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State v. United States Steel Corp.6/24/1996
only to those "who are in the business of supplying information for the guidance of others." Section 552(1) instead requires only that the provider of information supply information "in the course of his [or her] business, profession or employment," or supply information in connection with "any other transaction in which he [or she] has a pecuniary interest." As the commentary to section 552 notes, the salient characteristic required of the defendant supplier of information is that the defendant have a pecuniary interest in the supplying of the information; a showing that the information was supplied in the course of the defendant's business, profession, or employment is sufficient to establish that the defendant has a pecuniary interest in the transaction, but it is only one way of meeting the requirement. The commentary to section 552(1) provides that:
The rule stated in Subsection (1) applies only when the defendant has a pecuniary interest in the transaction in which the information is given. If he [or she] has no pecuniary interest and the information is given purely gratuitously, he [or she] is under no duty to exercise reasonable care and competence in giving it. . . .
The defendant's pecuniary interest in supplying the information will normally lie in a consideration paid to him [or her] for it or paid in a transaction in the course of and as a part of which it is supplied. It may, however, be of a more indirect character. Thus the officers of a corporation, although they receive no personal consideration for giving information concerning its affairs, may have a pecuniary interest in its transactions, since they stand to profit indirectly from them, and an agent who expects to receive a commission on a sale may have such an interest in it although he she sells nothing.
The fact that the information is given in the course of the defendant's business, profession or employment is a sufficient indication that he [or she] has a pecuniary interest in it, even though he [or she] receives no consideration for it at the time. It is not, however, conclusive. But when one who is engaged in a business or profession steps entirely outside of it, as when an attorney gives a casual and offhand opinion on a point of law to a friend whom he [or she] meets on the street, or what is commonly called a "curbstone opinion," it is not to be regarded as given in the course of his [or her] business or profession; and since he [or she] has no other interest in it, it is considered purely gratuitous. The recipient of the information is not justified in expecting that his [or her] informant will exercise the care and skill that is necessary to insure a correct opinion and is only justified in expecting that the opinion will be an honest one.
Restatement (Second) of Torts § 552, comments c and d (1977).
In other words, the central principle operating within section 552 is that the defendant supplier of information must have a pecuniary interest in the transaction or context in which the information is supplied in order to merit the imposition of a duty of care in obtaining and communicating the information. To this end, section 552 sets out two methods of meeting this requirement. The information may be supplied by one whose business it is to provide information -- such as accountants, attorneys or title companies, who provide information for a price, and for the guidance of others in their transactions with third parties. This means of meeting the "pecuniary interest" requirement is contemplated by the "in the course of his [or her] business, profession or employment" language of section 552.
However, section 552 also contemplates the meeting of the "pecuniary
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