An injury is remediable in tort if it traces back to the breach of a tort duty arising independently of the terms of the contract. Using ordinary tort principles, the court decides as a matter of law whether the defendant was under an independent tort duty. In the law of negligence, a duty of care is defined as an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.
The engineering firm worked on monorail maintenance. After a fire ignited on a monorail train, plaintiff insurer, which was the monorail system operator's subrogee, sued defendant engineering firm in state court for negligently causing the fire.
Can a monorail operator (or its subrogee), which did not own the monorail, bring a tort action against an engineering firm, even though the parties were not in privity of contract?
The monorail operator could sue the engineering firm for negligence. The engineering firm, by undertaking engineering services, assumed a duty of reasonable care. This obligation required the engineering firm to use reasonable care with respect to risks of physical damage to the monorail. The fire endangered people and caused extensive physical damage to property. Given the safety interest that justified imposing a duty of care on engineers, the engineering firm was obligated to act as a reasonably prudent engineer would with respect to safety risks of physical damage. The monorail operator enjoyed legally protected interests in the monorail, and the engineering firm's duty encompassed these interests. By subrogation to the monorail operator's rights, the insurer could pursue a claim for negligence against the engineering firm.