TORTS RESTATEMENT SECTIONS

Table of Contents

TORTS RESTATEMENT SECTIONS...........................................................................................1

INTENTION....................................................................................................................................2
BATTERY.......................................................................................................................................2
ASSAULT.......................................................................................................................................3
FALSE IMPRISONMENT..............................................................................................................3
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS.....................................................4
CONSENT.......................................................................................................................................5
RECKLESSNESS............................................................................................................................5
SELF-DEFENSE.............................................................................................................................5
DEFENSE OF PROPERTY: MECHANICAL DEVICES..............................................................6
NECESSITY....................................................................................................................................6
NEGLIGENCE................................................................................................................................6
CUSTOM.........................................................................................................................................9
STATUTES.....................................................................................................................................9
CONTRIBUTORY NEGLIGENCE..............................................................................................10
ASSUMPTION OF RISK..............................................................................................................11
CAUSATION................................................................................................................................12
PROXIMATE CAUSE..................................................................................................................13
DUTY............................................................................................................................................14
ATTRACTIVE NUISANCE.........................................................................................................15
SPECIAL RELATIONSHIPS.......................................................................................................15
STRICT LIABILITY.....................................................................................................................16
PRODUCTS LIABILITY..............................................................................................................18
 INTENTION

RST 2d § 8A: Intention

The term intention is used “to denote that the actor desires to cause consequences of his act, or
that he believes that the consequences are substantially certain to result from it.”

RST 3d § 1: Liability for Physical Harms

A person acts with the intent to produce a consequence if:
(a) The person acts with the purpose of producing that consequence of
(b) The person acts knowing that the consequence is substantially certain to result

RST 2d § 16: Character of Intent Necessary

(I) If an act is done with the intention of inflicting upon another an offensive, but not a
harmful bodily contact, or putting another in apprehension of either a harmful or offensive
bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other
for a battery although the act was not done with the intention of bringing about the bodily
harm

RST § 435B: Unintended Consequences

Where a person has intentionally invaded the legally protected interests of another, his intention
to commit an invasion, the degree of his moral wrong in acting, and the seriousness of the harm
which he intended are important factors in determining whether he is liable for resulting
unintended harm.

RST 2d § 158: Liability for Intentional Intrusion on Land

One is subject to liability for another for trespass, irrespective of whether he thereby causes harm
to any legally protected interest of the other, if he intentionally
(a) enters land in the possession of the other, or causes a thing or a third possession to do
so

BATTERY

Restatement 2d §13. Battery: Harmful Contact / § 18: Battery: Offensive Contact

An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the
other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful/offensive contact with the person of the other directly or indirectly
results.

RST 2d § 19: Offensive Contact

A bodily contact is offensive if it offends a reasonable sense of personal dignity.
- In order that a contact be offensive to a reasonable sense of personal dignity, it must be
one which would offend the ordinary person and as such one not unduly sensitive to his
personal dignity.
- It must, therefore, be a contact which is unwarranted by the social usages prevalent at the
time and place at which it is inflicted.

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 ASSAULT

RST 2d § 21: Assault

An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person the other or a
third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.

RST 2d § 24, Comment B

- It is not necessary that the other believe that the act done by the actor will be effective in
inflicting the intended contact upon him.
- It is enough that he believes that the act is capable of immediately inflicting the contact
upon him unless something further occurs.
- The apprehension which is sufficient to make the actor liable may have no relation to
fear, which at least implies a doubt as to whether the actor’s attempt is capable of certain
frustration.

RST 2d § 31: Words Alone as Assault

Words do not make the actor liable for assault unless together with other acts or circumstances
they put the other in reasonable apprehension of an imminent harmful or offensive contact with
his person

FALSE IMPRISONMENT

RST 2d § 35: False Imprisonment

An actor is subject to liability to another for false imprisonment if
(a) he acts intending to confine the other or a third person within boundaries fixed by the
actor and
(b) his act directly or indirectly results in such a confinement of the other, and
(c) the other is conscious of the confinement or is harmed by it.

RST 2d. § 36: What Constitutes Confinement

(1) To make the actor liable for false imprisonment, the other’s confinement within the
boundaries fixed by the actor must be complete.
(2) The confinement is complete although there is reasonable means of escape, unless the
other knows of it.
(3) The actor does not become liable for false imprisonment by intentionally preventing
another going in a particular direction in which he has a right or privilege to go.

RST 2d § 36 Note B:
The area within which another is completely confined may be large and need not be stationary.
Whether the area from which the actor prevents the other from going is so large that it ceases to
be a confinement within the area and becomes an exclusion from some other area may depend
upon the circumstances of the case...

