民诉法第三题.doc

IV. Facing Reality: Could JAire Have Delivered on Its Promise? At this point I want to offer a defense of Rabins 2006 article. It is clear that Rabin was offering an accurate description of contemporary duty analysis in pure economic loss cases. That is, it was certainly the case that American tort law had turned decidedly more hostile toward pure economic loss compared to 1985. I would like to suggest that Rabins own choices in his article - his recasting of the types of pure economic loss cases and his choice not to offer JAire and the Rowland approach to duty as an alternative - have also reflected an uncomfortable analytical observation: the approach to pure economic loss represented by JAire was itself ad hoc and could not form the foundation of a larger, general principle for determining duty in pure economic loss cases. First, an inconvenient fact: JAire has not fared well, even in California. In 1985 it seemed that one could argue, as did Rabin, that in triangular configuration (Category II) cases, the balancing of factors required by Rowland would support a finding of a duty to avoid pure economic loss if the plaintiffs loss was a foreseeable consequence of the defendants negligence and there was no risk of widespread harm or disproportionate loss. Schwartz argued that this was a mistake and that the presence of contractual relations - either between the plaintiff and the defendant, as in most products liability cases, or between the plaintiffs and some third party, as in JAire and many homeowners cases - would doom any effort to extend tort law into what is otherwise the province of contract. n137 In Aas v. Superior Court of San Diego County, the California Supreme Court, mirroring Schwartzs argument, reasoned that in matters of pure economic loss, tort and contract are dichotomous and contract should take precedence. n138 Aas involved a suit by homeowners and a homeowners association against a developer, general contractor, and subcontractors on a con