 24, 2020, 

the Court heard additional argument on the negligence per se issue. The Court then took the 

Motion under advisement. 

The Complaint states a single cause of action against Surveyor. According to Plaintiffs, 

Surveyor acted negligently by failing to obtain the required written waiver from Plaintiffs to not 

set corner markers on the property located at 1805 Walnut Street, Wilmington, DE 19809 (the 

“Covered Premises”). Thereafter, Surveyor relied on improperly placed iron pins. Surveyor 

then compounded this error by “...improperly rel[ying] upon the boundary information taken 

from a deed of record recorded in the Office of Recorder of Deeds in and for New Castle 

County.”1 

Plaintiffs allege that Surveyor and Matthew Longo, Esquire, worked together to obtain an 

easement, develop a mortgage survey plan (“MSP”), a revised MSP, and a legal description that, 

as of May 21, 2015, showed a twenty-foot easement for access and public utilities for the 

Covered Premises. Surveyor and Mr. Longo completed this work on or about June 9, 2015. 

Despite this, the Covered Premises remained landlocked because the easement obtained still did 

not provide access. Plaintiffs contend that this result is based, in part, on the Surveyor’s 

negligence in conducting his work on the Covered Premises.

PARTIES’ CONTENTIONS

Surveyor argues that Plaintiffs have failed to provide evidence that “any breach of any 

duty owed by Surveyor[ ] caused the alleged damages.” Surveyor contends that Plaintiffs have 

not demonstrated that Surveyor’s MSPs did not accurately reflect the actual state of the Covered 

Premises. Moreover, Surveyor claims that Plaintiffs have no expert that will opine to any breach 

 

1 2d Am. Compl. at ¶ 39.
3

of a relevant standard of care by Surveyor. Surveyor notes that Plaintiffs’ expert report from 

Carmine F. Casper (Plaintiffs’ Expert) contains no criticism of Surveyor’s work or an opinion 

that Surveyor’s purported negligence was the proximate cause of Plaintiffs’ injury.

Plaintiffs contend that their negligence claim is sustainable. Plaintiffs are relying entirely 

on negligence per se. Plaintiffs argue that Surveyor violated applicable rules and regulations 

relating to professional surveyors pursuant to Chapter 27 of Title 24 of the Delaware Code.2 

Plaintiffs contend that Surveyor’s failure to obtain a waiver violated Regulation 12.7 of the 

Regulations for the Board of Professional Land Surveyors (the “Board”). Plaintiffs state that this 

violation plus testimony from Mr. Fansler and Plaintiffs’ Expert is enough to show a breach of 

the applicable standard of care, causation and damages. 

DISCUSSION

In Delaware, “the violation of a statute or ordinance enacted for the safety of others is 

negligence in law or negligence per se.”

3

 Violations of mandated regulations by authorized 

agencies have the force of law.4 “On a claim for negligence per se, a party must make a fourpart showing.”

5

 First, the party “must show that the statute in question was enacted for the safety 

of others.”

6

 Next, the party “must demonstrate a causal connection between the statutory 

violation and the injury, and, that [the party] was a member of the class of persons the statute set 

out to protect.” 7 Then, the party “must show that the statute set forth a standard of conduct 

 

2

Id. at ¶¶ 12-13.

3 Sammons v. Ridgeway, 293 A.2d 547, 549 (Del. 1972).

4

Id. 

5 NVF Co. v. Garrett Snuff Mills, Inc., 2002 WL 130536, at *2 (Del. Super. Jan. 30, 2002). 

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Id. (citing Sammons, 293 A.2d at 549).

7

Id. (citing Sammons, 293 A.2d at 549.
4

which was designed to avoid the harm [the party] suffered.”

8

 Finally, the party “must show that 

[the other party] violated the statute by failing to comply with that standard of conduct.”

9

 

Plaintiffs support their negligence per se claim on regulations promulgated by the Board, 

specifically Regulation 12.1 and 12.7. In the Decision, the Court provided that it was not 

convinced that Plaintiffs can meet this four-part test as it relates to Regulation 12.7 being a 

statute/regulation enacted for the safety of others. The Court noted that its confusion on the 

matter was not the fault of the parties. The parties’ attorneys did a good job of presenting and

arguing issues to the Court. Rather, the Court failed to follow up on points regarding negligence 

per se, focusing, instead, on matters relating to proximate cause and damages.