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RST 2d § 106: Recapturing Chattel
- Means must “not be in excess of those which the actor correctly or reasonably believes
are necessary to effect” the recapture.
- Use of force must not be “intended or likely to cause death or serious bodily harm.”

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

RST 2d § 46: Outrageous conduct causing severe emotional distress

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe
emotional distress to another is subject to liability for such emotional distress, and if
bodily harm to the other results from it, for such bodily harm.
(2) Where such conduct is directed at a third person, the actor is subject to liability if he
intentionally or recklessly causes severe emotional distress
(a) To a member of such person’s immediate family who is present at the time,
whether or not such distress results in bodily harm, or
(b) To any other person who is present at the time, if such distress results in bodily
harm
RST 2d § 46 Comment (d):
The liability clearly does not extend to mere insults, indignities, annoyances, petty oppressions,
or other trivialities. The rough edges of our society are still in need of a good deal of filing down,
and in the meantime, plaintiffs must necessary be expected and required to be hardened to a
certain amount of rough language and occasional acts that are definitely inconsiderate and
unkind.

RST 2d § 436A
If the actor’s conduct is negligent in creating an unreasonable risk of causing either bodily harm
or emotional disturbance to another, and it results in such emotional disturbance alone, without
bodily harm or other compensable damage, the actor is not liable for such emotional disturbance.

RST 3d § 47: Negligent Conduct Directly Inflicting Emotional Harm on Another

An actor whose negligent conduct causes serious emotional harm to another is subject to liability
to the other if the conduct:
(a) places the other in danger of immediate bodily harm and the emotional harm results from
the danger; or
(b) occurs in the course of specified categories of activities, undertakings, or relationships in
which negligent conduct is especially likely to cause serious emotional harm
Comment e: exposure to a toxic substance with a long latency period, “along with subclinical
effects that do not rise to the level of bodily harm, do not satisfy the zone-of-danger
requirement”
Comment j: Physical consequences not required: “the rule stated in this Section, while requiring
serious emotional harm, is not limited to cases in which there are physical manifestations. The
requirements that the harm be serious, that the circumstances of the case be such that a
reasonable person would suffer serious harm, and that there be credible evidence that the
plaintiff has suffered such harm better serve the purpose of screening claims than a requirement
of physical consequences.

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 CONSENT

RST 2d § 892: Consent

Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction
and need not be communicated to the actor.
(A) One who effectively consents to conduct another intended to invade his interests
cannot recover in an action of tort of the conduct or for harm resulting from it.

RECKLESSNESS

RST 3d § 2: Recklessness
A person acts recklessly in engaging in conduct if:
(a) the person knows of risk of harm created by the conduct or knows facts that make the
risk obvious to another in the person’s situation, and
(b) the precaution that would eliminate or reduce the risk involved burdens that are so slight
relative to the magnitude of the risk as to render the person’s failure to adopt the
precaution a demonstration of the person’s indifference to the risk.

SELF-DEFENSE

RST 2d § 63: Self-Defense By Force Not Threatening Death Or Serious Bodily Harm
(I) An actor is privileged to use reasonable force, not intended or likely to cause death or
serious bodily harm, to defend himself against unprivileged harmful or offensive contact or
other bodily harm which he reasonably believes that another is about to inflict intentionally
upon him.

RST 2d § 65: Self-Defense by Force Threatening Death or Serious Bodily Harm

(1) ... An actor is privileged to defend himself against another by force intended or likely
to cause death or serious bodily harm, when he reasonably believes that
(a) the other is about to inflict upon him an intentional contact or other bodily
harm, and that
(b) he is thereby put in peril of death or serious bodily harm or ravishment, which
can safely be prevented only by the immediate use of such force.
(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably
believes that he can safely avoid the necessity of so defending himself by
(a) retreating if he is attacked within his dwelling place... or
(b) permitting the other to intrude upon or dispossess him of his dwelling place, or
abandoning an attempt to affect a lawful arrest
(3) The privilege stated in Subsection (1) does not exist if the actor correctly or
reasonably believes that he can with complete safety avoid the necessity of so defending
himself by
(a) retreating if attacked in any place other than his dwelling place, or in a place
which is also the dwelling of the other, or

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 (b) relinquishing the exercise of any right or privilege other than his privilege to
prevent intrusion upon or dispossession of his dwelling place or to effect a lawful
arrest.

DEFENSE OF PROPERTY: MECHANICAL DEVICES

RST 2d § 85: Use of Mechanical Device Threatening Death Or Serious Bodily Harm
The actor is so far privileged to use a device intended or likely to cause serious bodily harm or
death for the purpose of protecting his land ... that he is not liable for the serious bodily harm or
death thereby caused to an intruder whose intrusion is, in fact, such that the actor, were he
present, would be privileged to prevent or terminate it by the intentional infliction of such
harm.

