holding that the independent duty doctrine did not bar a property owner’s negligent misrepresentation claim against a potential buyer of property when the trial court made no findings regarding whether the buyer’s alleged duties arose independently of the contract
How later courts described this case
- holding that the independent duty doctrine did not bar a property owner’s negligent misrepresentation claim against a potential buyer of property when the trial court made no findings regarding whether the buyer’s alleged duties arose independently of the contract
Written by the judges who cited it.
The opinion
Quinn-Brintnall, J.
¶54 (concurring) — While I concur with my colleagues, I write separately to stress that we accepted discretionary review of this case solely to determine whether the former “economic loss” rule — now the independent duty doctrine — requires dismissal of Key Development Investment and Trinity Glass International’s claims against the Port of Tacoma. But our Supreme Court has “directed lower courts not to apply the [independent duty] doctrine to tort remedies ‘unless and until [the Washington Supreme Court] has, based upon considerations of common sense, justice, policy and precedent, decided otherwise.’ ” Elcon Constr., Inc. v. E. Wash. Univ., 174 Wn.2d 157, 165 , 273 P.3d 965 (2012) (quoting Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 417 , 241 P.3d 1256 (2010) (plurality opinion) (Chambers, J., concurring)). Although our Supreme Court’s independent duty doctrine jurisprudence is woefully unclear, the only rational reading of Eicon is that lower courts should presume that a tort duty exists unless and until the Washington Supreme Court has de *33 cided otherwise. Accordingly, remand is required in this case. 57
Despite this result, I agree with my colleague, Judge Van Deren, in believing that “forbidding the trial courts and intermediate appellate courts from developing answers” whenever the independent duty doctrine is implicated “unnecessarily delays clarification of the law with regard to tort claims in the contract context.” Austin v. Ettl, 171 Wn. App. 82 , 96 n.15, 286 P.3d 85 (2012) (Van Deren, J., dissenting).