Since the Washington Supreme Court's decision in Alejandre v. Bull in 2007, a plaintiff was generally prohibited from recovering money damages in tort (e.g. a claim based on negligence) if (a) the plaintiff and defendant had a contract and (b) the tort arose out of the subject matter of that contract. Dubbed the "Economic Loss Rule," the logic was to encourage parties in a contractual relationship to allocate the risk of loss in the contract. For example, in Alejandre, the Supreme Court precluded homebuyers from pursuing a negligence claim against their seller when the septic tank turned out to be defective. Instead, the buyers were limited to whatever claims they had under their contract with the sellers.
However, in November 2010, the Washington Supreme Court replaced the Economic Loss Rule with the "Independent Duty Doctrine" in deciding Eastwood v. Horse Harbor Foundation and Affiliated FM Ins. Co. v. LTK Consulting. Under the Independent Duty Doctrine, "the availability of a tort remedy depends on the existence of a tort duty arising independently of a contract's negotiated terms, not on whether an injury can be labeled an economic loss." In Eastwood, a landlord brought claims against his tenant for breach of contract (i.e. breach of the lease), but also brought a claim for the tort of waste. The Supreme Court allowed the landlord to go forward with the tort claim because it found the tenant owed the landlord a duty not to commit waste which was independent of the parties' duties to each other under the lease.
In conclusion, plaintiffs should generally bring any tort claim they might have, even if they are also bringing contract claims. Under the Independent Duty Doctrine, those tort claims have a better chance succeeding than they did under the Economic Loss Rule.
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