NECESSITY

RST 2d § 197: Private Necessity

(1) One is privileged to enter or remain on land in the possession of another if it is or
reasonably appears to be necessary to prevent serious harm to (a) the actor, or his land
or chattels
(2) Where the entry is for the benefit of the actor or a third person, he is subject to liability
for any harm done in the exercise of the privilege stated in Subsection (1) to any legally
protected interest of the possessor of the land or connected to it, except where the threat
of the harm to avert which the entry is made is caused by the tortious conduct or
contributory negligence of the possessor.
Comment C: In determining the question of reasonableness, the probable advantage to the
actor to be expected from the entry must be weighed against the probable detriment to
the possessor of the land or other persons properly upon it.

RST 2d § 262: Public Necessity

One is privileged to commit an act which would otherwise be a trespass to chattel or a
conversion if the act is or is reasonably believed to be necessary for the purpose of avoiding a
public disaster.

NEGLIGENCE

RST 2d § 282: Negligence

Negligence is conduct which falls below the standard established by law for the protection of
others against unreasonable risk of harm. It does not include conduct recklessly disregardful of
an interest of others.
Special Note: The word “negligent” is often used to include all conduct which, although not
intended to invade any legally protected interest, has the element of social fault.

RST 3d § 3: Negligence
A person acts negligently if the person does not exercise reasonable care under the
circumstances.

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 - Primary factors to consider:
o Foreseeable likelihood that the person’s conduct will result in harm
o Foreseeable severity of any harm that may ensue
o Burden of precautions to eliminate or reduce the risk of harm

RST 2d § 283: Conduct of a Reasonable Man: The Standard

Unless the actor is a child, the standard of conduct to which he must conform to avoid being
negligent is that of a reasonable man under like circumstances.
- Negligence is a departure from a standard of conduct demanded by the community for the
protection of others against unreasonable risk. The standard must be an objective and
external one, rather than that of the individual judgment, good or bad, of the particular
individual. It must be the same for all persons, since the law can have no favorites; and
yet allowance must be made for some of the differences between individuals, the risk
apparent to the actor, his capacity to meet it, and the circumstances under which he must
act.
- The reasonable man is a fictitious person, who is never negligent, and whose conduct is
always up to standard. He is not to be identified with any real person; and in particular he
is not to be identified with the members of the jury, individually or collectively. It is
therefore error to instruct the jury that the conduct of the reasonable man is to be
determined by what they would themselves have done.

RST 2d §283A: Children

If the actor is a child, the standard of conduct to which he must conform to avoid being negligent
is that of a reasonable person of like age, intelligence, and experience under like
circumstances.

§283A Comment b: The special standard to be applied in the case of children arises out of the
public interest in their welfare and protection together with the fact that there is a wide basis
of community experience upon which it is possible, as a practical matter, to determine what is
to be expected of them.
RST 3d § 10: Children Engaging in Adult Activities
(c) The special rule [for taking into account a child’s age, intelligence, and experience when
determining breach] does not apply when the child is engaging in dangerous activity
that is characteristically undertaken by adults.

RST 3d § 11: Disabilities

(a) The conduct of an actor with a physical disability is negligent only if the conduct does
not conform to that of a reasonably careful person with that same physical disability.
§ 11 Comment c: Old Age
- Old age, as such, is not taken into account in assessing the negligence of an actor’s
conduct. In many individual cases, however old age is affiliated with particular physical
disabilities. Under subsection (a), those physical disabilities are taken into account.
- Thus, an 80-year-old actor who is no longer able to run will not be found negligent in
failing to run as a hazard approaches. On the other hand, such an actor may be found

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 negligent for engaging in an activity where running away from dangers is an important
precaution.

RST 3d § 12: Knowledge and Skills

If an actor has skills or knowledge that exceed those possessed by most others, those skills or
knowledge are circumstances to be taken into account in determining whether the actor has
behaved as a reasonably careful person.

§ 12 Comment a:
- If there is a dangerous activity, the P “may well have relied on” a representation by D
of a “particular set of knowledge or skills “when entering into a relationship.”
- “Moreover, insofar as the relationship is an economic one, the P is presumably paying for
the extra knowledge and skill that the D brings to the relationship.”
- “On balance, it is best to take person’s actual knowledge and skills into account when the
level of their knowledge or skills exceeds the average.” (if there is no dangerous activity
or preexisting relationship based on knowledge and skills of D)
- “Tort law has always inquired into whether the actor ‘knew or should have known so
long as the actor has actual knowledge, the source of that knowledge has not been
deemed material.”
- “Moreover, given that all actual knowledge is taken into account, it is appropriate to take
all actual skills into account as well.”
- “In fact, knowledge and skills cannot be easily be distinguished; what the professional
driver and skier has is a combination of the two.”
- At the same time, “even though the actor’s skills can probably be considered, these skills
do not establish for the actor a standard of care higher than reasonable care; rather,
they provide a circumstance for the jury to consider in determining whether the actor has
complied with the general standard of reasonable care.

