The Concept of Tort Duty in Maryland
In Jacques v. First National Bank, 307 Md. 527, 515 A.2d 756 (1986), the Court of Appeals examined the concept of tort duty at length, writing:
The duty with which we are here concerned is a duty imposed by law as a matter of sound policy, for the violation of which a person may be held to respond in damages in tort. This duty is conveniently, if not lyrically, referred to as a "tort duty." A tort duty does not always coexist with a moral duty. Neither must a duty imposed by statute necessarily create a tort duty. Nor does a duty assumed or implied in contract by that fact alone become a tort duty.
The mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort.
Still, while every contractual duty does not also impose a tort duty, where a contractual relationship exists between persons and at the same time a duty is imposed by or arises out of the circumstances surrounding or attending the transaction, the breach of such duty is a tort and the injured party may have his remedy by an action on the case, or he may waive the tort and sue for the breach of the contract.
In determining whether a tort duty should be recognized in a particular context, two major considerations are: the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties. Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent. By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability. (307 Md. at 533-35.)
In sum, the recognition of an actionable tort duty between parties is ultimately a policy decision made by analyzing the nature of the relationship and the alleged harm.
Maryland has generally required strict privity in attorney malpractice actions. See generally Flaherty v. Weinberg, 303 Md. 116, 127-31, 492 A.2d 618 (1985).
This test requires a malpractice plaintiff to prove "(1) the attorney's employment; (2) his neglect of a reasonable duty; and (3) loss to the client proximately caused by that neglect of duty." Id. at 128 (citing Kendall v. Rogers, 181 Md. 606, 613, 31 A.2d 312 (1943)).