Wake Forest Law Review

By: Andrew R. Klein

I appreciate the opportunity to comment on the Wake Forest Law Review’s recent tort law symposium.  The Law Review brought together an all-star cast of scholars who produced “must read” articles for those interested in the field.

My primary concern is that excessive fragmentation of the Restatement of Torts—particularly in stable areas of the law—will make the Restatement more difficult to use and, perhaps, less relevant to the bench and bar.

Among the symposium’s most interesting pieces is an article by Professor Ellen Bublick, titled A Restatement (Third) of Torts: Liability for Intentional Harm to Persons—Thoughts.[1] In this article, Professor Bublick proposes a stand-alone Restatement (Third) of Torts project devoted to intentional torts.[2] In introducing her proposal, Professor Bublick provides excellent observations on the structure of theRestatement (Third) of Torts as the American Law Institute (“ALI”) continues to update its work in the area.[3] She then provides guidelines for how ALI might move forward with a new project specifically devoted to intentional torts.[4]

Professor Bublick’s primary thesis is that failing to produce a separate project on intentional torts risks leaving the Restatement (Third)structurally inconsistent, as the current “umbrella” provision on liability for intentional physical harm does not appear to cover the broad range of trespassory torts[5] that encompasses harms beyond the physical.[6] Although I agree with many of Professor Bublick’s points, I am ultimately skeptical about whether a new project is truly necessary, or even in the ALI’s best interests.  My primary concern is that excessive fragmentation of the Restatement of Torts—particularly in stable areas of the law—will make the Restatement more difficult to use and, perhaps, less relevant to the bench and bar.  So, despite stylistic differences between the Restatement (Second) of Torts and the Restatement (Third) of Torts, as well as some theoretical tension, I believe that current sections on intentional torts from the Restatement (Second) can remain harmoniously in place alongside the Restatement (Third)’s provisions.

As a starting point, it is important to note that much of what Professor Bublick seeks already exists in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm.  The Restatement (Third) includes a definition of intent.[7] It includes a definition of physical harm.[8] It also includes a liability provision for intentional physical harm.[9] What it does not include, according to Professor Bublick, is “a new provision for exceptions to liability” that would parallel similar sections in the Restatement (Third) relating to negligence.[10] Nor does the Restatement (Third) include specific sections on trespassory torts that do not involve physical harm.[11] Thus, as Professor Bublick begins her discussion, she suggests that “[w]ith three of the four provisions already enshrined in the existing Restatement (Third), it might seem that a future project could simply add the final provision (for exceptions to liability), import Restatement (Second)’s provisions regarding trespassory torts, and be finished.”[12] To this, I respond, why not?

Professor Bublick answers that such an approach is “untenable.”[13] One of her main concerns is that the trespassory torts encompass a broader category of harm than would be covered by the Restatement (Third)’s umbrella provision.[14] She also argues that the Restatement (Second) fails to “extend liability to all conduct intended to cause physical harm that does so.”[15] I briefly address both of these objections below.

To support her latter point, Professor Bublick provides an example, envisioning a hypothetical lifeguard who chooses not to save a drowning neighbor who was having an affair with her husband.[16] She then asserts that “this omission [by the lifeguard], which produced harm . . . might not count as a battery, and yet . . . might satisfy the Restatement (Third)’s umbrella rule.”[17] Given the breadth of the umbrella provision, I suppose that is true.  But I have a hard time believing that any court in the country would impose battery liability in such a situation given that Professor Bublick’s hypothetical lifeguard did not make contact with the victim.  The best source for this conclusion is theRestatement (Second) of Torts itself, which defines battery as requiring a harmful or offensive contact.[18] Simply incorporating this definition into the Restatement (Third)would more than adequately limit the reach of the umbrella provision and cause no discernible damage to the Restatement (Third)’s structure or style.

I address Professor Bublick’s first point in a similar fashion.  Professor Bublick is correct when she notes that the umbrella provision does not align perfectly with the range of interests that are protected by trespassory torts—for example, battery based on offensive contact, some instances of assault, false imprisonment, or even trespass to land actions where the defendant does not intend to cause damage to property.[19] Again, the breadth of the umbrella rule makes this true.  But none of the areas identified by Professor Bublick represent doctrine that has dramatically changed since the publication date of the Restatement (Second). Therefore, simple incorporation of the definitions contained in existing sections would more than adequately address the problems that Professor Bublick describes.  Ironically, the best source that supports this view comes from a work compiled and organized by Professor Bublick herself—the second edition of A Concise Restatement of Torts.[20] In the Concise Restatement of Torts, Professor Bublick organized key provisions from the Restatement (Second) and Restatement (Third) into a brief, coherent one-volume book that provides an excellent resource for students and practitioners alike.  In the first two sections of the Concise Restatement, Professor Bublick weaved together sections from the Restatement (Second) and Restatement (Third) in a way that clearly explicated the elements of and defenses to traditional intentional torts, including trespassory torts that do not require physical harm.[21] The fact that Professor Bublick introduced this book with the umbrella provision of the Restatement (Third) does nothing—at least in my view—to deter from the coherence of her work.[22]

In questioning Professor Bublick’s call for a stand-alone Restatement (Third) project on intentional torts, I do not challenge her suggestion that the style and structure of the newer projects are not a perfect fit with the Restatement (Second). I also acknowledge that Professor Bublick and others who are deeply involved in ongoing Restatement projects have expressed concern about creating what they describe as a “Restatement-light.”[23] In addition, there is little doubt that ALI leaders will need to continue to pay attention to coordination and consistency in the Restatement of Torts, not only in initiating new projects, but also in maintaining existing projects.  Of course, complications are multiplied every time a new piece to the puzzle is created.  So in an area like intentional torts that has largely remained stable and consistent, I question whether it makes sense to start anew.  The potential gains seem minimal at best.  At the same time, there is at least some risk that a new project will create additional complications, making the Restatement as a whole more difficult to use for those who rely on its clarity for guidance.  Certainly, the ALI has no shortage of suggestions regarding how to revise the Restatement of Torts, from clarifying which parts of the Restatement (Second) remain effective,[24] to determining the scope of strict-liability doctrines,[25] to addressing the role of foreseeability in proximate cause.[26] With the intentional torts, however, I would counsel to leave well enough alone.


[1]. Ellen M. Bublick, A Restatement (Third) of Torts: Liability for Intentional Harm to Persons—Thoughts, 44 Wake Forest L. Rev. 1335 (2009).

[2]. Id. at 1336.

[3]. See id. at 1336–46.

[4]. See id. at 1346–53.

[5]. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 5 (2010) (“An actor who intentionally causes physical harm is subject to liability for that harm.”).  Comment a to this Section describes it as an “umbrella rule,” and states that the “Restatement Second, Torts, remains largely authoritative in explaining the details of the specific torts encompassed by this Section . . . until the Third Restatement addresses the specific intentional torts.”  Id. cmt. a.

[6]. Bublick, supra note 1, at 1342–43.  Other leaders in the ALI have agreed.  See, e.g., Ellen Pryor, Restatement (Third) of Torts: Coordination and Continuation, 44 Wake Forest L. Rev. 1383, 1385 (2009) (noting the ALI working group’s rejection of a “Restatement-light” approach due to an “overall disconnect between the style and particularized approach of the Restatement (Second) and the Restatement (Third), as well as the inability to alter the deeper architecture of Division One (‘Intentional Harms to Persons, Land, and Chattels’) of the Restatement (Second) in the ways that might be necessary to fit with future restated topics.”); see also id. at 1392 (discussing the possibility of a new project on intentional torts).

[7]. Restatement (Third) of Torts: Liab. for Physical & Emotional Harm § 1 (2010).

[8]. Id. § 4.

[9]. Id. § 5.

[10]. Bublick, supra note 1, at 1342.

[11]. Id.

[12]. Id.

[13]. Id.

[14]. Id. at 1343.

[15]. Id. at 1344.

[16]. Id.

[17]. Id.

[18]. Restatement (Second) of Torts §§ 13, 18 (1965).

[19]. Bublick, supra note 1, at 1344.

[20]. Am. Law Inst., A Concise Restatement of Torts (Ellen Bublick ed., 2d ed. 2010).

[21]. See id. at 2–52.