§ 12 Comment b:
The fact that a person is below average in judgment, knowledge, or skills is generally ignored in
considering whether a person is negligent.

RST 3d § 11: Disability

(b) The conduct of an actor during a period of sudden incapacitiation or loss of
consciousness resulting from physical illness is negligent only if the sudden
incapacitation or loss of consciousness was reasonably foreseeable to the actor.
(c) An actor’s mental or emotional disability is not considered in determining whether
conduct is negligent, unless the actor is a child.

§ 11 Comment e
- For adults, ... [mental disability] is typically disregarded in considering whether a person
has exercised reasonable care ... It can be difficult to ascertain what the causal connection
is between even a serious mental disorder and conduct that appears to be unreasonable.
- [Even for deinstitutionalized persons,] there is nothing especially harsh in at least holding
such a person responsible for those harms that the person’s clearly substandard conduct
causes.

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 - Note, however, actor is also liable for sudden onset of mental or emotional disability.
- Subsection (c) is applicable even when the actor’s mental illness produces the type of
sudden incapacitation that is otherwise covered by subsection (b).
- Subsection (b) assumes that incidents of incapacitation can frequently occur without
adequate forewarning to the individual; yet the actor who is vulnerable to incapacitating
delusions is commonly aware of this vulnerability.
- The actor who is subject to psychotic episodes may well be one who is lacking in
adequate rationality during other periods.

CUSTOM
RST 2d § 295A: Custom
In determining whether conduct is negligent, the customs of the community, or of others under
like circumstances, are factors to be taken into account, but are not controlling where a
reasonable man would not follow them.

RST 3d § 13(a)-(b)
(a) Custom of community is evidence that the actor’s conduct is not negligence, but does not
preclude a finding of negligence
(b) A departure from custom in a way that increases risk is evidence of the actor’s negligence
but does not require a finding of negligence

RST 2d § 299A: Undertaking In Profession Or Trade

Unless he represents that he has greater or less skill or knowledge, one who undertakes to render
services in the practice of a profession or trade is required to exercise the skill and knowledge
normally possessed by members of that profession or trade in good standing in similar
communities.

STATUTES

RST 3d § 14: Statutory violations as negligence per se

An actor is negligent if, without excuse, the actor violates a statute that is designed to protect
aginst the type of accident the actor’s conduct causes, and if the accident victim is within the
class of persons the statute is designed to protect.

RST 3d § 14 Comment h:
For a number of activities capable of causing physical or emotional harm, the government
requires the license of those engaged in the activity. One general purpose of such licensing
programs is to protect the public against physical and emotional harm. But in many cases, the
immediate reason for the person’s lack of a license is unrelated to the state’s general safety
purpose..
- [A] physician may lack a license in a state only because the physician has not yet
satisfied the state’s residency requirement. In those circumstances, the lack of a license
does not bear on the physician’s possible malpractice in terms of services delivered.
- Property owner has installed a furnace without securing a permit required by a city
ordinance. Evidence indicates that the inspector would not have issued the permit

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 because the furnace’s capacity for emitting dangerous gases. In this case, the person who
suffers physical harm on account of such emissions can show that the owner’s violation
of the permit-requiring ordinance is negligence per se. The absence of a license in such
a case is a proxy for the owner’s violation of the city’s substantive safety standards
that are enforced through the licensing process.

RST 2d § 288A: Excused Violations

(1) An excused violation of a statute is not negligence.
(2) Unless the statute is construed not to permit such excuse, its violation is excused when
(a) the violation is reasonable because of the actor’s incapacity;
(b) he neither knows nor should know of the occasion for compliance;
(c) he is unable after reasonable diligence or care to comply;
(d) he is confronted by an emergency not due to his own misconduct;
(e) compliance would involve a greater risk of harm to the actor or to others.

RST 2d § 328D: Res Ipsa Loquitur

(1) It may be inferred that harm suffered by the P is caused by negligence of the D when:
(a) The event is of the kind which ordinarily does not occur in the absence of
negligence;
(b) other responsible causes, including the conduct of P and third parties, are
sufficiently eliminated by the evidence; and
(c) the indicated negligence is within the scope of the D’s duty to the P
(2) It is the function of the court to determine whether the inference may be reasonably
drawn by the jury, or whether it must be necessarily drawn.
(3) It is the function of the jury to determine whether the inference is to be drawn in any case
where different conclusions may be reasonably reached.

