Triangular Torts and Fiduciary Duties

in Andrew Gold & Paul B. Miller, Contract, Status and Fiduciary Law (2016, Forthcoming)

Fordham Law Legal Studies Research Paper No. 2770722

Harvard Public Law Working Paper No. 16-31

30 Pages Posted: 27 Apr 2016 Last revised: 23 Jun 2016

See all articles by John C. P. Goldberg

John C. P. Goldberg

Harvard Law School

Benjamin C. Zipursky

Fordham University School of Law

Date Written: April 26, 2016

Abstract

When a professional is negligent in providing services to her client or patient, third parties are sometimes harmed. “Triangular torts,” as we call them, are negligence claims brought against professionals by such third parties. One common example involves a father suing a therapist for inducing his daughter to have false memories of childhood abuse, thereby causing him emotional harm. Another involves a nephew suing a lawyer for incorrectly drafting his aunt’s will, thereby causing him financial loss. Despite the general decline of privity limits on negligence liability, courts frequently reject triangular tort claims, ruling that professionals do not owe duties of care to third parties. In this chapter, we explain when such rulings are warranted — and when they are not. The answer turns on whether the recognition of a duty of care to the third party is consistent with the professional’s fiduciary duty of loyalty to the client or patient.

Keywords: Duty, Attorneys, Clients, False Memories, Fiduciary, Foreseeability, Loyalty, Malpractice, Negligence, Recovered Memories, Physicians, Privity, Professionals, Therapists, Therapy, Torts, Triangular Torts

Suggested Citation

Goldberg, John C. P. and Zipursky, Benjamin C., Triangular Torts and Fiduciary Duties (April 26, 2016). in Andrew Gold & Paul B. Miller, Contract, Status and Fiduciary Law (2016, Forthcoming), Fordham Law Legal Studies Research Paper No. 2770722, Harvard Public Law Working Paper No. 16-31, Available at SSRN: https://ssrn.com/abstract=2770722 or http://dx.doi.org/10.2139/ssrn.2770722

John C. P. Goldberg (Contact Author)

Harvard Law School ( email )

Areeda 232
1545 Massachusetts Ave
Cambridge, MA 02138
United States
617-496-2086 (Phone)

Benjamin C. Zipursky

Fordham University School of Law ( email )

140 West 62nd Street
New York, NY 10023
United States

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