Third Restatement of Torts: Key Changes Explained!

Understanding the Third Restatement of Torts: A Guide to Key Changes

The third restatement of torts represents a significant evolution in how courts approach and interpret tort law. This article outlines key changes introduced by the third restatement of torts, offering a clear understanding of its impact on different areas of tort litigation.

Focus and Scope of the Third Restatement

Before diving into specific changes, it’s crucial to understand the scope of the third restatement of torts. It’s not a complete overhaul of all tort law; rather, it revises and clarifies certain areas, particularly those where legal principles have evolved significantly since the Second Restatement. Key areas addressed include:

• Apportionment of Liability: How responsibility is divided among multiple tortfeasors.
• Physical and Emotional Harm: Rules governing liability for injuries, including emotional distress.
• Products Liability: Standards for holding manufacturers and sellers liable for defective products.

Major Revisions and Their Impact

The third restatement of torts brings several notable changes to traditional tort law principles. Here are some of the most important revisions, explained with their practical implications:

1. Reconceptualization of Duty of Care

The third restatement of torts has refined the concept of duty of care, particularly in cases involving affirmative duties. While the traditional rule generally holds that there is no duty to act affirmatively to protect another person from harm, the Restatement clarifies and expands exceptions to this rule.

• Prior Conduct Creating Risk: If someone’s conduct creates a risk of harm, they have a duty to exercise reasonable care to prevent that harm from occurring, even if the initial conduct wasn’t negligent.
• Voluntary Undertaking: If someone voluntarily undertakes to protect another person, they have a duty to exercise reasonable care in doing so. Abandoning the effort without sufficient notice can create liability.
• Special Relationships: Certain relationships, such as those between a common carrier and its passengers, or between a school and its students, create a duty to protect.

2. Refining the Standard of Care in Negligence

The third restatement of torts reinforces the objective standard of care, emphasizing what a reasonably prudent person would do under similar circumstances. It addresses the consideration of mental deficiencies, noting that a person’s mental or emotional disability is not considered when determining if conduct is negligent, unless the disability is a sudden, unexpected event.

• Children: The standard of care for children is generally that of a reasonable child of similar age, intelligence, and experience, unless the child is engaging in adult activity.
• Professionals: Professionals are held to a higher standard of care, requiring them to act with the skill, knowledge, and care ordinarily possessed by members of their profession in good standing.

3. Changes in Apportionment of Responsibility

The third restatement of torts provides a framework for apportioning liability among multiple tortfeasors. It focuses on comparative responsibility, allowing for the reduction of a plaintiff’s recovery based on their own negligence.

• Pure Comparative Negligence: Allows a plaintiff to recover damages even if they are more negligent than the defendant, although their recovery is reduced in proportion to their fault.
• Modified Comparative Negligence: This approach places a limit on the plaintiff’s recovery. Some jurisdictions bar recovery if the plaintiff’s negligence is equal to or greater than the defendant’s, while others allow recovery if the plaintiff’s negligence is not greater than the defendant’s.
• Joint and Several Liability: The third restatement of torts reflects the trend of many jurisdictions to limit joint and several liability, particularly in cases where a defendant’s fault is significantly less than other tortfeasors.

Understanding Joint and Several Liability

Feature	Traditional Joint and Several Liability	Limited Joint and Several Liability (as reflected in the Third Restatement)
Defendant’s Fault	Any degree of fault	Often requires a specified threshold of fault (e.g., above a certain percentage)
Plaintiff Recovery	Can recover full damages from any tortfeasor	Recovery from each tortfeasor limited to their percentage of responsibility

4. Products Liability: Defining Defect and Causation

The third restatement of torts significantly revises the rules concerning products liability. It emphasizes the importance of proving both a defect in the product and causation between the defect and the injury. The Restatement identifies three types of defects:

• Manufacturing Defect: The product deviates from its intended design.
• Design Defect: The product’s design creates an unreasonable risk of harm. The Restatement uses a risk-utility test to evaluate design defects, weighing the risks of the design against its benefits and the availability of safer alternative designs.
• Failure to Warn: The product lacks adequate warnings about foreseeable risks of harm. The Restatement emphasizes the importance of providing clear and conspicuous warnings about potential dangers.

Risk-Utility Balancing Test (Design Defects)

The third restatement of torts emphasizes the Risk-Utility test for determining the reasonableness of the design. This involves balancing several factors, including:

• The usefulness and desirability of the product.
• The safety aspects of the product.
• The availability of a substitute product which would meet the need and not be as unsafe.
• The manufacturer’s ability to eliminate the unsafe characteristic without impairing its usefulness or making it too expensive to maintain its utility.
• The user’s ability to avoid danger by the exercise of care in the use of the product.
• The user’s awareness of the dangers inherent in the product and their avoidability.
• The feasibility, on the part of the manufacturer, of spreading the loss by setting the price of the product or carrying liability insurance.

5. Emotional Distress: Establishing Credible Harm

The third restatement of torts clarifies the elements for establishing a claim for negligent infliction of emotional distress. While some jurisdictions require a physical impact or injury, the Restatement recognizes that severe emotional distress can be actionable even without a physical manifestation, provided it is genuine and objectively verifiable.

• Bystander Recovery: Some jurisdictions allow a bystander who witnesses an injury to a close relative to recover for emotional distress. The third restatement of torts typically requires the bystander to be present at the scene of the injury, to be closely related to the injured person, and to suffer severe emotional distress as a result.

Impact and Future Developments

The third restatement of torts continues to shape the landscape of tort law across the United States. While not binding authority, it is highly influential and widely cited by courts. The changes introduced by the Restatement reflect a move towards more nuanced and flexible rules, allowing courts to adapt tort law to modern circumstances. It’s essential for legal professionals and anyone interested in tort law to stay informed about the principles and interpretations of the third restatement of torts.

So, there you have it! Hopefully, this breakdown of the third restatement of torts has shed some light on the topic. Dive deeper whenever you need a refresher, and feel free to share your thoughts or questions. Happy lawyering!