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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¶54 First, I have a cautionary word for any court that attempts to apply contract law and remedies to the exclusion of other applicable bodies of law and remedies. Our jurisprudence has developed slowly and thoughtfully over many centuries. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457, 468 (1897). In its simplest form, we have criminal law and civil law. Oliver Wendell Holmes, Jr., The Common Law 6 (Mark DeWolfe Howe ed., 1963) (1881). Although, generally, the government enforces criminal law and the individual enforces civil law, they run parallel and may simultaneously apply to the same event. A wrongful death or a fraud may be both a tort and a crime. Similarly, in civil law we have several bodies of law including contract law and tort law, the former based upon duties voluntarily assumed by agreement and the latter based upon duties imposed by law, and they may simultaneously apply to the same event. Tort duties are important to our society and are imposed for a variety of reasons. We impose these duties to protect innocent parties; to deter hazardous, reckless, and negligent conduct; to compensate for injuries; and to provide a fair distribution of risk. The law often imposes greater duties on persons in relationships with each other because the harm is more foreseeable. In every business or contractual relationship, parties will have duties imposed by law in addition to any duties they have assumed by agreement. It is possible that parties will assume greater duties by agreement than imposed by law, and it is possible that parties may alter duties imposed by law with respect to one another. However, where society has imposed a duty by law, that duty is not abrogated merely *408because parties also have a business or contractual relationship. It is ultimately for the legislature and this court to define duties imposed by law in this state. This court may, from time to time, decide whether a duty is cognizable in tort. Once having decided that a duty is cognizable in tort, it is for this court to decide if the tort duty should no longer apply to certain circumstances or events. II

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