Washington Law Review

Comment

Clarifying Washington's Approach to the Independent Duty Doctrine

June 01, 2020 | 95 Wash. L. Rev. 1091

Abstract: When faced with limited or no recovery under contract law, resourceful lawyers often turn to tort law. The economic loss rule restricts this practice by barring recovery in tort for solely economic losses. However, what qualifies as “economic loss” is not always clear. In 2010, the Washington State Supreme Court announced it was clarifying the economic loss rule by adopting the independent duty doctrine. Rather than analyze the type of loss suffered, the independent duty doctrine determines whether a party owed a tort duty independent of the relevant contract, closely mirroring a traditional tort inquiry. When establishing the independent duty doctrine, the court left intact cases decided under the economic loss rule and the rule’s general role as “the boundary between torts and contract [law].”

However, the very nature of these two rules conflict. Upholding both rules has led to bitterly split opinions from the Washington State Supreme Court and confusion among litigants and other courts. This Comment argues that the court’s construction of the independent duty doctrine generally, and its decision to maintain the economic loss rule’s theory and jurisprudence, has resulted in misapplication of the independent duty doctrine by litigants and within other courts. It proposes that the Washington State Supreme Court clarify the doctrine by abrogating the state’s economic loss rule jurisprudence and re-framing the independent duty doctrine analysis around when tort duties can be assumed in a contract.

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