[22]. It is worth noting that the late Professor Gary Schwartz did not believe the Restatement (Third) of Torts should devote significant attention to intentional torts when he wrote the original prospectus for a “basic principles” of torts project in 1995.  Gary T. Schwartz, Prospectus for Restatement (Third): Basic Principles: Report to the American Law Institute 6 (1995).   (Professor Schwartz was the first reporter for what later became known as the Restatement (Third) of Torts: Liability for Physical and Emotional Harm.)  In his prospectus, Professor Schwartz wrote that “a ‘basic tort principles’ restatement should not devote much attention to the entire range of intentional torts, currently dealt with mainly in Volume I of the Second Restatement.”  Id. Professor Schwartz noted a lack of significant appellate litigation in the intentional torts area subsequent to the promulgation of the Restatement (Second) of Torts, and stated that it would suffice for the new project to limit its focus in the area to ensuring a clear definition of intent.  Id. at 7–8.

[23]. See e.g., Pryor, supra note 6, at 1385 (discussing a “Restatement-light approach” to updating some topics in tort law by applying a less exhaustive review of areas of tort law that have remained stable).

[24]. See id. at 1390.

[25]. See Kenneth W. Simmons, Restatement (Third) of Torts and Traditional Strict Liability: Robust Rationales, Slender Doctrines, 44 Wake Forest L. Rev. 1355, 1356 (2009).

[26]. See David G. Owen, Figuring Foreseeability, 44 Wake Forest L. Rev. 1277, 1293–95 (2009).

By: Richard L. Cupp, Jr.

The Restatement (Third) of Torts is innovative in its approach to negligence liability for land possessors in cases involving intentional trespassers, and that is a good thing.  Excessive creativity in a Restatement formulation would not be helpful.  If a dominant jurisdictional position on an issue exists and it makes sense, the Restatements are often most useful to judges and lawyers when they simply restate that dominant position as clearly as possible.

Of course, a Restatement cannot credibly propose that courts adopt a formal duty limitation for a category of plaintiffs termed “bad guy” trespassers. However, I propose that the moral sentiment reflected in this loose and informal language is more or less what the courts seem to be getting at in these kinds of trespasser cases

Of course, sometimes case law is muddled, and articulating a clear dominant position is not possible.  In these situations, adopting the “best” approach in the eyes of the American Law Institute (“ALI”) may help courts to move forward.  The ALI standard of allowing Restatements to reflect the law “as it presently stands or might plausibly be stated by a court” permits some degree of flexibility in drafting formulations.[1]Overusing this flexibility would limit the Restatements’ usefulness over time as authoritative standards.

The difficulty, of course, is in determining how much flexibility is too much. The Restatement (Third) of Torts’s creativity in addressing duty toward intentional, morally culpable trespassers is not over the line—it is both appropriate and helpful for at least two reasons.  First, jurisdictions’ approaches to assessing potential liability for injuries to intentional and morally culpable trespassers are untidy and divided.[2]Thus, seeking to articulate a clear dominant rule would be problematic.  Second, this unique category of tort claims has a highly disproportionate impact on public acceptance of the civil justice system.  How these cases are adjudicated influences much more than the limited number of cases involving tort lawsuits by intentional, morally culpable trespassers.  Because of the public’s perception of this subject of tort claims as emblematic of perceived problems with the broader civil justice system, this is an area in which thoughtful leadership by the ALI is particularly important.

The somewhat creative standard set forth in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm section 52 is that land possessors do not owe any duty to “flagrant” trespassers other than the duty to refrain from intentionally, willfully, or wantonly inflicting physical harm, and to exercise reasonable care if the flagrant trespassers reasonably appear to be imperiled and helpless or unable to protect themselves.[3] The Reporters’ Note to section 52 seems to acknowledge that actual lawsuits involving flagrant trespassers seeking to collect tort damages from land possessors are probably rare.[4] However, despite the probable rarity of such lawsuits, they have played a leading role in inflaming public perceptions of an out-of-control tort system.

Few tort scenarios seem to arouse more public outrage than the prospect of an intentional and morally culpable trespasser—for example, a burglar—being injured during his trespass and suing the property’s possessor for damages sustained during this trespass.  At least two cases involving this sort of situation have received particular attention.  The 1971 case of Katko v. Briney[5] has earned a home in several tort law casebooks.[6] In Briney, the owners of an unoccupied Iowa farmhouse became frustrated over repeated break-ins at the farmhouse, and set up a spring loaded shotgun aimed at the door of one of the bedrooms.[7] The plaintiff burglarized the property and was seriously injured when he entered the bedroom, causing the gun to discharge.[8] The plaintiff successfully sued the property owners in tort (probably for battery)[9] and, in pursuit of collecting on his judgment, eventually joined in a lawsuit seeking to claim an interest in the title to the very property in which he had trespassed.[10] Briney involved an intentional tort rather than negligence and was misreported as involving an inhabited home (which would raise significant self-defense issues that were not present in the actual lawsuit), but nevertheless generated media attention that created a public outcry against the case.  In the wake of this outcry, many states enacted or debated “Briney bills” seeking to limit landowners’ liability for defensive measures taken against trespassers.[11]

A second case that was more directly significant in the foundation of section 52’s flagrant trespasser approach is Bodine v. Enterprise High School, which gained notoriety in the mid-1980s.[12] In Bodine, a teenager named Ricky climbed onto the roof of a high school building without permission in March 1982.[13] According to at least one version of events, he undertook this adventure “on something of a frolic.”[14] Unfortunately, Ricky “crashed through a painted-over and wholly undetectable skylight, fell thirty feet onto his head, and was rendered a quadriplegic.”[15] The teenager sued the school district for negligence and obtained a substantial settlement.[16] Beginning in the 1980s, indignant tort-reform advocates circulated widely perhaps exaggerated renditions of Bodine’s facts as an illustration of torts law gone wild.

One of the most significant tort-reform efforts that relied heavily on public anger over Bodine was California’s Civil Code section 847, which was enacted in 1985.[17] The law was “largely motivated by the Bodine case.”[18] As described by the Reporters’ Note to Restatement (Third) section 52, the California law “exempts land possessors from liability to entrants on the land who commit any one of 25 specified felonies, save for willful, wanton, or criminal conduct by the land possessor.”[19] The Restatement (Third)cites the law as supportive of its flagrant trespassers standard.  Professor Stephen Sugarman’s article in the Wake Forest Law Review symposium issue addressing the Restatement (Third) of Torts stated that section 52 is “broadly based” on the California statute.[20]

Strong public reactions to cases like Briney and Bodine demonstrate that the significance of successful tort claims by morally culpable trespassers goes far beyond the amount of money involved in the lawsuits.  In the eyes of many members of the public, these cases have served as an indictment of the civil justice system in general.  The impact of Brineyand Bodine demonstrates that the public emphatically desires clear distinctions between morally blameworthy trespassers and others regarding their ability to sue a land possessor.  The Restatement (Third) standard appropriately responds to this strong public sentiment.

Perhaps the most creative aspect of the Restatement (Third) standard is its adoption of the term “flagrant” to describe the type of trespassers to whom a duty is the most limited.  The Restatement (Third) acknowledges that “the concept of a flagrant trespasser is new to the Restatement of Torts” and describes it as an effort to synthesize divided approaches in the courts regarding how to address trespassers.[21] The Restatement (Third) describes “flagrant” as being used “in the sense of egregious or atrocious,” but also states that “no single word can capture the concept” and that different jurisdictions might develop somewhat varying interpretations reflecting how they choose to balance human safety and property-ownership rights.[22]

Given its novelty, it is not surprising that some challenges to the choice of the word “flagrant” have already arisen among scholars.  In 2009, Professor James Henderson argued in an article in the Wake Forest Law Review addressing section 52 that he would prefer the terms “undeserving” or “reprehensible” because “[t]hese adjectives more candidly signal that it is not the entry without permission, as such, that is different from one case to the next, but rather the moral standing of any trespasser to insist that the possessor invest in precautions on his behalf.”[23] Professor Henderson also noted that an earlier draft of the standard used the word “culpable” and stated that he prefers “culpable” over “flagrant” as well.[24]

Interestingly, Professor Henderson also used the term “bad guy” to describe the kind of trespasser the standard is seeking to exclude, but he did not suggest this term in his list of preferable alternatives to “flagrant.”[25] Professor Sugarman also used the term “bad guy” to describe the type of trespasser at issue in his 2009 Wake Forest Law Review article addressing the standard.[26] The term seems to fit the general sentiment of the standard.  One might guess that the Restatement (Third) did not use the term “bad guy” and that neither Professor Henderson nor Professor Sugarman suggested it as the term that should be used, despite using it themselves, in part because it is so informal, vague, and imprecise.

