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Dow Chemical Company v. Mahlum12/31/1998
h is that the defendant had a duty to exercise due care towards the plaintiff) . In determining whether such a duty exists, this court has held that it is the courts and not juries that have the ultimate responsibility to define the scope of duty in relation to particular circumstances and to define the legal standard of reasonable conduct in light of the apparent risk. See Ashwood v. Clark County, 113 Nev. 80, 84, 930 P.2d 740, 742 (1997). Consequently, whether evidence presented by the plaintiffs is sufficient to create a legally cognizable duty is a question for the courts. See Artiglio v. Corning Inc. , 957 P. 2d 1313, 1318 (Cal. 1998) ("Whether this essential prerequisite to a negligence cause of action has been satisfied in a particular case is a question of law to be resolved by the court."); Smith v. Allendale Mut. Ins. Co., 303 N.W.2d 702, 710 (Mich. 1981) (rejecting argument that the extent and nature of an undertaking under section 324A are questions of fact for the jury; rather, it is "for the court to determine what evidence is minimally necessary to establish the elements of a relationship on which tort liability may be premised") ; Matter of New York State Silicone Breast Implant Litig., 632 N.Y.S.2d 953 (Sup. ct. 1995) ("Matter of N.Y. State Silicone") (addressing a similar claim of negligent undertaking against Dow Chemical by breast implant recipients, holding that "the question of whether a duty is owed in the first instance is a legal issue to be resolved by the court"), aff'd, 642 N.Y.S.2d 681, alopeal dismissed, 676 N.E.2d 493 (N.Y. 1996). There is insufficient evidence in the record to support a Conclusion that Dow Chemical owed a duty towards Dow Corning's breast implant recipients.
Other courts confronted with similar facts have found no duty under section 324A. A New York court concluded that Dow Chemical lacked a duty to the ultimate purchasers of breast implants because: (1) there was only a "tenuous connection" between Dow Chemical and those ultimate purchasers, (2) Dow Chemical never provided or undertook to provide the plaintiffs with any services, any information, or any product, (3) there was no evidence that the ultimate purchasers of the breast implants ever relied on Dow Chemical or on any information that Dow Chemical provided to Dow Corning in making a decision to purchase breast implants, and (4) there is no evidence that Dow Chemical had any contact with the plaintiffs or knew their identity. Matter of N.Y. State Silicone, 632 N.Y.S.2d at 956. "Thus, plaintiffs cannot establish a sufficient relationship between themselves and Dow Chemical to justify imposing a duty on Dow Chemical." Id. The court made further observations that are important to note:
"While moral and logical judgments are significant components of the analysis, we are also bound to consider the larger social consequences of our decisions and to tailor our notion of duty so that 'the legal consequences of wrongs [are limited] to a controllable degree.'"
"[The New York Court of Appeals] has "limited the universe of permissible plaintiffs because a failure to do so would impose a duty of reasonable care enforceable by any member of an indeterminate class of persons, present and prospective, known and unknown, directly or indirectly injured by any negligence." The court noted that " he hazards of a business conducted on these terms are so extreme as to enkindle doubt whether a flaw may not exist in the implication of a duty that exposes to these consequences."
"Although Dow Chemical may have had a duty to the actual users of its research such as Dow Corning, that liability does not extend ad infinitum to any potential ultimate user of a product which contains a silicone
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