The above-mentioned elements for negligence are required in addition to wanton conduct with conscious or reckless disregard for the rights and safety of others. Gross Negligence goes beyond mere negligence. In one case, the court found a real estate agent had a fiduciary duty to “exercise reasonable care, skill, and diligence in a transaction of business entrusted to him, he will be responsible to his principal for any loss resulting from his negligence in failing to do so.” There, the “fiduciary duty” was used to describe a duty to exercise care generally, rather than an actual breach of fiduciary duty claim. ![]() As such, it is entirely possible that someone can allege negligence without a breach of fiduciary duty. The duty of care encompasses numerous legal obligations outside of fiduciary duties. The statute excludes, “professional services by a member of a learned profession” in its definition of “commerce.” If a plaintiff proves this claim, the statute provides for treble damages – an amount triple that of the actual or compensatory damages – and for an award of attorneys’ fees, at the discretion of the court.Ī negligence claim is established when: (i) the defendant owed the plaintiff a duty of care (ii) the defendant breached that duty of care and (iii) the defendant’s breach was the actual and proximate cause of the plaintiff’s injury. To establish a claim for unfair and deceptive trade practices, the defendant must have committed an unfair or deceptive act, the action in questions must have affected commerce, and the act must have proximately caused injury to the plaintiff. For a more in-depth discussion of this issue, please read our previous blog post regarding the differences between a Breach of Fiduciary Duty and Constructive Fraud. ![]() Constructive fraud differs from actual fraud because the elements of constructive fraud do require intent, or actual knowledge of the lie or omission. ![]() Attorneys should consider the following claims when filing a breach of fiduciary duty cause of action and determine which, if any, also apply to their clients:Ĭonstructive Fraud occurs when a person or entity gains an unfair advantage over another through unjust means, usually by lying or omitting important details. Several causes of action may be pled in conjunction with a claim for breach of fiduciary duty, depending on the facts and circumstances surrounding the case.
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