CONTRIBUTORY NEGLIGENCE

RST 2d § 465: Causal Relation between Harm and P’s Negligence

(1) The P’s negligence is a legally contributing cause of his harm if, but only if, it is a
substantial factor in bringing about his harm and there is no rule restricting his
responsibility for it.
(2) The rules which determine the causal relation between the P’s negligent conduct and the
harm resulting to him are the same as those determining the causal conduct between the
D’s negligent conduct and resulting harm to others.

RST 2d § 462: Negligent Conduct as a Necessary Antecedent to Harm

(1) Except as stated in Subsection (2), the actor’s negligent conduct is not a substantial
factor in bringing about harm to another if the harm would have been sustained even if
the actor had not been negligent.
(2) If two forces are actively operating, one because of the actor’s negligence, the other not
because of any misconduct on his part, and each of itself is sufficient to bring about harm
to another, the actor’s negligence may be found to be a substantial factor in bringing it
about.

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Last Clear Chance
RST 2d § 479: Last Clear Chance: Helpless Plaintiff
A plaintiff who hs negligently subjected himself to a risk of harm from the defendant’s
subsequent negligence may recover for harm caused thereby if, immediately preceding the harm,
(a) the plaintiff is unable to avoid it by the exercise of reasonable vigilance and care, and
(b) the defendant is negligent in failing to utilize with reasonable care and competence his
then existing opportunity to avoid the harm, when he
(i) knows of the plaintiff’s situation and realizes or has reason to realize the
peril involved in it or
(ii) would discover the situation and thus have reason to realize the peril, if he
were to exercise the vigilance which it is then his duty to the plaintiff to
exercise

RST § 480: Last Clear Chance: Inattentive Plaintiff

A plaintiff who, by the exercise of reasonable vigilance, could discover the danger created by the
defendant’s negligence in time to avoid the harm to him, can recover if, but only if, the defendant
(a) knows of the plaintiff’s situation, and
(b) realizes or has reason to realize that the plaintiff is inattentive and therefore unlikely to
discover his peril in time to avoid the harm, and
(c) thereafter is negligent in failing to utilize with reasonable care and competence his then
existing opportunity to avoid harm

ASSUMPTION OF RISK

RST § 496B: Express Assumption of Risk

A plaintiff who by contract or otherwise expressly agrees to accept a risk of harm arising from
the defendant’s negligent or reckless conduct cannot recover for such harm, unless the
agreement is invalid as contrary to public policy.
Comment E: There are certain situations and relations in which the courts refuse to give effect
to express agreements by which the plaintiff assumes the risk. Comments f to j [covering the
Tunkle factors, more or less] ... deal with some of these situations ... [But] [t]he list is not an
exclusive one, and there may be other situations and relations in which the policy of the law may
lead to such a result.

RST § 496C: Implied Assumption of Risk

... [A] plaintiff who fully understands a risk of harm to himself ... caused by the defendant’s
conduct or by the condition of the defendant’s land or chattels, and who nevertheless voluntarily
chooses to enter or remain ... within the area of that risk, under circumstances that manifest
his willingness to accept it, is not entitled to recover for harm within that risk.

RST 2d § 496D: Knowledge and Appreciation of Risk

Except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the
defendant’s conduct unless he then knows of the existence of the risk and appreciates its
unreasonable character.

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Comment C: The standard to be applied is a subjective one, of what the particular plaintiff in
fact sees, knows, understands, and appreciates.
Comment d: [But] the plaintiff’s own testimony as to what he knew, understood, or
appreciated, is not necessarily conclusive. There are some risks as to which no adult will be
believed if he says that he did not know or understand them.

CAUSATION

RST 2d § 26: Factual Cause

Conduct is a factual cause of harm when the harm would not have occurred absent the conduct.
(The conduct is a “but for” cause.)
Comment E: The requirement that the actor’s tortious conduct be necessary for the harm to
occur requires a counterfactual inquiry. One must ask what would have occurred if the actor
had not engaged in the tortious conduct.

RST 2d § 431: Proximate (Legal) Cause

The actor’s negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which
his negligence has resulted in the harm

RST 3d § 27: Multiple Sufficient Causes

If multiple acts occur, each of which under § 26 alone would have been a factual cause of the
physical harm at the same time in the absence of the other act(s), each act is regarded as a
factual cause of the harm.

