Plaintiffs In Washington State May Pursue Tort Lawsuits More Easily, Even When There Is A Contract

Posted: Jan 27, 2014

By: Washington State Litigation, Business and Real Estate Law Lawyer William O. Kessler


In the 2010 case Eastwood, the Washington Supreme Court set forth the Independent Duty Doctrine (the “IDD”).  Under the IDD, when two parties had a contract together, one could only sue the other for a “tort” (such as negligence or fraud) if the tort claim “traces back to the breach of a tort duty arising independently of the terms of the contract.” Eastwood v. Horse Harbor Found., Inc., 170 Wn.2d 380, 389, 241 P.3d 1256 (2010).

The IDD was a roadblock to a plaintiff suing for a tort claim when there was also a contract involved.  However, under the recent Court of Appeals case Hendrickson and the Supreme Court caseDonatelli, courts can now only apply the IDD hurdle to a very narrow range of cases, specifically matters involving real estate construction and real estate sales. Hendrickson v. Tender Care Animal Hosp. Corp., 176 Wn. App. 757, 312 P.3d 52 (2013)Donatelli v. D.R. Strong Consulting Eng’rs, Inc., 179 Wn.2d 84, 312 P.3d 620 (2013).

In non-real estate matters, lawsuits can now seek money damages for torts regardless of whether a defendant’s tort duties arose independent of his contract duties.  Examples of such possible tort claims include (but are not limited to) interference with a contractual relation, wrongful discharge, failure of an insurer to act in good faith, fraudulent concealment, negligent misrepresentation and breach of an agent’s fiduciary duty.  Even in the real estate construction and real estate sale settings, the plaintiff may bring a tort claim separately from a breach of contract claim if the plaintiff shows the defendant’s duty not to commit the tort arose independent of the defendant’s contractual duties.

Hendrickson and Donatelli give Washington plaintiffs greater litigation leverage and increased avenues to recovery of their financial losses.

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