Of course, a Restatement cannot credibly propose that courts adopt a formal duty limitation for a category of plaintiffs termed “bad guy” trespassers.  However, I propose that the moral sentiment reflected in this loose and informal language is more or less what the courts seem to be getting at in these kinds of trespasser cases, and thus that any specific language used by the Restatement (Third) or by the courts will probably not be decisive regarding how cases are decided so long as it successfully conveys this moral theme.  Whether one favors the Restatement (Third)’s word “flagrant,” or instead favors “undeserving,” “reprehensible,” “culpable,” or some other word, the results in litigated cases will likely be mostly the same—so long as the idea is generally communicated that “bad guys” who have the chutzpah to trespass under morally condemnable circumstances and then sue if they are hurt on the property should lose in most circumstances.

Tort liability decision makers may be more focused on finding a way to apply their “rough sense of justice” than on precise language used in legal standards.[27] The term “flagrant” trespasser seems to give decision makers a solid vehicle for reaching decisions consistent with their rough sense of justice, while allowing jurisdictions flexibility to impose at least some boundaries on how the standard is interpreted.  In the United States at present, one of the most common associations with the word “flagrant” may be the concept of a particularly egregious foul in the sport of basketball.  The National Federation of State High School Associations defines a flagrant foul as “a personal or technical foul of a violent or savage nature.”[28] The National Collegiate Athletic Association (“NCAA”) defines a flagrant foul as “a personal foul that involves severe contact with an opponent or involves contact that is extreme in nature while the ball is live.”[29] The National Basketball Association (“NBA”) defines a flagrant foul as “unnecessary and/or excessive contact” committed by a player.[30] If a flagrant foul is sufficiently serious, the offending player may be ejected from the game and, in the NBA, subjected to a fine.[31] The sense of moral indignation basketball fans sometimes feel over the commission of a flagrant foul[32] may be at least loosely comparable to the moral indignation that prevents injured “bad guy” trespassers from recovering tort damages in most circumstances.

The history of courts struggling with distinctions between invitees, licensees, and trespassers in various circumstances illustrates the difficulty in trying to be too detailed and concrete regarding land-possessor liability rules.  This was part of the message of Rowland v. Christian, which triggered the string of cases replacing these distinctions in part or in whole with a general duty of reasonable care.[33] Rejecting “rigid classifications”[34] that led to “confusion, complexity, and fictions,”[35] the court held that applying a more case-specific standard of reasonableness under the circumstances would better promote justice.[36]

Although the Rowland court was perceptive in critiquing the complex and rigid rules that previously characterized land possessor liability standards, it went a bit further than many members of the public were willing to travel by extending a duty of due care even to “bad guy” trespassers.  As illustrated by California’s enactment of Civil Code section 847, society’s rough sense of justice favored disallowing such claims in most circumstances, and that rough sense of justice trumped Rowland.  The Restatement (Third)’s flagrant-trespassers approach recognizes the disconnect between this aspect of Rowland and societal values that has become increasingly apparent over time.  The Restatement (Third)’s approach promotes honoring general but strongly felt moral distinctions that society holds dear rather than seeking to engineer a standard that may not have sufficient grounding in the reality of torts law.

Professor Sugarman pointed out that what he calls “trumping values” may provide a good basis for declining to impose a duty of due care in these cases.[37] Perhaps a “trumping value” may be considered one that stands out of the ordinary, leading a court to act differently than it would in most circumstances.  Professor Sugarman recognized that the trumping value in flagrant trespasser cases is that “the land possessor’s ordinary right to control access to the land is too offended if a victim who entered without consent and intent on egregious wrongdoing is allowed to recover in tort from the land possessor.”[38]

Similarly, general tort standards should be trumped if in a particular application they cause too much offense to strong societal values.  Precisely because societal values seem to be so strongly offended in cases involving bad-guy trespassers winning tort damages, the exact language used to flag a bad-guy situation is not nearly as important as the broader acknowledgement that declining to extend a duty to bad guy trespassers is appropriate.  Most tort liability decision makers will bring with them to the court room a strong desire to limit or negate liability in such cases; in most cases these decision makers will not likely need more than language providing the general sense that the “bad guys” described by Professors Henderson and Sugarman should not prevail absent the special circumstances set forth in the Restatement (Third).  The words “undeserving” or “reprehensible” would also probably work, but “flagrant” has a moral tone that seems to fit the underlying basis for limiting duty in these cases.  Society’s rough sense of justice is an intensely consequential issue in this area of tort law, and the Restatement (Third)’s standard is a worthy structure for housing it.


* John W. Wade Professor of Law, Pepperdine University School of Law.  I wish to thank Kendra Lounsberry for her excellent research assistance.

[1]. According to the American Law Institute,

Restatements are addressed to courts and others applying existing law.  They aim at clear formulations of common law and its statutory elements or variations and reflect the law as it presently stands or might plausibly be stated by a court.  Restatement black-letter formulations assume the stance of describing the law as it is.

Am. Law Inst., Capturing the Voice of the American Law Institute: A Handbook for ALI Reporters and Those Who Review Their Work 4 (2005), available athttp://www.ali.org/index.cfm?fuseaction=projects.main.

[2]. Reporters’ note for Restatement § 51 identifies three major approaches for determining land possessor liability to trespassers.  Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 51 reporters’ note cmt. a (Tentative Draft No. 6, 2009).  Twenty-four states still follow the traditional common law rule that distinguishes between trespassers, invitees, and licensees.  Id. Under this approach, land possessors do not owe a duty of reasonable care to trespassers, although there are a number of exceptions.  Id.Nine states follow a second major approach, which eliminates the distinctions between entrants and instead adopts a unitary duty of reasonable care.  Id. The seminal case adopting this approach is Rowland v. Christian, 443 P.2d 561 (Cal. 1968).  Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 51 reporters’ note cmt. a (Tentative Draft No. 6, 2009).  Fifteen states follow the third approach, a variation of Rowland, which applies a unitary standard of reasonable care to licensees and invitees but eliminates a duty of care towards trespassers.  See id.

[3]. Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 52 (Tentative Draft No. 6, 2009).

[4]. In reference to a California statute limiting land possessors’ liability to trespassers engaged in any of twenty-five specified felonies, the Reporters noted that “[i]n the 22 years between the time the California statute was enacted and this Reporters’ Note was prepared, it has been invoked exceedingly rarely.”  Id.

[5]. 183 N.W.2d 657 (Iowa 1971).

[6]. See, e.g., George C. Christie et al., Cases and Materials on the Law of Torts 93 (4th ed. 2004); John L. Diamond, Cases and Materials on Torts 67 (2d ed. 2008); Meredith J. Duncan & Ronald Turner, Torts: A Contemporary Approach 152 (2010); Ward Farnsworth & Mark F. Grady, Torts: Cases and Questions 85 (2d ed. 2009); Marc A. Franklin, Robert L. Rabin & Michael D. Green, Tort Law and Alternatives: Cases and Materials 937 (8th ed. 2006); Thomas C. Galligan et al., Tort Law: Cases, Perspectives, and Problems 144 (4th ed. 2007); John C.P. Goldberg, Anthony J. Sebok & Benjamin C. Zipursky, Tort Law: Responsibilities and Redress 603 (2d ed. 2008); David W. Robertson et al., Cases and Materials on Torts 63 (2d ed. 1998); Victor E. Schwartz, Kathryn Kelly & David F. Partlett, Prosser, Wade and Schwartz’s Torts: Cases and Materials 107 (11th ed. 2005).

[7]. Briney, 183 N.W.2d at 658.

[8]. Id.

[9]. Id. at 662.  The plaintiff clearly proceeded on an intentional tort theory, and William Prosser suggested that battery is the correct action, but the case does not actually state which cause or causes of action were pleaded. See Geoffrey W.R. Palmer, The Iowa Spring Gun Case: A Study in American Gothic, 56 Iowa L. Rev. 1219, 1223–1225 (1971).

