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State v. United States Steel Corp.6/24/1996
considered to be in the business of supplying information for the guidance of others, Rozny does not explicitly hold that the applicability of section 552 is limited to those in the business of supplying information. Rozny does not even speak to the status of the defendant and instead holds that:
It is apparent that many of the courts which have considered analogous situations have thought the potential liability of one who negligently supplies inaccurate information to be such as to militate against imposing liability when the person ultimately damaged was one whose reliance on the information might have been called "foreseeable", . . . but have been willing to impose liability when the reliance of the third person might have been said to be "known". . . . Although the absence of privity may have been the stated reason for denying liability, it seems likely that the virtually unlimited and unknown potential responsibility of the defendant weighed heavily in the courts' thinking.
We agree that the unknown and unlimited liability factor . . . is not to be lightly discounted. . . .
Moreover, we believe the proposed revision of the Restatement (Second) of Torts, § 552, (Tent. Draft. No. 12, 1966), is apposite in this situation. While the draft has not yet been adopted, it apparently recognizes liability to a nebulous group whose reliance on the survey was something more than foreseeable but something less than identifiably known. In the case before us the fact that those who subsequently dealt with the property would rely on the plat was not only foreseeable, it was, by defendant's own testimony, known to him.
250 N.E.2d at 661-63 (citations omitted). Moorman, therefore, appears to represent the first injection of an "in the business of supplying information" requirement into section 552 and does not provide any cogent analysis explaining why it has done so.
A second, apparently independent rationale has also been discussed in Illinois decisions regarding the "in the business of supplying information" requirement. In Penrod v. Merrill Lynch, Pierce, Fenner & Smith, 68 Ill. App. 3d 75, 385 N.E.2d 376, 24 Ill. Dec. 464 (Ill. App. Ct. 1979), the Appellate Court of Illinois relied upon the Pennsylvania Supreme Court's reasoning in Renn v. Provident Trust Co., 328 Pa. 481, 196 A. 8 (Pa. 1938), and concluded that, "if it is one's business to supply information and if that information is negligently supplied, especially where the person supplying the information knows that some action will be influenced by the information, the supplier of the information can be held liable for the resultant damages." Id. at 381 (emphasis added). The Renn court rationale, however, relied on section 552 of the first Restatement of Torts, which provided in pertinent part:
One who in the course of his [or her] business or profession supplies information for the guidance of others in their business transactions is subject to liability for harm caused to them by their reliance upon the information if
(a) he [or she] fails to exercise that care and competence in obtaining and communicating the information which its recipient is justified in expecting[.]
Restatement (First) of Torts § 552 (1938). Noticeably absent from the First Restatement's version of section 552 is the language "or in any other transaction in which [the defendant] has a pecuniary interest" immediately following the phrase "in the course of his [or her] business or profession," as in the Second Restatement's version of section 552. Subsequent Illinois decisions, both pre- and post-Second Restatement, have continued to apply this requirement gleaned from the First Restatemen
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