This article argues for a robust independent duty defense for claims arising in the construction context against design professionals absent a countervailing consumer protection justification. The black letter economic loss rule—now known in Washington as the independent duty doctrine—is seemingly simple: absent personal injury or property damage, recovery is unavailable in tort. In Washington, the rule has been applied in three distinct contexts: product liability, real estate, and construction.
In 2010, the Washington Supreme Court decided two cases that shifted the focus of the rule from the type of loss incurred to the source of the duty violated. These cases are Eastwood v. Horse Harbor Foundation, Inc. and Affiliated FM Insurance Co. v. LTK Consulting Services, Inc. These decisions have created significant uncertainty in the law regarding the proper application of the rule, particularly in the area of construction law. As the dissent in Affiliated states, “[t]he lead opinion’s huge assumptions lead to its lengthy and misleading analysis which is likely to muddle the entire area of law.” Bruner & O’Connor on Construction Law seems to agree, explaining that the Washington Supreme Court has “engage[d] in extraordinary intellectual gyrations to distinguish, marginalize with exceptions, or reject outright the economic loss doctrine in order to reach what . . . [it] perceived to be a fair result.”
This article first sets forth the comprehensive economic loss rule and independent duty doctrine jurisprudence under Washington law. This jurisprudence has been built upon three distinct areas of the law: product liability, real estate, and construction. The article then outlines the contours of the independent duty doctrine, argues for a robust independent duty doctrine defense in the construction context absent a countervailing consumer protection justification—even absent contractual privity—and suggests that a tort standard of care ought to be read into a contract where one is absent from the contract’s express terms.