In this column, we will explore the concept of tort liability arising from what is referred to as “launching an instrument of harm.” What is an instrument of harm and how does it apply to a tort case? Ordinarily, contracting parties assume duties to one another. If one of them fails to live up to its contractual obligations, the other party can sue it for breach of contract. But generally, the breach of a contractual duty will not be considered to give rise to a negligence claim, because a contract does not impart a duty of care to members of the public.
However, in some cases, “parties outside a contract are permitted to sue for tort damages arising out of negligently performed or omitted contractual duties.” Palka v. Servicemaster Services, 83 N.Y.2d 579, 586 (1994). The most significant basis on which an injured party is allowed to do so is under the so-called “instrument of harm” theory. If a party to a contract breaches a contractual duty and thereby creates or increases the risk of harm to others, it will be considered to have launched an “instrument of harm” and can be sued in a negligence case. It thereby allows an injured party to bring suit against a potentially negligent tortfeasor, even in the absence of privity of contract.