RST 2d § 433B(3): Alternative Causation

Where the conduct of two or more actors is tortious, and it is proved that harm has been caused
to the plaintiff by only one of them, but there is uncertainty as to which one has caused it, the
burden is upon each such actor to prove that he has not caused the harm.
Comment d:
This section applies in a case of multiple sufficient causes, regardless of whether the
competing cause involves tortious conduct or consists only of innocent conduct ... Conduct is
a factual cause of harm regardless of whether it is tortious or innocent and regardless of any
other cause with which it concurs to produce overdetermined harm.
When one of multiple sufficient causes is not tortious, the question of damages is a different
matter from the causal question. [That question] properly belongs to the law of damages and is
not addressed in this Restatement.

PROXIMATE CAUSE

RST 2d § 431: What Constitutes Legal Cause

The actor’s negligent conduct is a legal cause of harm to another if
(a) his conduct is a substantial factor in bringing about the harm, and
(b) there is no rule of law relieving the actor from liability because of the manner in which
his negligence has resulted in the harm

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Comment A: In order to be a legal cause of another’s harm, it is not enough that the harm
would not have occurred had the actor not been negligent ... The negligence must also be a
substantial factor in bringing about the plaintiff’s harm.
The word “substantial” is used to denote the fact that the defendant’s conduct has such an effect
in producing the harm as to lead reasonable men to regard it as a cause, using that word in
the popular sense, in which there always lurks the idea of responsibility, rather than in the
so-called “philosophic sense,” which includes every one of the great number of events without
which any happening would not have occurred.

RST 2d § 443: Normal Intervening Force

The intervention of a force which is a normal consequence of a situation created by the actor’s
negligent conduct is not a superseding cause of harm which such conduct has been a substantial
factor in bringing about.
Comment b: “normal” here does not mean usual, customary, or foreseeable, but rather “the
antithesis of abnormal.”
Illustration: A negligently drives her car into B’s car. B is cut by flying glass. Bacteria from the
air enter the open wound and infect it, seriously increasing the harm to B. A is subject to liability
to B for the damages resulting from the infection.

RST 3d § 30: Risk of Harm Not Generally Increased by Tortious Conduct

An actor is not liable for harm when the tortious aspect of the actor’s conduct was of a type that
does not generally increase the risk of that harm.
Comment a: In these situations, “greater care by the actor would not reduce the frequency of
such accidents. [T]he wrongful aspect of the actor’s conduct is merely serendipitous or
coincidental in causing the harm.

RST 2d § 448: Act of a Third Person (?)

The act of a third person in committing an intentional tort or crime is a superseding cause of
harm to another resulting therefrom, although the actor’s negligent conduct created a situation
which afforded an opportunity to the third person to commit such a tort or crime, unless the
actor at the time of his negligent conduct realized or should have realized the likelihood
that such a situation might have been created, and that a third person might avail himself
of the opportunity to create such a tort or crime.

RST 2d § 449
If the likelihood that a third person might act in a particular manner is the hazard or one of the
hazards which makes the actor negligent, such an act whether innocent, negligent,
intentionally tortious, or criminal does not prevent the actor from being liable for harm caused
thereby.

RST 2d § 281, Comment C: Unforeseeable Plaintiffs

In order for the actor to be negligent with respect to the other, his conduct must create a
recognizable risk of harm to the other individually, or to a class of persons—as, for example, all
persons within a given area of danger—of which the other is a member

Dobbs Torts Treatise

13
The great majority of cases hold negligent defendants liable only for harm of the same general
kind that they should have reasonably foreseen and should have acted to avoid.
The same principle holds defendants liable only to plaintiffs who are in the same general class
of people who were at risk from his negligence.

RST 3d § 7
(a) An actor ordinarily has a duty to exercise reasonable care when the actor’s conduct
creates a risk of physical harm.
(b) In exceptional cases, when an articulated countervailing principle or policy warrants
denying or limiting liability in a particular class of cases, a court may decide that a
defendant has no duty or that the ordinary duty of reasonable care requires modification

RST 3d § 29
An actor’s liability is limited to those harms that result from the risks that made the actor’s
conduct tortious.

DUTY

RST 2d § 314: Duty to Act for Protection of Others

The fact that the actor realizes or should realize that action on his part is necessary for another’s
aid or protection does not of itself impose upon him a duty to take such action.
(c) The rule stated in this Section is applicable irrespective of the gravity of the danger to
which the other is subjected and the insignificance of the trouble, effort, or expense of
giving him aid or protection.
(d) The rule stated in this Section applies only where the peril in which the actors know that
the other is placed is not due to any active force which is under the actor’s control. If a
force is within the actor’s control, his failure to control it is treated as though he were
actively directing it and not as a breach of duty to take affirmative steps to prevent its
continuance.
(e) Since the actor is under no duty to aid or to protect another who has fallen into peril
through no conduct of the actor, it is immaterial that his failure to do so is due to a desire
that the other shall be harmed.
RST 3d § 37: No Duty of Care with Respect to Risks Not Created by Actor
An actor whose conduct has not created a risk of physical or emotional harm to another has no
duty of care to the other unless a court determines that one of the affirmative duties provided in
§§ 38-44 is applicable.

