A. [§ 3.98] Duty

• Jurisdiction: Maryland

A. [§ 3.98] Duty

With the development of the tort of negligent misrepresentation and its application to commercial transactions, courts have engaged in discussion about when parties owe a duty of care to one another. This issue becomes more focused when courts review arm's-length negotiations and a claim that during such negotiations, one party misrepresented to the other. Some courts have been unwilling to entertain actions for negligent misrepresentation arising from an arm's-length contractual relationship, particularly in a commercial setting. See Blue Circle Atl., Inc. v. Falcon Materials, Inc., 760 F. Supp. 516 (D. Md. 1991), aff'd, 960 F.2d 145 (4th Cir. 1992) (Smalkin, J.); Flow Indus. v. Fields Constr. Co., 683 F. Supp. 527 (D. Md. 1988) (Motz, J.). But see Banca Del Sempione v. Provident Bank, 75 F.3d 951 (4th Cir. 1996), dismissed in part, mot. denied on reh'g, 85 F.3d 615 (4th Cir. 1996) (calling into question the continued vitality of such cases, while the requirement of an "intimate nexus" between the parties to create a duty of care continues to enforce some distinction between tort and contract actions).

In Weisman v. Connors, 69 Md. App. 732, 519 A.2d 795 (1987), rev'd on other grounds, 312 Md. 428, 540 A.2d 783 (1988), the Maryland Court of Appeals held that for a duty of care to exist giving rise to the tort of negligent misrepresentation, there must be a finding of privity or its equivalent. Although the precise degree of the relationship required to exist cannot be generalized, an intimate nexus satisfied by contractual privity or its equivalent must exist for the finding that one owed a duty of care to another when the risk of failure to exercise such care is economic loss. Id., 540 A.2d 783; Walpert, Smullian & Blumenthal, P.A. v. Katz, 361 Md. 645, 762 A.2d 582 (2000) (accountant); Lubore v. RPM Assocs., 109 Md. App. 312, 674 A.2d 547 (1996); Giant Food, Inc. v. Ice King, Inc., 74 Md. App. 183, 536 A.2d 1182 (1988); see Parker v. Columbia Bank, 91 Md. App. 346, 604 A.2d 521 (1992). When, however, the risk of failure to exercise due care is personal injury, no direct relationship is required and foreseeability is the determining factor of whether a duty of care exists...