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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¶65 To summarize, duties imposed by law and duties assumed by agreement often apply to the same events. It is the province of this court to decide the duties imposed by law and once having recognized a tort duty, it is the province of this court to decide that a duty no longer applies to certain circumstances or events. Cf. United States v. Booker, 375 F.3d 508, 513 (7th Cir. 2004) (citing State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 139 L. Ed. 2d 199 (1997)). The independent duty doctrine has been an analytical tool used by the court to maintain the boundary between torts and contract. It is an analytical tool to apply policy considerations to determine if a tort should be recognized in the first instance. I agree with the lead *417opinion that the analysis involves “ ‘ “considerations of logic, common sense, justice, policy, and precedent.” ’ ” Lead opinion at 389 (quoting Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001) (quoting Lords v. N. Auto. Corp. 75 Wn. App. 589, 596, 881 P.2d 256 (1994))). I agree with the lead opinion that there is a duty in tort not to commit waste. It is a duty imposed by common law and codified in RCW 64.12.020. The duty not to commit waste is and always has been independent of and in addition to any duties assumed by contractual lease covenants. This court has never held otherwise. If our jurisprudence has recognized a tort in the past, lower courts should recognize those torts unless and until this court has, based upon considerations of common sense, justice, policy and precedent, decided otherwise. It is my reading of the lead opinion that the role of the trial court is to determine if the duty sought to be enforced is one essentially assumed by agreement or imposed by law. If it is a duty solely assumed by agreement, contract remedies apply, and if it is a duty based upon a standard of care imposed by established law, unless clearly waived or modified by agreement, tort remedies apply. I agree that is the appropriate role of the trial court.

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