[10]. As described in Prosser, Wade & Schwartz’s Torts:

Katko pled guilty to petty larceny and received a 30-day suspended sentence and a $50 fine.  The Brineys had to sell 80 acres of their 120 acre farm in order to pay the judgment in this case.  A strange development later arose between the parties.  When the 80 acres were put up for judgment sale and there were no bids above the minimum price of $10,000, three neighbors borrowed money to purchase the land for a dollar more, expecting to hold it for the Brineys until they won their appeal.  When they did not win, the neighbors leased the land back to them for enough to pay taxes and interest costs on the money the neighbors had borrowed.  Several years later when land values rose, the neighbors offered to sell it back to Brineys at a price they could not afford.  One of the neighbors then bought the property from the others for $16,000 and sold it to his son for $16,500.  The Brineys and Katko, to whom the Brineys still owed money from the judgment, then sued the neighbors, arguing that the land was being held in trust for the Brineys and that they were entitled to the profit from the increase in value.  Just before the case came to trial, it was settled for a sum large enough to pay the remainder of Brineys’ judgment to Katko.

Schwartz, Kelly & Partlett, supra note 6, at 110.

[11]. Id.

[12]. Bodine v. Enterprise High School was settled out of court.  For a discussion of the facts of Bodine, see Wendy Lilliedoll, An Unexpected Windfall for California’s Tort Reform Movement: Bodine v. Enterprise High School 12–15 (2004) (unpublished student paper), available at http://www.law.berkeley.edu
/faculty/sugarmans/ (follow “Wendy Lilliedoll: An Unexpected Windfall for California’s Tort Reform Movement: Bodine v. Enterprise High School” hyperlink).  Professor Stephen Sugarman described the Bodine case as “celebrated.”  Stephen D. Sugarman, Land-Possessor Liability in the Restatement (Third) of Torts: Too Much and Too Little, 44 Wake Forest L. Rev. 1079, 1082 (2009).

[13]. Lilliedoll, supra note 12, at 13–14.

[14]. Id. at 1.

[15]. Id.

[16]. Id. at 3.

[17]. Id. at 38.

[18]. Id. at 39; see also Sugarman, supra note 12, at 1082.

[19]. Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 52 reporters’ note cmt. a (Tentative Draft No. 6, 2009).

[20]. Sugarman, supra note 12, at 1082.

[21]. Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 52 cmt. a (Tentative Draft No. 6, 2009).

[22]. Id.

[23]. James A. Henderson, Jr., The Status of Trespassers on Land, 44 Wake Forest L. Rev. 1071, 1077 (2009).

[24]. Id.

[25]. Id. at 1075, 1077.

[26]. Sugarman, supra note 12, at 1082.  Professor Sugarman used the term in quotes and, not surprisingly, did not suggest that it should replace the word “flagrant.”

[27]. Justice William S. Andrews famously used the phrase “rough sense of justice” to describe the overall process of making proximate-cause determinations in Palsgraf v. Long Island Railroad Company, 248 N.Y. 339, 352 (1928) (dissenting).  I have grown increasingly attached to his phrase as a general description of the moral impulses that often drive tort law. See, e.g., Richard L. Cupp, Jr., Believing in Products Liability: Reflections on Daubert, Doctrinal Evolution, and David Owen’s Products Liability Law, 40 U.C. Davis L. Rev. 511, 517, 527–28 (2006); Richard L. Cupp, Jr. & Danielle Polage, The Rhetoric of Strict Products Liability Versus Negligence: An Empirical Analysis, 77 N.Y.U. L. Rev. 874, 922, 927 (2002).

[28]. The Nat’l Fed’n of State High School Ass’ns, 2009–10 NFHS High School Basketball Rules Book 30 (Mary E. Struckhoff ed., 2009).

[29]. Nat’l Collegiate Athletic Ass’n, NCAA Basketball 2010 and 2011 Men’s and Women’s Rules 71 (Ty Halpin & Rachel Seewald eds., 2009), available athttp://www.ncaapublications.com/productdownloads/BR11.pdf.

[30]. Rule No. 4–Definitions, NBA.com (Jan. 31, 2001, 12:00 A.M.), http://www.nba.com/analysis/rules_4.html.

[31]. Rule No. 12–Fouls and Penalties, NBA.com (Jan. 31, 2001, 12:00 A.M.), http://www.nba.com/analysis/rules_12.html?nav=ArticleList.

[32]. This assumes, of course, that a player for the team a fan does not like committed the flagrant foul.  Flagrant fouls in basketball never seem quite as heinous when committed by a player for whom the fan has a positive bias.  An analogy to perceptions of flagrant trespassers may fit here as well.

[33]. Rowland v. Christian, 443 P.2d 561 (Cal. 1968), superseded by statute, Cal. Civ. Code § 846 (West 2010).

[34]. Id. at 568.

[35]. Id. at 569.

[36]. Id. at 568.

[37]. Sugarman, supra note 12, at 1083.

[38]. Id.

By: Michael L. Wells

Introduction

In his contribution to Wake Forest Law School’s 2009 Symposium on the Restatement (Third) of Torts, Professor Kenneth Abraham starts with two propositions, one descriptive, the other normative.  The descriptive claim is that “tort law . . . is mature and largely stable,”[1] and  that “[o]ver time, the law of different states will converge.”[2] As  he points out, “The formation of the American Law Institute (“ALI”) itself, and the project of restating the law that the ALI . . . undertook” depends on these premises.[3]

I distrust the general notion that centralized rule making works better than law making dispersed over a large and culturally diverse nation like the United States.

The project of restating the law also depends on a normative premise, namely that  “mov[ing] that process along” is a worthy goal.[4] The idea that the private law should be the same in all fifty states certainly seems preferable to anyone who has coped with the difficulties of working with variations among states on issues of tort law.  Convergence not only avoids arbitrary differences in the way similarly situated litigants are treated, but also offers a solution to the many practical difficulties that arise when a given transaction crosses state lines.  In any event, adherence to this norm may be a matter of existential necessity for the ALI.  Otherwise, one is hard put to justify the resources that are expended in producing the Restatements.  The descriptive and normative claims are related in that the value of moving the process along is greater or lesser depending on how successful the project is likely to be.

Whether Professor Abraham subscribes to these propositions is not entirely clear from his article.  Since his project was to identify “stable divisions of authority” within the tort system, the premise of unity serves merely to highlight those divisions.[5] My aim here is not to find fault with anything in his article, but rather to examine the notion that tort law does and should move toward unity.  For convenience, I will call these descriptive and normative claims the “convergence thesis.”

Professor Abraham’s article addresses a problem for the descriptive side of this thesis.  He acknowledges that “[t]here are . . . areas of doctrine over which the states have what seems to be permanent or at least long-term disagreement.”[6] For the most part, he argues, these areas can be pigeonholed into three categories: “(1) developmental dead ends, (2) fundamental clashes of values, and (3) concerns about consistency of administration.”[7] If I understand Professor Abraham correctly, his point is that areas of disagreement do not necessarily pose a challenge to the general tendency toward convergence.  But Abraham seems to assure us that the divisions are discrete, limited, and themselves “stable.”  His point is well taken, for no general description of a system as large and complex as American private law can hope to account for its every feature.  Nonetheless, in this Article, I will raise questions about both the descriptive and normative claims of the convergence thesis.

