Biakanja v. Irving

Supreme Court of California · Torts

TortsNegligenceDutyPrivityThird-Party Liabilitynegligencedutyprivity

Facts

Plaintiff's brother died leaving a will that devised all of his property to plaintiff, but the will was denied probate because it lacked sufficient attestation. Defendant, a notary public and not an attorney, prepared the will, notarized it, and undertook to prepare a valid will, but the witnesses were not present when the testator signed, did not sign in each other's presence, and the testator did not acknowledge his signature in their presence. The trial court found that defendant negligently failed to have the will properly attested. Because the will was invalid, plaintiff received only one-eighth of the estate by intestate succession instead of the whole estate.

Issue

Whether a notary public who undertook to prepare and supervise execution of a valid will owed a duty of due care to the intended beneficiary of that will, even though the beneficiary was not in privity of contract with the notary. More broadly, the question was whether plaintiff could recover for economic loss caused by defendant's negligent performance of his undertaking.

Rule

The determination whether a defendant is liable to a third person not in privity for negligent performance of a contract is a matter of policy requiring a balancing of factors, including: the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injury, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Sacramento, Elena Ruiz paid Martin Cole, a licensed notary but not a lawyer, to prepare and supervise execution of a document leaving her entire estate to her nephew, Diego Ruiz. Martin failed to ensure the required witnesses signed properly, and after Elena died, the document was ineffective, so Diego received only a small intestate share.

If Diego sues Martin for negligence, which argument most strongly supports finding that Martin owed Diego a duty despite the lack of privity?

Explanation. Duty to a nonprivity third party turns on policy factors, including whether the transaction was intended to affect the plaintiff, foreseeability, certainty of injury, closeness of connection, moral blame, and prevention of future harm. Here, Diego was the direct object of the undertaking, and the invalid execution caused the precise economic loss that was foreseeable. (Derived from Biakanja v. Irving (n.d.).)