RST 3d § 39
When an actor’s prior conduct, even though not tortious, creates a continuing risk of physical
harm of a type characteristic of the conduct, the actor has a duty to exercise reasonable care to
prevent or minimize the harm.

RST 2d § 324: Duty of One Who Takes Charge of Another Who is Helpless

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One who, being under no duty to do so, takes charge of another who is helpless adequately to aid
or protect himself is subject to liability to the other for any bodily harm caused him by
(a) the failure of the actor to exercise reasonable care to secure the safety of the other while
within the actor’s charge, or
(b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a
worse position than when the actor took charge of him.

ATTRACTIVE NUISANCE

RST 2d § 339: Artificial Conditions Highly Dangerous to Trespassing Children

(a) the place where the condition exists is one upon which the possessor knows or has reason
to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he
realizes or should realize will involve an unreasonable risk of death or serious bodily
harm to such children, and
(c) the children because of their youth do not discover the condition or realize the risk
involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the
danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to
protect the children.

SPECIAL RELATIONSHIPS

RST 2d § 315: General Principle of Special Relationships

No duty to control the conduct of a third person as to prevent him from causing physical harm
to another unless
(a) a special relationship exists between the actor and the third person which imposes a duty
upon the actor to control 3d person’s conduct, or
(b) a special relationship exists between actor and the other which gives the other a right to
protection

RST 2d § 314A: Special Relations Giving Rise to Duty to Aid or Protect

(1) A common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm, and
(b) to give them first aid . . .; to care for them until they can be cared for by others.
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members
of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another
under circumstances such as to deprive the other of his normal opportunities for
protection is under a similar duty to the other.
*Caveat: the Institute expresses no opinion as to whether other relations may impose a
similar duty.
Comment d: The duty to protect the other against unreasonable risk of harm extends to risks
arising out of the actor’s own conduct, or the condition of his land or chattels. It extends also to

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risks arising from . . . the acts of third persons, whether they be innocent, negligent, intentional,
or even criminal . . .
Comment e: The duty in each case is only to exercise reasonable care under the
circumstances.

RST 3d § 41: Duty to Third Persons Based on Special Relationship with Person Posing
Risks
(a) An actor in a special relationship with another owes a duty of reasonable care to third
person with regard to risks posed by the other that arise within the scope of the
relationship.
(b) Special relationships giving rise to the duty provided in Subsection (a) include:
(1) a parent with dependent children;
(2) a custodian with those in custody;
(3) an employer with employees when the employment facilitates the employee’s
causing harm to third parties; and
(4) a mental-health profession with patients.

STRICT LIABILITY

RST 3d § 22: Wild Animals

(a) An owner or possessor of a wild animal is subject to strict liability for physical harm
caused by the wild animal.
(b) A wild animal is an animal that belongs to a category of animals that have not been
generally domesticated and that are likely, unless restrained, to cause personal injury.

RST 3d § 23: Harm Caused by Non-Wild Animals—Abnormally Dangerous Animals

An owner or possessor of an animal that the owner or possessor knows or has reason to know has
dangerous tendencies abnormal for the animal’s category is subject to strict liability for physical
harm caused by the animal if the harm ensues from that dangerous tendency
Comment I: Negligence Liability. Many animals, while lacking the element of abnormal
danger that justifies strict liability, still involve some level of risk . . . In light of that risk, the
animal owner can potentially be held liable under the negligence standard for physical or
emotional harms . . .

RST 2d § 515: Plaintiff’s Conduct (on Liability of Possessors & Harborers of Animals)
(1) Except as stated in (2), P’s contributory negligence is not a defense to the strict liability
of the possessor of an animal.
(2) P’s contributory negligence in knowingly and unreasonably subjecting himself to the
risk that a wild animal or an abnormal dangerous domestic animal will do harm to his
person, land or chattels, is a defense to the strict liability.
(3) The plaintiff’s assumption of the risk of harm from the animal is a defense to the strict
liability.

RST 2d § 519: Abnormally Dangerous Activities: General Principle

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 (1) One who carries on an abnormally dangerous activity is subject to liability for harm to
the person, land or chattels of another resulting from the activity, although he has
exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the
activity abnormally dangerous.