I.  Transformations in Tort Law

As a description of tort doctrine, the notion that there is a basic unity across the states—except for a few stable divisions of authority on matters like market-share liability and the treatment of trespassers—seems to me to be correct over the very short term.  Over longer periods of time, however, tort law is more dynamic than Professor Abraham’s description suggests.  Rather than being “stable divisions of authority,” large areas of tort law are transformed, sometimes in subtle ways, and sometimes radically.  Compare, for example, the contents of the second edition of the Gregory and Kalven casebook, published in 1969,[8] with the ninth edition of the book, now edited by Richard Epstein and published in 2008.[9] Gregory and Kalven begin their casebook with causation, and the book contains no materials at all on either market-share liability or “increased risk,” theories of causation that have taken hold in some courts in the interim.[10] The 1969 edition of the Gregory and Kalven casebook was published a few years after theRestatement (Second) of Torts first addressed products liability in 1965.[11] Most of the cases deal with privity, the warranty-tort distinction, and the economic loss rule that obliges some litigants to sue in contract rather than tort.[12] Current casebooks contain extensive treatments of design defect, the duty to warn, the plaintiff’s conduct, federal preemption, and other matters.[13] These do not appear in the earlier edition of the book for the very good reason that none of these cases had been decided.  On the treatment of trespassers, the earlier book notes the “recent California case, Rowland v. Christian” for the proposition that the older rule “may now be in the process of change.”[14] The more recent edition includes Rowland as a main case and surveys the mixed reception the case received in the intervening four decades.[15] The Gregory and Kalven casebook includes a long chapter entitled “Ultimate Policy Issues” devoted mainly to no-fault schemes that would replace or supplement tort remedies with first-party insurance.[16] This idea was fashionable at the time, and New Zealand actually adopted such a scheme in 1972.[17] But no-fault schemes fell out of favor in the forty years between the publication of the two books.  Epstein’s chapter on policy focuses on specific insurance schemes, primarily workers’ compensation and no-fault car insurance.[18] The “tort reform” movement, which has generally involved state-by-state legislation, has produced another set of variations among jurisdictions.[19]

One could go on, but these examples will suffice for my purposes.  Indeed, noting the changes in tort law over the past forty years may seem not only to belabor the obvious, but also to miss Abraham’s point.  The ALI pays close attention to changes over time.  Those changes are the main reason for drafting the Restatement (Second) of Torts in the 1960s, and a third one today.  Defenders of the convergence thesis would no doubt charge that by noting changes in the law over time I have mixed apples and oranges.  It is clear that Professor Abraham means to refer to convergence at a given point in time and does not mean to deny that tort law changes significantly over time.  Given the extent of change over time, Abraham must mean to assert that change over time is different from, and compatible with, convergence at any given point in time.

But the distinction between change over time and variation at a given point in time is not as sharp as defenders of convergence may imagine it to be.  One reason is that in a system of private law that includes over fifty jurisdictions, each of them is sovereign over the matters of general tort law covered by the various Restatements.[20] In matters of common law, change comes to each state at a different pace. Change over time begins with one jurisdiction deciding to break with precedent, as the California Supreme Court did in Rowland with respect to landowner liability.  But other jurisdictions do not then consider the issue simultaneously or even in the same legislative session, and then either adopt it or not.  Rather, changes over time occur at an uneven pace from one jurisdiction to another.  Their courts take up the issue periodically over the ensuing decades, depending on whether and when an appropriate case raises it.  Even if the issue is one as to which the law ultimately does “work[] itself pure”[21]—as landowner liability does not—most of the time the law will differ from one place to another.

In addition, judicial opinions can be unclear on whether any change has taken place on a given matter and the substance of whatever change that may have occurred.  Consider the design-defect issue discussed by Abraham.[22] In one view, the Georgia Supreme Court has endorsed the “reasonable alternative design” test of the Restatement (Third) on products liability.[23] But the case also says that “[u]nder Georgia law, the proper analysis in a design defect case is to balance the risks inherent in a product design against the utility of the product so designed,”[24] and refers to the court’s previous “adoption of the risk-utility analysis” in its leading decision on the topic.[25] A prudent lawyer would conclude that exactly what Georgia has done remains an open question, though it surely has rejected the “consumer expectations” test that Abraham discusses.[26]

If all of the “changes in tort doctrine over time” had already been set in motion by, say, August 1, 2010, the process of change as it moves from one jurisdiction to another would be a temporary problem for the convergence thesis.  But no one would endorse that premise, as it is wholly unrealistic to suppose that the political, social, technological, and cultural factors that produce changes in the common law have now come to an end.  Perhaps Professor Abraham means to predict that the only political, social, technological, and cultural changes that will affect tort law going forward are discrete ones that will lead to more examples of the narrow and “stable divisions of authority” that he identifies.  Lacking a crystal ball, I cannot disprove that prediction, but I would suggest that it is ahistorical and implausible.  Someone making a similar prediction about products liability in 1970 would have been proven wrong by the exponential growth of products law that began in that decade.  Nor did anyone foresee the growth of mass tort litigation and the doctrinal innovations it would spawn.[27] Developments of similar scope surely await us, and with them will come less convergence, followed by sporadic, uncertain, and incomplete moves toward unity, followed by more innovations and renewed disparity. The ALI will continue to struggle to keep up.

II.  The Benefits of Convergence in Tort Law

The descriptive question raised by the plausible “at a given moment in time” version of the convergence thesis is not binary, but rather a matter of degree—not whether there is convergence at a given moment in time, but how much convergence we have attained. Answering this question is not just a matter of counting up doctrines and splits of authority.  It necessarily has a qualitative aspect: one must ask whether the areas in which courts disagree are especially significant or not.  Reasonable people can differ about the answer.

The more interesting question for me is the normative one: should we make an effort to achieve greater convergence, through Restatements and other means?  The first point that needs to be made about this question is that our system of private law is not a unitary one in which the Supreme Court of the United States exercises final authority over all tort law.  In such a system, the case for promoting convergence would be compelling.  Allowing variations within a system to persist indefinitely would be intolerable, as persons governed by the same set of legal rules would be treated differently.  At the time of the first Restatement of Torts in the 1930s,[28] it was possible to conceive of our system in this way, or to imagine it moving in this direction, for the federal courts were free, under Swift v. Tyson,[29] to follow common law rules of their own choosing.  But “the benefits expected to flow from the rule did not accrue,”[30] and the Court eventually overruled Swift in Erie R.R. Co. v. Tompkins.[31] Rather than opting for a unitary body of private law, Erie signaled that our federal system treats the great bulk of private law, including torts, as state law.[32] Erie not only put to rest Swift’s futile dream of a nationally uniform common law but also declared that “there is no federal general common law.”[33]

After Erie, arguments for and against convergence boil down to the costs and benefits of variety versus unity in the common law. Variations among states certainly add a layer of complexity and uncertainty to business planning and to litigation that crosses state lines, as issues may arise as to which state’s law applies to a given issue.  A whole body of law on “conflicts of law,” itself important enough to warrant a law school course on the topic, addresses those issues.  Litigants who seem to be similarly situated may be treated differently on account of the operation of conflicts principles.[34] Convergence would lessen the incidence of that kind of unfairness.

A quite distinct argument for convergence concentrates on the quality of the rules themselves.  It is plausible to believe that a centralized decision maker, like the ALI, will construct better rules than a myriad of state courts.  The ALI has access to all of the decisions of all of the state courts, as well as the expertise of leading judges, lawyers, and academics.  The Reporters and Advisory Committees can take their time and are obliged to shed their partisan concerns.  Under these conditions, issues can be addressed deliberately, disinterestedly, and free from the distractions of litigation.[35] The aim of improving the law through Restatements can only be achieved to the extent courts everywhere endorse convergence and follow the Restatement formulation of the doctrine. Consider, for example, Professor Abraham’s discussion of the diverse views among states concerning trespasser liability.[36] One implication of the “superior rule maker” argument for convergence is that the forty-one states that have rejected the Restatement (Second)’srule on trespassers should change their law, just because a superior decision maker has made a different choice.  As for Professor Abraham, his discussion of the topic carefully avoids taking sides.

On the other hand, an array of arguments can be marshaled on the opposing side:

•  One is entitled to doubt the superior wisdom of the ALI Reporters and Advisory Committees.  Some have charged that the drafting of modern Restatements may place an “extraordinary burden” on the participants “of reconciling the demands of law and politics.”[37]

•  Even if political compromises can be avoided, it is reasonable to think that calm and detachment are not necessarily virtues.  Better rules may be made in the heat of conflict, under pressure to reach conclusions that have significant impact on real litigants.

•  Variations among jurisdictions permit us to test the impact of one rule compared to another over time and better evaluate its quality.

•  In a big country, the social and cultural underpinnings of tort law may differ from one place to another.  The nonflagrant trespasser may be viewed as a more serious problem in a rural state than an urban one, such that a “no recovery” rule is appropriate in the former while the Restatement (Third)’s formulation is appropriate for the latter.

