Avoiding Tort Liability in Breach of Contract Actions

Leveraging the Independent Tort and Economic Loss Doctrines and Mitigating Risk with Effective Contract Provisions

Recording of a 90-minute CLE webinar with Q&A

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Conducted on Thursday, October 31, 2013

Recorded event now available

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Course Materials

This CLE course will review recent cases in which breach of contract actions morphed into tort claims, the potential damages exposure for contracting parties under tort law, the application of the economic loss and independent tort doctrines as defense strategies, and contracting strategies to minimize tort liability.


In breach of contract litigation, damages are generally limited to those the parties contemplated or that were reasonably foreseeable at the time the contract was entered. In recent years, however, courts have become more willing to allow tort claims and remedies in breach of contract actions.

When breach of contract cases transform into tort claims, the non-performing party's potential liability increases significantly, including possible punitive or treble damages. Defense counsel must understand how to leverage the independent tort or economic loss doctrine as a potential bar to tort recovery.

Parties should also use waivers of subrogation, limitation of liability provisions, and indemnity and other contract clauses to allocate risk and reduce tort exposure in the event the contract is breached.

Listen as our authoritative panel of litigators discusses the increase in breach of contract claims that seek recovery under tort law, the economic loss and independent loss doctrines as a defense strategy in tort cases, and key clauses to include in commercial contracts to reduce tort liability.



  1. Distinguishing between a contract claim and a tort claim
  2. Application of independent tort doctrine
  3. Application of the economic loss rule
  4. Minimizing tort liability with strong contractual terms


The panel will review these and other key questions:

  • Under what circumstances might a plaintiff state a claim in tort law arising from non-performance of a contractual duty?
  • What are the potential liability risks facing a party sued under tort law for breach of contract?
  • How can the economic loss doctrine and independent tort doctrine be used as a shield to defend against tort claims arising from breach of contract?
  • How have attorneys used waivers of subrogation, limitation of liability and indemnity clauses to help mitigate the risk of tort liability for breach of contract?

Following the speaker presentations, you'll have an opportunity to get answers to your specific questions during the interactive Q&A.


Amy G. Doehring
Amy G. Doehring

McDermott Will & Emery

Ms. Doehring handles a variety of complex litigation matters and has tried cases before federal and state courts, as...  |  Read More

Eblen, Charles
Charles C. Eblen

Shook Hardy & Bacon

Mr. Eblen is a creative and adaptive trial and appellate lawyer who represents clients in diverse jurisdictions across...  |  Read More

Robert E. Byrne, Jr.
Robert E. Byrne, Jr.


Mr. Byrne is a litigator who handles claims involving breach of contract, employment litigation, wrongful discharge,...  |  Read More

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