OUJI 3d (Rev.

2009) Chapter 26

CHAPTER TWENTY SIX

BREACH OF FIDUCIARY DUTY

LIST OF CONTENTS

INSTRUCTION NO. 26.1 ............. BREACH OF FIDUCIARY DUTY - ELEMENTS OF LIABILITY

INSTRUCTION NO. 26.2 ...........BREACH OF FIDUCIARY DUTY - EXISTENCE OF FIDUCIARY
…………………………………………………. RELATIONSHIP
INSTRUCTION NO. 26.3 ............. BREACH OF FIDUCIARY DUTY - FIDUCIARY DUTY OWED
INSTRUCTION NO. 26.4 ....................... BREACH OF FIDUCIARY DUTY - BREACH DEFINED
INSTRUCTION NO. 26.5 .................................... BREACH OF FIDUCIARY DUTY - DAMAGES

Instruction No. 26.1

BREACH OF FIDUCIARY DUTY - ELEMENTS OF LIABILITY

In order for [Plaintiff] to recover from [Defendant] on [his/her] claim for breach
of fiduciary duty, you must find that all of the following have been established:

1. A fiduciary relationship existed between [Plaintiff] and [Defendant] that

created (a fiduciary duty)/(fiduciary duties) that [Defendant] owed to [Plaintiff];

2. [Defendant] breached the fiduciary duty/duties to [Plaintiff]; and

3. The breach of the fiduciary duty/duties was the direct cause of damages to
[Plaintiff].

Notes on Use
Instructions 26.2 to 26.5, infra, should be used with this Instruction.
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Committee Comments
This instruction is based on the following statement in FDIC v. Grant, 8 F.
SupP.2d 1275, 1299 (N.D. Okla. 1998):

From a review of the authorities in Oklahoma, it appears that the four elements of
an actionable breach of fiduciary duty claim are: (1) the existence of a fiduciary
relationship, (2) a duty arising out of the fiduciary relationship, (3) a breach of the duty,
and (4) damages proximately caused by the breach of duty.

The Instruction combines the first and second elements from the Grant case,
because the existence of a fiduciary relationship will create one or more fiduciary duties
as a matter of law.

Instruction No. 26.2

BREACH OF FIDUCIARY DUTY - EXISTENCE OF FIDUCIARY RELATIONSHIP

You are instructed that a fiduciary relationship existed in this case between
[Plaintiff] and [Defendant].

OR
You are instructed that if you determine that [Specify Grounds for Fiduciary
Relationship, e.g., [Defendant] was the [guardian, employee, partner, attorney,
accountant, banker, physician, etc.] of [Plaintiff]], then a fiduciary relationship existed
in this case between [Plaintiff] and [Defendant].

OR
You must determine whether a fiduciary relationship existed in this case between
[Plaintiff] and [Defendant] based upon their relationship and the other circumstances in
this case. A fiduciary relationship exists whenever trust and confidence are reasonably
placed by one person in the integrity and loyalty of another, and the other person
knowingly accepts that trust and confidence and then undertakes to act on behalf of the
person.
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Notes on Use
The first alternative should be used where the existence of a fiduciary relationship
may be determined as a matter of law. Examples include relationship such as guardian
and ward, attorney and client, principal and agent, and where a fiduciary relationship is
created by statute. See Lowrance v. Patton, 1985 OK 95, ¶ 17, 710 P.2d 108, 111.

The second alternative should be used where the existence of a fiduciary

relationship depends on a disputed factual issue. The trial court may need to modify this
alternative to explain the disputed factual issue-e.g., by defining the requirements for a
guardianship.

The third alternative should be used where the existence of a fiduciary

relationship is a jury question and the fiduciary relationship does not fit into a well-
defined category, such as the relationship of a guardian and ward.

Committee Comments
The criteria for a fiduciary relationship in the third alternative are taken from
Lowrance v. Patton, 1985 OK 95, ¶¶ 17-18, 710 P.2d 108, 111-12; Sellers v. Sellers,
1967 OK 34, ¶¶ 21-22, 428 P.2d 230, 236; and Robertson v. Painewebber, Inc., 2000 OK
CIV APP 17, ¶¶ 10-11, 998 P.2d 193, 198-99.

Instruction No. 26.3

BREACH OF FIDUCIARY DUTY - FIDUCIARY DUTY OWED

You are instructed that [Defendant] owed the following duty/duties to

[Plaintiff]:

[Describe the fiduciary duty or duties]

OR
If you find that a fiduciary relationship existed in this case between [Plaintiff]
and [Defendant], then you are instructed that [Defendant] owed the following
duty/duties to [Plaintiff]:
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[Describe the fiduciary duty or duties]

Committee Comments
For examples of duties of an agent to a principal, see Restatement (Third) of
Agency §§ 8.01-8.12 (2006). The Restatement sets out the fiduciary duties of an agent to
a principal under the headings of duties of loyalty and duties of performance, but it would
be helpful for the trial judge to provide more guidance by specifying the fiduciary duty
that is applicable to the case, such as the duty to maintain confidences, to refrain from
self-dealing, or the duty to provide information to the principal.

Instruction No. 26.4

BREACH OF FIDUCIARY DUTY - BREACH DEFINED

[Defendant] breached a fiduciary duty in this case if [Defendant] did not act in
accordance with [Specify the Fiduciary Duty or Duties Owed].

[Plaintiff] claims that [Defendant] breached the fiduciary duty/duties that

[Defendant] owed to [Plaintiff] in the following manner:

[Specify alleged breach of fiduciary duty or duties]

Instruction No. 26.5

BREACH OF FIDUCIARY DUTY - DAMAGES

A person who breaches a fiduciary duty owed to another person is liable for the
harm that was directly caused by the breach. If you decide that [Defendant] breached a
fiduciary duty to [Plaintiff] and [Plaintiff] has suffered harm as a direct result, you must
then fix the amount of [his/her] damages. This is the amount of money that will
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reasonably and fairly compensate [him/her] for the harm directly caused by
[Defendant].

In fixing the amount you will award [him/her] you may consider the following:

[Specify elements of damages, e.g., lost profits, emotional distress, etc.]