•  The federal structure of our system of government reflects a preference for localized over centralized decision making on matters that neither the Constitution nor Congress have addressed.  The point of Erie was not merely to do away with Swift.  Granting that there is a case for convergence, Erie reflects the value that our federal system places on the benefits of variety over those of unity.

•  In a centralized system, one cannot easily avoid a rule one finds repugnant.  When the issue is governed by state law, one can move away.

For my part, this latter set of arguments carries the day.  While the case for convergence has merit, I distrust the general notion that centralized rule making works better than law making dispersed over a large and culturally diverse nation like the United States.  With regards to tort law in particular, it is, as it was eighty years ago, “one of the most dynamic fields of government.”[38] It seems to me unwise to aim for convergence in such an area, even if that aim could be achieved.


[1].   Kenneth S. Abraham, Stable Divisions of Authority, 44 Wake Forest L. Rev. 963, 963 (2009).

[2].   Id. at 964.

[3].   Id. at 963.

[4].   Id.

[5].   Id. at 964.

[6].   Id.

[7].   Id.

[8].   Charles O. Gregory & Harry Kalven, Jr., Cases and Materials on Torts (2d ed. 1969).

[9].   Richard A. Epstein, Cases and Materials on Torts (9th ed. 2008).

[10].   See Gregory & Kalven, supra note 8, at 5–20.

[11].   See Restatement (Second) of Torts § 391 (1965).

[12].   See Gregory & Kalven, supra note 8, at 584–631.

[13].   See Epstein, supra note 9, at 723–852.

[14].   Gregory & Kalven, supra note 8, at 404 (discussing Rowland v. Christian, 443 P.2d 561 (Cal. 1968)).

[15].   See Epstein, supra note 9, at 593–606.

[16].   Gregory & Kalven, supra note 8, at 782–910.

[17].   For a description and critique of the plan, see generally James A. Henderson, The New Zealand Accident Compensation Reform, 48 U. Chi. L. Rev. 781 (1981).

[18].   See Epstein, supra note 9, at 961–1012.  The New Zealand plan receives just six pages at the end of the chapter.  See id. at 1012–18.

[19].   See Epstein, supra note 9, at 419–20 (discussing statutory modifications of joint and several liability).

[20].   See Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).

[21].   Abraham, supra note 1, at 963 (quoting Omychund v. Barker, (1744) 26 Eng. Rep. 15 (Ch.) 23).

[22].   Id. at 967–70.

[23].   See James A. Henderson, Jr. & Aaron D. Twerski, Products Liability: Problems and Process 185(6th ed. 2008) (citing Jones v. NordicTrack, Inc.,274 Ga. 115, 118 (2001), for the proposition that under Georgia risk-utility standards “the ‘heart’ of a design defect case is the reasonableness of selecting from among alternative product designs and adopting the safest feasible one”).

[24].   Jones v. Nordictrack, Inc., 550 S.E.2d 101, 102 (Ga. 2001).

[25].   Id. at 103 (citing Banks v. ICI Ams., 450 S.E.2d 671, 674 (Ga. 1994)).

[26].   Abraham, supra note 1, at 969–70.

[27].   Many of these innovations are examined in Richard A. Nagareda, The Law of Class Actions and Other Aggregate Litigation (2009).

[28].   See 4 Restatement of Torts (1939); 3 Restatement of Torts (1938); 2 Restatement of Torts: Negligence (1934); 1 Restatement of Torts: Intentional Harms to Persons, Lands, and Chattels (1934).

[29].   41 U.S. 1, 19 (1842), overruled by Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938).

[30].   Erie, 304 U.S. at 74.

[31].   Id. at 79–80.

[32].   See Henry M. Hart, Jr., The Relations Between State and Federal Law, 54 Colum. L. Rev. 489, 504–05 (1954).

[33].   Erie, 304 U.S. at 78.

[34].   For example, suppose that a North Carolina resident and a Georgia resident are both driving while texting and collide on a roadway somewhere.  Each sues the other for negligence and each raises a contributory negligence defense.  Both are found negligent as defendants and contributorily negligent as plaintiffs.  Assume that under the conflicts rule of the jurisdiction where the suits are brought the plaintiff’s fault is governed by his residency.  The result is that the Georgian will have his recovery reduced under Georgia’s comparative negligence rule, while the North Carolinian will recover nothing under North Carolina’s absolute defense.  See Ga. Code Ann. § 51-12-33(a) (2010) (“Where an action is brought against one or more persons for injury to person or property and the plaintiff is to some degree responsible for the injury or damages claimed, the trier of fact, in its determination of the total amount of damages to be awarded, if any, shall determine the percentage of fault of the plaintiff and the judge shall reduce the amount of damages otherwise awarded to the plaintiff in proportion to his or her percentage of fault.”); Sorrells v. M.Y.B. Hospitality Ventures of Asheville, 332 N.C. 645, 648, 423 S.E.2d 72, 73–74 (1992) (holding that a finding of contributory negligence bars recovery from a defendant for acts of ordinary negligence).

[35].   See Catharine Pierce Wells, A Pragmatic Approach to Improving Tort Law, 54 Vand. L. Rev. 1447, 1448 (2001) (describing the aspirations of the ALI as it undertook the process of restating the law).

[36].   See Abraham, supra note 1, at 967–68.

[37].   Marshall S. Shapo, In Search of the Law of Products Liability: The ALI Restatement Project, 48 Vand. L. Rev. 631, 635 (1995).

[38].   Leon Green, The Torts Restatement, 29 Ill. L. Rev. 582, 585 (1935).

By: Vincent R. Johnson

Introduction: Broad Territory

When I talk to foreign audiences, I often emphasize the fact that in the United States, unlike in many other countries,[1] tort law is a large and dynamic field.  However, despite my pressing that point, listeners may fail to appreciate the broad scope and importance of this area of American law.

The bad news is that the task of completing the Restatement (Third) is becoming somewhat urgent. In the second decade of the twenty-first century, students are routinely asked by professors to restate rules that they must regard as “ancient”— sections in the Restatement (Second) of Torts that were published in 1965, 1977, and 1979.

That probably is not surprising.  The domain of American tort law is immense.  Everyday scores of courts in dozens of jurisdictions, hand down tort decisions on a nearly endless range of issues.  Indeed, a large segment of the American legal profession makes its living, in whole or in part, by litigating torts.

The tremendous territory covered by American tort law is suggested by the great amount of work still left to be done on the Restatement (Third) of Torts.  Work on the Restatement (Third) has been diligently underway for roughly twenty years, and much has been accomplished.  However, what I personally think of as the most educationally valuable parts of the Restatement (Second) of Torts have not yet been touched by the work on the Restatement (Third).

When I advise first-year law students, I recommend that they use the various Restatements to help them master the subjects in tort law that are either the most elementary or the most complex.  The former group includes a number of “simple” intentional torts that are often front-loaded in basic law school torts courses: battery, assault, false imprisonment, trespass to land and chattels, and conversion.  The latter group encompasses several topics that, although vitally important, are so complex that they are commonly omitted from first-year torts classes and left to advanced law school courses.  These topics include misrepresentation, defamation, invasion of privacy, tortious interference, injurious falsehood, and nuisance.

My advice to students reflects this line of reasoning: the Restatement sections dealing with the “simple” intentional torts are almost invariably clear, colorful, and easy to grasp.  Those parts of the Restatement help students to understand the interplay of general rules and exceptions, and nicely demonstrate how factual differences drive the application of the law.  In contrast, the Restatement sections dealing with the “advanced” subjects do a beautiful job of breaking complex subjects into manageable parts and allowing students to grapple effectively with extraordinarily challenging issues.  Those issues include, among others, questions dealing with tort liability related to the exercise of free speech rights, legal protection of privacy interests, commercial deception, and the limits of business competition.

I. A Pressing Task

From my perspective, some of the most important and interesting work on the Restatement (Third) lies ahead.  That is the good news.  The bad news is that the task of completing the Restatement (Third) is becoming somewhat urgent.  In the second decade of the twenty-first century, students are routinely asked by professors to restate rules that they must regard as “ancient”—sections in the Restatement (Second) of Torts that were published in 1965, 1977, and 1979.  Those provisions were promulgated long before many of today’s law students were born, and well before a host of modern technologies transformed modern life.  Fortunately, in the Restatement (Second), the “simple” and “advanced” areas of tort law have held up reasonably well.  Nevertheless, until work on the Restatement (Third) of Torts is complete, it is difficult for users of the Restatement to even determine the currently controlling rules.  A law professor may know that volume two of the Restatement (Second) of Torts is essentially obsolete and that volumes one, three, and four are still generally the latest word on the subjects they cover.  But law students, lawyers, and judges probably do not have that same advantage in terms of differentiating which parts of theRestatement (Second) still survive.

