Alloway v. General Marine Industries6/30/1997
ra) , 476 U.S. at 871-75, 106 S. Ct. at 2302-04, 90 L. Ed. 2d 865; Casa Clara v. Charley Toppino & Sons, 620 So. 2d 1244, 1247 (Fla. 1993); Oceanside, (supra) , 659 A.2d at 270; Bocre Leasing, (supra) , 645 N.E. 2d at 1198-99; Waggoner v. Town & Country Mobile Homes, 808 P. 2d 649, 652-53 (Okla. 1990). Implicit in the distinction is the doctrine that a tort duty of care protects against the risk of accidental harm and a contractual duty preserves the satisfaction of consensual obligations. Casa Clara, (supra) , 620 So. 2d at 1246-47; Spring Motors, (supra) , 98 N.J. at 579.
Relevant to the distinction are "the relative bargaining power of the parties and the allocation of the loss to the better risk-bearer in a modern marketing system." Spring Motors, (supra) , 98 N.J. at 575; see East River, (supra) , 476 U.S. at 871-73, 106 S. Ct. at 2302-03, 90 L. Ed. 2d 865. Perfect parity is not required for a finding of substantially equal bargaining power. Spring Motors, (supra) , 98 N.J. at 576. Although a manufacturer may be in a better position to absorb the risk of loss from physical injury or property damage, a purchaser may be better situated to absorb the "risk of economic loss caused by the purchase of a defective product." Ibid. ; see East River, (supra) , 476 U.S. at 871, 106 S. Ct. at 2302, 90 L. Ed. 2d 865 (noting purchaser can insure against risk of economic loss); Lucker Mfg. v. Milwaukee Steel Foundry, 777 F. Supp. 413, 416-17 (E.D. Pa. 1991) (same); Bocre Leasing , (supra) , 645 N.E. 2d at 1196 (same).
In the present case, nothing indicates that Alloway was at a disadvantage when bargaining for the purchase of the boat. Moreover, a thirty-three foot luxury boat with a swimming platform is not a necessity. Additionally, Alloway prudently protected himself against the risk of loss by obtaining an insurance policy that distributed that risk to his insurer, New Hampshire. To this extent, the question becomes whether GMI, which acquired the assets of the bankrupt manufacturer, or New Hampshire, which is in the business of insuring against the risk of harm caused by defective products, can better bear the risk of loss from damage to the boat. See generally East River, (supra) , 476 U.S. at 871-72, 106 S. Ct. at 2302, 90 L. Ed. 2d 865; Bocre Leasing , (supra) , 645 N.E. 2d at 1196, 1198-99.
Also involved is an appreciation of the relative roles of the legislative and judicial branches in defining rights and duties in commercial transactions. Absent legislation, courts possess greater latitude in determining those rights and duties. Once the Legislature acts, respect for it as a co-equal branch of government requires courts to consider the legislation in determining the limits of judicial action. See Spring Motors, (supra) , 98 N.J. at 577; see also Danforth v. Acorn Structures, Inc., 608 A.2d 1194, 1200-01 (Del. 1992) (declining to displace provisions of U.C.C. with tort actions). By enacting the U.C.C., the Legislature adopted a comprehensive system for compensating consumers for economic loss arising from the purchase of defective products. See Spring Motors, (supra) , 98 N.J. at 577; Danforth, (supra) , 608 A.2d at 1194, 1200-01; Waggoner, (supra) , 808 P. 2d at 653. The U.C.C. represents the Legislature's attempt to strike the proper balance in the allocation of the risk of loss between manufacturers and purchasers for economic loss arising from injury to a defective product. See generally James J. White & Robert S. Summers, 1 Uniform Commercial Code 582 (4th ed. 1995); East River, (supra) , 476 U.S. at 872-73, 106 S. Ct. at 2302-04, 90 L. Ed. 2d 865; Seely, (supra) , 403 P. 2d at 148; Spring Motors, (supra) , 98 N.J. at 577; Bocre Leasing , (supra) , 645 N.E. 2d at 1196.
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