After reviewing the supplemental briefing and hearing from the parties, the Court holds 

that Plaintiffs cannot rely on negligence per se with respect to claims against Surveyor. The 

Supreme Court, in Tydings v. Loewenstein, 505 A.2d 443 (Del. 1986), has held that the licensing 

statutes found in 24 Del. C. § 2701 et seq. do not define a standard of care and a violation of the 

statutes cannot constitute negligence per se. Id. at 446. In Tydings, the trial court refused to 

instruct the jury on negligence per se. The plaintiff appealed. The Supreme Court affirmed and 

stated the statutes involved—24 Del. C. §§ 2701 and 2802—were licensing statutes which do not 

define a standard of conduct. The Supreme Court found that fatal to plaintiff’s argument that a 

violation of those statutes constituted negligence per se. Accordingly, the Supreme Court 

upheld the Court’s decision not to provide a negligence per se instruction.

Plaintiffs do not address the holding in Tydings. Instead, Plaintiffs argue that the Board 

promulgated regulations that Surveyor failed to follow and that constitutes the negligence per se. 

 

8 D’Amato v. Czajkjowsksi, 1995 WL 945562, at *2 (Del. Super. Oct. 26, 1995) (citing Wealth v. Renai, 114 A.2d 

809, 810–11 (Del. Super. 1955)).

9 NVF Co., 2002 WL 130536, at *2 (citing Carroll v. Getty Oil Co., 498 F.Supp. 409, 412–13 (D. Del. 1980)).
5

Surveyor counters by contending that the General Assembly did not grant the Board the power to 

create private causes of action. As such, a violation of a regulation promulgated by the Board 

cannot constitute negligence per se. 

The Court agrees with the argument forwarded by Surveyor. The statute does not 

provide the Board with the authority to grant a private cause of action for a violation of Board 

promulgated regulations. See, e.g., O’Neill v. Town of Middletown, 2006 WL 4804652 (Del. Ch. 

Jan. 18, 2006). In O’Neill, the Court of Chancery reviewed 17 Del. C. §§ 131 and 508. The 

Court of Chancery noted that neither statute provided for the creation of an express or implied 

private right of action. Id. at *26. Section 508 contained the following language: 

[i]n order to carry out the purpose of this section, the Department shall make and 

publish rules, regulations, standards and/or specifications for planning, designing, 

constructing and maintaining any new road or street. Id. 

The Court of Chancery held that this language only provides the agency with the power to adopt 

regulations and fail to indicate any intent to create either a right or remedy for plaintiffs. Id. 

The language in Section 508 is similar to the language contained in 2706(c). Subsection 

(c) provides: 

The Board may establish minimum technical or general standards to regulate the 

practice of land surveying within the state and may establish minimum 

requirements for the continuing education of registrants. 

The language of Section 2706(c) further demonstrates that 24 Del. C. § 2701 et seq. is a licensing 

statute and not one defining a standard of care or one creating a private cause of action. In 

addition, nothing in the statute indicates any intent to confer to the Board the power to create 

private rights or remedies. Plaintiffs citation to Regulation 12.1 does not alter this analysis. The 

regulations are the way that the Board enforces surveyor licensing and standards but that does 

not mean that the General Assembly authorized the Board to create private remedies. Without 
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the statutory power to create a private right or remedy, the Board cannot do that through the 

language of a particular regulation.

If Plaintiffs’ claim against the Surveyor went to trial, the Court could not—given the 

decision in Tydings—instruct the jury as to negligence per se. Unlike in Sammons v. Ridgeway, 

293 A.2d 547 (Del. 1972), or Capital Management Co. v. Brown, 813 A.2d 1094 (Del. 2002), the 

Supreme Court has already addressed and held that violations of Title 24 do not constitute 

negligence per se. Plaintiff has failed to demonstrate that Tydings is not controlling here or is 

otherwise distinguishable. Moreover, as Plaintiff has developed their argument on Count II, the 

Court has become convinced that expert testimony would be necessary to show that failing to 

abide by Regulation 12.7 was the proximate cause of Plaintiffs’ injury. 

CONCLUSION

The Court holds that violation of Regulation 12.7 does not constitute negligence per se. 

As conceded, Plaintiffs have provided no other testimony demonstrating that Surveyor breached 

a standard of care proximately causing injury. Accordingly, Surveyor is entitled to summary 

judgment. The Motion is GRANTED and JUDGMENT is entered in favor of Surveyor on 

Count II of the Second Amended Complaint.

IT IS SO ORDERED. 

Dated: September 29, 2020

Wilmington, Delaware

/s/ Eric M. Davis

Eric M. Davis, Judge

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