Moreover, there is a need to finish the Restatement (Third) of Torts before it is time to start the fourth.  It will not be long before it is necessary to restate the law of products liability, which was the first part of the work completed for the Restatement (Third) of Torts.

II. The Road Ahead

It is reassuring that, as Professor Ellen Pryor explains in her article,[2] the Restatement (Third) of Torts working group has rejected the idea of a “Restatement-light” patched together from the recent projects of the Restatement (Third)[3] and many sections in the Restatement (Second) that have not been superseded.  Moreover, the working group’s list of the major topics that should be included in a fully integrated third Restatement does a good job charting the work that remains to be done by the American Law Institute (“ALI”).[4] That list includes: “Intentional Torts to Persons,” “Economic Torts,” “Torts Relating to Land and Water,” “Defamation and Privacy,” “Damages for Physical and Emotional Harm,” and perhaps other topics (such as complex malpractice issues).[5]

Of course, it is possible to quibble with the working group’s list. The category called “Torts Relating to Interests in Land and Water” seems likely to include the law of public and private nuisance. However, treating nuisance actions as “torts relating to interests in land and water” seems destined to preempt any serious consideration of the recent judicial precedent holding that injuries related to mass-marketed products, such as handguns and lead paint, should be actionable as nuisances.[6] Nevertheless, the categories identified by the working group offer a good starting point for dividing up the remaining work.

III. Recommendations

As a law professor, I would like to offer these thoughts to those who will lead the efforts to bring the Restatement (Third) of Torts to a conclusion:

First, the sections dealing with the simple intentional torts (battery, assault, false imprisonment, trespass to land and chattels, and conversion) should be revised in a way that retains the rich doctrinal complexity and clear illustrations that made the Restatement (Second) such a success.  Any effort to reduce the number of illustrations should be avoided.  Moreover, the drafters should strive for the same economy of expression that was characteristic of the illustrations in the Restatement (Second) of Torts.  Some of the ALI’s recent Restatements have included illustrations that, viewed from the standpoint of usefulness, are too few in number and too complex in structure.  Ideally, a lawyer, law student, or judge should be able to look over the illustrations in a Restatement section and quickly determine if he or she is on the right track in terms of understanding the law.  The illustrations should not be so nuanced, qualified, or uncertain in result that the only proper reaction from the reader is a quizzical expression and a furrowed brow.

Second, when the sections dealing with the law of misrepresentation are revised, great care needs to be taken to clarify liability issues relating to indirectly disseminated false statements. This is the most difficult part of the law of fraud and negligent misrepresentation for a law professor to teach and for students to understand.  Case holdings, and the analyses offered in judicial opinions, also suggest that judges struggle with these principles.  In particular, the ALI needs to address important questions of liability related to false statements deliberately disseminated via mass media.  Some recent decisions have essentially reached the conclusion that it is permissible for financial and business institutions to intentionally mislead the public generally, so long as they are not aware of which particular investors will be defrauded.[7] These types of questionable decisions need to be scrutinized by the ALI.  On certain related points, such as liability for false statements contained in commercial documents[8] or public filings,[9] the Restatement (Second) of Torts charted an intelligent course.  However, some courts have rejected its teachings.[10] The Reporters charged with the task of revising the misrepresentation sections of theRestatement should muster the precedent and policy arguments that will ensure that the law of fraud holds purposeful disseminators of false statements accountable for the harm they cause.[11]

Third, in the field of defamation, there are several areas of the law that cry out for clarification: the distinctions between public and private figures,[12] and between matters of public concern and matters of private concern; the murky subject of qualified privilege; the issue of whether persons suing with respect to matters of private concern must prove that the defendant acted with negligence (or some other degree of fault) regarding the falsity of a defamatory statement; the extent to which the traditional rules on libel and slander per se remain viable; and application of the single-publication rule to defamatory websites and other Internet communications.[13]

Fourth, with respect to invasion of privacy, it is remarkable how well Dean William L. Prosser’s four privacy categories,[14] articulated in the mid-twentieth century, have held up in the new Digital Age, when many invasion of privacy claims are based on electronic activities (e.g., the use of social networking websites and smart phones) that only recently have become possible.  However, the privacy sections of the Restatement (Second) are haphazard in their treatment of issues relating to culpability.  For example, the provisions on liability for appropriation of name or likeness do not address culpability.[15] In contrast, the section on false-light invasion of privacy purports to require a degree of culpability that may no longer be consistent with current constitutional jurisprudence.[16] There are also unanswered questions about whether tort liability can be imposed, consistently with the First Amendment, for invasions of privacy based on truthful disclosure of facts.[17] And important issues must be addressed relating to what types of dissemination of information constitute the kind of publicity that will serve as the basis for invasion of privacy liability.[18]

Fifth, the Restatement (Second)’s treatment of tortious interference needs a top-to-bottom review.  Many courts have diverged from the path charted in this area by theRestatement (Second).  For example, a number of courts have rejected the second Restatement’s view that “burdening” contractual performance should be actionable.[19]Additionally, other courts[20] have articulated financial interest privileges broader than the one recognized in the Restatement (Second).[21] Current American law regarding tortious interference is very unclear about whether a defendant’s “improper motive” is (1) a basis for liability separate from the use of “improper means,” (2) a factor which tips the balance in the assessment of whether conduct is unprivileged, or (3) simply irrelevant to issues of liability.[22] The Restatement (Third) needs to grapple with and clarify the tangled mass of precedent that courts and lawyers now face in the field of tortious interference with contract and prospective advantage.

Sixth, the Restatement (Second)’s provisions relating to malicious prosecution and related actions have always seemed too complex.  They need to be revised to clarify these difficult causes of action and their relationship to recent developments, such as the increasing use of anti-SLAPP laws.[23]

Finally, the Restatement (Third) must chart a prudent course with respect to an issue that formed no significant part of the Restatement (Second), namely the recently recognized and much litigated “economic loss rule.”[24] Court decisions addressing this subject are being issued so frequently that it may qualify as the “hottest” topic in modern tort law.  As Chief Justice Shirley S. Abrahamson of the Wisconsin Supreme Court noted, at “the current pace, the economic loss doctrine may consume much of tort law if left unchecked.”[25]

IV. Tracing the Bounds of the Realm

As these few points suggest, the Restatement (Third) of Torts is still far from finished, and this task may not be concluded for many years.  Perhaps this is what makes American tort law such an interesting field.

The challenge of effectively restating the common law of torts has long been a great one.  However, the work facing the current generation of ALI scholars may be no more challenging than what was required in the past.  As a writer remarked almost a century ago about English contributions to Anglo-American law, it was at times “more difficult for jurists to state this branch of the law scientifically than for judges to make the law itself.  Writers on the law were like map-makers whose rulers conquer territory so rapidly that the bounds of their realms cannot be traced.”[26]

Perhaps not much has changed in the vast domain of tort law.


[1].   For example, until recently China had no tort system.  See Vincent R. Johnson, Standardized Tests, Erroneous Scores, and Tort Liability, 38 Rutgers L.J. 655, 672 (2007); Zhu Yan, The Legislative Background of Chinese Tort Law and Its Key Issues, in Haftungsrecht im dritten Millennium [Liability Law in the Third Millenium] 111, 112–13 (Aurelia Colombi Ciacchi et al. eds., 2009).  A new tort code recently came into force.  Zhong Hua Ren Min Gong He Guo Qin Quan Ze Ren Fa (中華人民共和國侵權責任法) [Tort Law of the People’s Republic of China] (promulgated by the Standing Comm. Nat’l People’s Cong., Dec. 26, 2009, effective July 1, 2010), http://www.lawinfochina.com/law/display
.asp?db=1&id=7846&keyword=tort%20law (China).  The new Chinese code is a brief document with ninety-two articles. A side-by-side Mandarin-English translation runs less than twenty pages, with plenty of white space.

