(specially concurring).
I believe the trial court should be affirmed based on long-accepted principles of contract and tort law. These principles would lead to affirmances as found by the trial court. Instead, the majority has appropriated specialized third-party beneficiary concepts arising in tort litigation and applied them to an auctioneering setting. In so doing, the majority has unwisely created new causes of action imposing damages on auctioneers and their attorneys for supposed negligence projected from tort concepts.
No cases have been cited by the majority even suggesting an attorney can be liable for negligence in tort to a bidder at auction. That is because none exist. An auctioneer’s attorney owes no duty to auction bidders. The attorney’s duty of care and professional obligation is owed solely to the client that contracted for those legal services. In this ease, that client was the Zenor estate, a fact that was completely disclosed to Shiwers. Without a duty owed by attorney McKinney to Shiwers, as is the case here, there can be no liability.1
*482The protection of her own interests that Shiwers desires and clamors to obtain by imposing imagined duties on others could and should have been realized by employing her own legal counsel. Lack of precautionary incentive should not provide a societal or judicial basis for obtaining retributive damages from others.
Regarding the claim of negligence against Hertz, I agree that the district court’s summary, judgment for Hertz should be affirmed. I believe that claim preclusion bars Shiwers’ claim here but do not accept as sound the route selected by the majority to reach this result. Here again the majority reaches out to extend liability for corporate tortious conduct to an auction setting. Although corporate officers as agents may be hable for tortious conduct in a situation where duties are owed, such is not the case where an auctioneer is acting for a disclosed principal. The auctioneer’s duties arise out of contract with his or her employer. There is no duty owed to the bidding public. Thus, a negligence action in tort cannot be formulated from a vacuum.
McGIVERIN, C.J., and HARRIS and NEUMAN, JJ., join this special concurrence.
. Unlike the majority's analysis, I cannot find that the omission of the easement by McKinney was within the instructions of his client, the Zenor estate. He readily admitted the omission of the easement was inadvertent. Nevertheless, I do not believe a cause of action can arise from this in favor of Shiwers because of the exclusive attorney-client relationship between McKinney and the Zenor estate that admits of no duty to third-party beneficiaries.