Eastwood v. Horse Harbor Foundation, Inc., 170 Wash. 2d 380 (2010)

Citation: Eastwood v. Horse Harbor Foundation, Inc., 170 Wash. 2d 380 (2010)
Parent Document: Eastwood v. Horse Harbor Foundation, Inc., 170 Wash. 2d 380 (2010)
Jurisdiction: Washington (state)
Effective Date: 2010-11-04
Original Source: https://www.courtlistener.com/opinion/4909141/eastwood-v-horse-harbor-foundation-inc/ ↗

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Chambers, J.
¶53 (concurring) — I commend the lead opinion’s effort to refocus and rename what has heretofore been referred to by this court as the “economic loss rule” and will hereafter be referred to as the “independent duty rule.” I concur but write separately to emphasize it is the unique role of this court to decide what the law is and what tort duties are recognized in this state. Brown v. State, 155 Wn.2d 254, 261-62, 119 P.3d 341 (2005) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177, 2 L. Ed. 60 (1803)). The independent duty rule was never a rule in the ordinary sense. Rather it described an analytical tool used to assist this court in determining whether to recognize a tort cause of action in the first instance. It does not describe any particular kind, type, class, or character of damages. Finally, this court has applied what we now call the independent duty doctrine only in cases involving product liability and claims arising out of construction or the sale of real *407estate. Lower courts should be cautious in its application, especially outside of those narrow areas. The role of the trial court is to determine if the duty sought to be enforced is a duty essentially assumed by agreement or a duty imposed by law. That determination will control the remedy. I

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