[2].   See Ellen Pryor, Restatement (Third) of Torts: Coordination and Continuation, 44 Wake Forest L. Rev. 1383, 1385 (2009).

[3].   See Restatement (Third) of Torts: Liab. for Physical & Emotional Harm (2010); Restatement (Third) of Torts: Apportionment of Liab. (2000); Restatement (Third) of Torts: Prods. Liab. (1998).

[4].   See Pryor, supra note 2, at 1389.

[5].   Id.

[6].   See Ileto v. Glock, Inc., 349 F.3d 1191, 1214 (9th Cir. 2003) (holding that victims of a shooting perpetrated by a man who purchased a gun illegally stated claims for public nuisance and negligence against manufacturers, distributors, and dealers of the firearms that were actually fired); City of Cincinnati v. Beretta U.S.A. Corp., 768 N.E.2d 1136, 1142 (Ohio 2002) (holding that a city stated a public nuisance claim against handgun manufacturers, trade associations, and a handgun distributor).  But see State v. Lead Indus. Ass’n, 951 A.2d 428, 455–58 (R.I. 2008) (holding that a nuisance claim against lead-based paint manufacturers should have been dismissed).  A federal law enacted in 2005 now bars a wide range of civil liability actions against manufacturers, importers, dealers, and other sellers of firearms and ammunition, including claims based on nuisance.  See 15 U.S.C. §§ 7901–7903 (2006).  But see Ileto v. Glock, Inc., 565 F.3d 1126, 1146 (9th Cir. 2009) (allowing claims against an unlicensed foreign manufacturer of firearms to proceed), cert. denied, 130 S. Ct. 3320 (2010).

[7].   See, e.g., Newby v. Enron Corp. (In re Enron Corp. Sec., Derivative & “ERISA” Litig.), 490 F. Supp. 2d 784, 820–22 (S.D. Tex. 2007).  In Enron, the court declined to find that investors stated an action for fraud even though the main defendant, Merrill Lynch, had allegedly “cook[ed] its books” by devising fraudulent transactions to mislead investors and rating agencies, and had “issued through its analysts, even as Enron was descending into bankruptcy . . . ‘buy’ or ‘strong buy’ recommendations for Enron securities, which Merrill Lynch knew would be ‘widely disseminated in the financial news media.’”  Id. at 787.

[8].   See Restatement (Second) of Torts § 532 (1977).

[9].   Id. § 536.

[10].   See, e.g., Ernst & Young, L.L.P. v. Pac. Mut. Life Ins. Co., 51 S.W.3d 573, 582 (Tex. 2001) (declining to apply Restatement (Second) of Torts § 536).

[11].   See, e.g., Andrew R. Simank, Comment, Deliberately Defrauding Investors: The Scope of Liability, 42 St. Mary’s L.J. (forthcoming 2011).

[12].   See generally Joseph H. King, Jr., Deus ex Machina and the Unfulfilled Promise of New York Times v. Sullivan: Applying the Times for All Seasons, 95 Ky. L.J. 649, 671–94 (2007).

[13].   See Pendergrass v. ChoicePoint, Inc., No. 08–188, 2008 U.S. Dist. LEXIS 99767, at *15 (E.D. Pa. Oct. 9, 2008) (declining to apply the single-publication rule to limited dissemination of information).

[14].   See Catsouras v. Dep’t of Cal. Highway Patrol, 104 Cal. Rptr. 3d 352, 387 (Ct. App. 2010) (noting the influence of William L. Prosser, Privacy, 48 Calif. L. Rev. 383 (1960), and the similar analysis enshrined in Restatement (Second) of Torts §§ 652A–652E (1977)).

[15].   See Restatement (Second) of Torts § 652C (1977).

[16].   See West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 647 (Tenn. 2001) (rejecting the Restatement’s actual malice requirement “brought by private plaintiffs about matters of private concern”).

[17].   See Hall v. Post, 323 N.C. 259, 268–69, 372 S.E.2d 711, 716–17 (1988) (declining to recognize the private-facts tort because of its potential conflicts with the First Amendment); see also Doe v. Methodist Hosp., 690 N.E.2d 681, 693 (Ind. 1997) (refusing to recognize disclosure actions due to conflict with the “truth-in-defense” provisions of the Indiana Constitution).

[18].   See Yath v. Fairview Clinics, N.P., 767 N.W.2d 34, 42 (Minn. Ct. App. 2009) (differentiating two types of publicity).

[19].   See, e.g., Price v. Sorrell, 784 P.2d 614, 616 (Wyo. 1989) (rejecting Restatement (Second) of Torts § 766A (1979)).

[20].   See, e.g., RAN Corp. v. Hudesman, 823 P.2d 646, 649 (Alaska 1991) (recognizing a financial-interest privilege that protects more than investments).

[21].   See Restatement (Second) of Torts § 769 (1979).

[22].   See Vincent R. Johnson, Advanced Tort Law: A Problem Approach 425–28 (2010) (discussing the role of motive in the law of tortious interference).

[23].   See LoBiondo v. Schwartz, 970 A.2d 1007 (N.J. 2009). LoBiondo involved a claim alleging malicious use of process.  It arose from a SLAPP (Strategic Lawsuit Against Public Participation) defamation suit.  Under the law of many states, SLAPP actions are subject to early dismissal because of the protections afforded by the First Amendment to speech on public issues.  The New Jersey Supreme Court referred to the claim of malicious use of process as a “SLAPP-back suit.”

[24].   See generally Vincent R. Johnson, The Boundary-Line Function of the Economic Loss Rule, 66 Wash. & Lee L. Rev. 523, 524 n.1 (2009) (collecting examples of recent scholarship).

[25].   Grams v. Milk Prods., Inc., 699 N.W.2d 167, 181 (Wis. 2005) (Abrahamson, C.J., dissenting).

[26].   Percy H. Winfield, The Foundation of Liability in Tort, 27 Colum. L. Rev. 1, 5 (1927).

By: Benjamin C. Zipursky*

Zipursky_LawReview_December2009

∗ Professor & James H. Quinn ‘49 Chair in Legal Ethics, Fordham Law School; Visiting Professor, Harvard Law School (Spring 2009). John Goldberg has provided helpful comments on a previous draft and has been a collaborator on many of the central ideas here; I take full responsibility for whatever has gone wrong in this particular Article, however. I am grateful to Michael Green for his willingness over the past several years to engage me in person, over the telephone, and through correspondence on many of the central issues discussed in this Article. Because most of the communication on foreseeability was between Michael Green and myself, and because this Article was written to reflect some of that communication, I chose to write this individually.

By: M.H. Matthews*

Matthews_LawReview_December2009

* Fellow in Law, University College, Oxford; CUF Lecturer in Law, Oxford University. In writing this Article I have, with the kind permission of the Oxford University Press, drawn on the material that appears in chapter 3 of MARTIN MATTHEWS, JONATHAN MORGAN & COLM O’CINNEIDE, HEPPLE & MATTHEWS’ TORT: CASES AND MATERIALS (6th ed. 2008). I have also benefited from the comments of David Partlett and Mike Green, and additionally from views expressed at the Symposium. The usual exemption applies.

By: Ellen M. Bublick*

Bublick_LawReview_December2009

* Dan B. Dobbs Professor of Law, University of Arizona James E. Rogers College of Law. For helpful suggestions and feedback, many thanks to participants in the Symposium on the Third Restatement of Torts, particularly Dan Dobbs, Mike Green, Bill Powers, Ellen Pryor, Ken Simons, Aaron Twerski, and the editors of the Wake Forest Law Review.

By: John C.P. Goldberg*

Benjamin C. Zipursky**

GoldbergZipursky_LawReview_December2009

* Professor, Harvard Law School.
** Visiting Professor, Harvard Law School (Spring 2009); Professor & James H. Quinn Chair in Legal Ethics, Fordham University School of Law. Thanks to Mark Geistfeld, Stephen Perry, Tony Sebok, Robert Stevens, Ernest Weinrib, and members of the New York City Torts Group for helpful comments. Thanks also to the Symposium organizers for inviting us to reengage with the Restatement (Third). Although our writings on its physical-harm provisions have been critical—constructively so, we hope—we are pleased to have another opportunity to acknowledge the fine and important work of Reporters Mike Green, Gary Schwartz, and Bill Powers.