(concurring in part and dissenting in part).
I concur with respect to issues one and three but respectfully dissent on issue two. I opine that no duty arose to protect Bail from the unforeseeable harm which he encountered on his subsequent disposition of the cows.
Foreseeability is the touchstone of the determination of the existence of a duty. Johnson v. Straight’s Inc., 288 N.W.2d 325 (1980); Nicholas v. Tri-State Fair & Sales Ass’n, 82 S.D. 450, 148 N.W.2d 183 (1967). The liability of a defendant is not contingent upon the foreseeability of the extent of the harm or the manner in which it occurred. Johnson, supra. Foreseeability must be analyzed in light of all the circumstances and is dependent upon the facts of each individual case. Small v. McKennan Hospital, 437 N.W.2d 194 (S.D.1989); Johnson, supra. “The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is the risk to another or others within the range of apprehension.” Nicholas, supra (quoting Judge Cardozo, Palsgrafv. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99 (1928). Thus, I ask, was it within the range of defendant’s apprehension that a risk of injury to plaintiff existed and could have been avoided by the exercise of reasonable care. Nicholas, supra. I submit that the damages claimed by Bail were not and therefore no duty flowed from Rotenber-ger to Bail.
Bail contends that damage to his reputation and a reduced price upon resale were foreseeable damages placing a duty on Ro-tenberger to make a reasonable inspection of the cattle. Under the “totality of the circumstances test,” McKennan, supra; Johnson, supra, with respect to the issue of foreseeability, we are required to review what information was available or what information Rotenberger had knowledge of at the time of the cattle inspection in order to determine if Bail’s claimed damages were foreseeable.
Without a doubt, Rotenberger knew that Limpert was selling cattle to Bail and that his job was to check the cattle in order to determine if they conformed to the oral contract between Limpert and Bail. Nothing in the record exists to suggest that Rotenberger had any knowledge of what Bail’s intentions were after taking possession of the cattle, and to suggest that he did amounts to conjecture and speculation. In light of these facts, if Bail subsequently discovered the nonconformance of the *53cows, it would be foreseeable that he would seek to obtain the benefit originally bargained for, not from Rotenberger but from Limpert. The likelihood of this result is also evidenced in Bail’s deposition. The following colloquy took place between Lim-pert’s attorney and Bail:
Q. Have you handled any transactions before, or you bought pregnant cows, and it turned out that you’ve got an open or a late?
A. Well, yeah. I mean, I have bought pregnant cows before, and if they are not pregnant, I mean, the owner that sold the cows as being pregnant is the one that’s—
Q. How do you normally handle a situation like that?
A. They make up the difference in the losses. That’s what we have always done.
By Bail’s own words, he indicates the type of recourse which is normally taken in the event a dispute arises under this type of a factual scenario. For Bail to expect Roten-berger to foresee what would happen beyond the original sale of the cattle between the two parties is requiring too much and extends the issue of foreseeability too far. This would require Rotenberger to have knowledge of what Bail intended to do with the cattle after his purchase. For example, whether he intended to sell them to a private buyer, selling them at another sale, keeping them for the purpose of raising the calves and later breeding the cows, etc.
If Rotenberger owed a duty to anyone it was to Limpert to make a reasonable inspection of the cattle in order to avoid any recourse by Bail in the event the cattle did not conform to the oral agreement. Whether or not Rotenberger was negligent does not bar Bail from seeking a remedy under the UCC for the sale of nonconforming cattle by Limpert. See SDCL ch. 57A-2. The injury or damage to Bail was simply not a foreseeable consequence under the totality of the circumstances. Damages to Limpert were. Rotenberger was simply under no duty to protect Bail from any harm outside the scope of the sale between Limpert and Bail under these facts.