Barmat v. John and Jane Doe Partners A-D
In Barmat v. John and Jane Doe Partners A-D, 155 Ariz. 519, 747 P.2d 1218 (1987), the plaintiff argued that its successful tort claim for legal malpractice arose out of its contract for legal services because the law implies a duty of due care into every professional contract.
The supreme court, however, held that the breach of such legally implied duties sounds in tort, not contract.
It pointed out that the insurance bad faith claim in Sparks "could not have existed 'but for' the breach of agreements, express or implied, in the contract of indemnity." Id. at 522, 747 P.2d at 1221.
In contrast, the duties imposed on attorneys exist even in the absence of contract and may extend to all persons within the foreseeable range of harm.
The court explained:
Where the implied contract does no more than place the parties in a relationship in which the law then imposes certain duties recognized by public policy, the gravamen of the subsequent action for breach is tort, not contract.
Id. at 523, 747 P.2d at 1222. Barmat expressly rejected the contrary analysis of Trebilcox v. Brown & Bain, 133 Ariz. 588, 653 P.2d 45 (App. 1982). See Barmat, 155 Ariz. at 524, 747 P.2d at 1223.
The Barmat case itself shows that the "legal duty" analysis is not restricted to "special relationships" such as attorney-client or doctor-patient.
The court noted:
Consider, for example . . . the seller of a chattel that causes damage. If the chattel was defective and unreasonably dangerous . . . the injured buyer may maintain a tort action under the theory of strict liability. Here, too, although the relationship between buyer and seller arose out of a contract, the essential nature of the action sounds in tort: the liability of the seller would exist even without the contract. Even a "mere bystander" having no contractual relationship could recover from the seller. The duty breached is one imposed by law. Barmat, 155 Ariz. at 523 n.1, 747 P.2d at 1222 n.1.
Barmat's rationale applies whenever the law imposes a duty of care on a party regardless of the existence of a contract.