This article on negligence is part of Vail Law's open-source litigation and legal risk management checklist. Connect with me on LinkedIn.
Aiding and abetting the breach of a fiduciary duty is very similar to, but not identical to, the claim of civil conspiracy (where the underlying tort is breach of fiduciary duty). Nelson v. Elway, 971. P.2d 245, 249 (Colo. App. 1998). The elements of the tort of aiding and abetting a breach of fiduciary duty are:
(1) Breach of a fiduciary duty owed to a plaintiff;
(2) A defendant’s knowing participation in the breach; and
(3) Damages
Holmes v. Young, 885 P.2d 305 (Colo. App. 1994) (noting that the Restatement (Second) of Torts, Section 876(b), adds the additional element that “defendant must give substantial assistance to the other’s breach” but not making it clear if that supplements the “participation” requirement under Colorado law). Not every state recognizes this separate tort of “aiding and abetting” the breach of a fiduciary duty, but where they do (i.e., Colorado), it permits the expansion of liability for such breach to anyone who knowingly and substantially assisted in the breach—a far lesser standard than the civil conspiracy requirement of a meeting of the minds or express agreement to joint together in conspiracy to breach the fiduciary duty.
Breach of fiduciary duty - and aiding and abetting the same - can be an important cause of action in business litigation. At Vail Law, we use an open-source, Litigation Checklist approach to develop claims and defenses tailored to each unique situation. Often these include breach of negligent misrepresentation, fraud, breach of contract, and exotic statutory causes of action. Contact Jeff Vail at (303) 600-3730 or jvail@vail-law.com to discuss your specific case.