RST 2d § 520: Abnormally Dangerous Activities: Factors

(a) High degree of risk of some harm
(b) Likelihood that harm that results will be great
(c) Inability to eliminate risk by exercise of reasonable care*
(d) Extent to which activity is not a matter of common usage*
(e) Inappropriateness to place
(f) Extent to which value to community is outweighed by dangerous attributes**
*Most influential factors
**Least influential factor

RST 3d § 20: Abnormally Dangerous Activities

(a) An actor who carries on an abnormally dangerous activity is subject to strict liability for
physical harm resulting from the activity
(b) An activity is normally dangerous if:
(1) the activity creates a foreseeable and highly significant risk of physical harm
even when reasonable care is exercised by all actors; and
(2) the activity is not one of common usage

RST 2d § 522: Contributing Actions of Third Persons, Animals, and Forces of Nature
One carrying on an abnormally dangerous activity is subject to strict liability for the resulting
harm, although it is caused by the unexpectable
(a) innocent, negligent, or reckless conduct of a third person, or
(b) action of an animal, or
(c) operation of a force of nature.

RST 2d § 523: Assumption of Risk

The plaintiff’s assumption of the risk of harm from an abnormally dangerous activity bars his
recovery for the harm.

RST 2d § 524: Contributory Negligence

(1) Except as stated in Subsection (2), the contributory negligence of the plaintiff is not a
defense to the strict liability of one who carries on an abnormally dangerous activity.
(2) The plaintiff’s contributory negligence in knowingly and unreasonably subjecting himself
to the risk of the harm from the activity is a defense to the strict liability.

PRODUCTS LIABILITY

RST 2d § 402A: Defective Condition

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(1) One who sells any product in a defective condition unreasonably dangerous to the user or
consumer or to his property is subject to liability for physical harm thereby caused to the
ultimate user or consumer or to his property, if
(a) the seller is engaged in the business of selling such a product, and
(b) it is expected to and does reach the user or consumer without substantial change in
the condition in which it is sold.
(2) The rule stated in Subsection (1) applies although
(a) the seller has exercised all possible care in the preparation and sale of his product,
and
(b) the user or consumer has not bought the product from or entered into any
contractual relation with the seller.
Comment f: It . . . applies to any manufacturer of such a product, to any wholesaler or retail
detailer or distributor, and to the operator of a restaurant.
Comment h: A product is not in a defective condition when it is safe for normal handling and
consumption. If the injury results from abnormal handling, as where a bottled beverage is
knocked against a radiator to remove the cap, or from abnormal preparation for use, as where too
much salt is added to food, or from abnormal consumption, as where a child eats too much candy
and is made ill, the seller is not liable.
Comment i: The rule stated in this Section applies only where the defective condition makes it
unreasonably dangerous to the user or consumer. Many products cannot possibly be made
entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if
only from over-consumption.

What’s considered a defect under RST 2d?

The article sold must be dangerous to an extent beyond that which would be contemplated
by the ordinary consumer who purchases it, with the ordinary knowledge common to the
community as to its characteristics.

RST 3d § 1: Products Liability

One engaged in the business of selling or otherwise distributing products who sells or
distributes a defective product is subject to liability for harm to persons or property caused by
the defect.

RST 3d § 2: Products Liability

A product is defective when, at the time of sale or distribution, it contains a manufacturing
defect, is defective in design, or is defective because of inadequate instructions or warning.

A product (a) contains a manufacturing defect when the product departs from its intended
design, even though all possible care was exercised in the preparation and marketing of the
product.

A product (b) is defective in design when the foreseeable risks could have been reduced or
avoided by the adoption of a reasonable alternative design . . . and the omission of the
alternative design render the product not reasonably safe.

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A product (c) is defective because of inadequate instructions or warnings when the
foreseeable risk of harm could have been reduced or avoided by the provision of reasonable
instructions or warnings . . . and the omission of the instructions or warning renders the
product not reasonably safe.

Comment c: A manufacturing defect is a departure from a product unit’s design

specifications. More distinctly than any other type of defect, manufacturing defects disappoint
consumer expectations. Common examples of manufacturing defects are products that are
physically flawed, damaged, or incorrectly assembled.

Comment d: the test is whether a reasonable alternative design would, at reasonable cost,
have reduced the foreseeable risks of harm posed by the product and, if so, whether the
omission of the alternative design by the seller . . . rendered the product not reasonably
safe.

RST 3d § 3: Products Liability: Circumstantial Evidence

It may be inferred that P’s harm was caused by a product defect . . . without proof of specific
defect, when the incident that harmed P:
(a) was of a kind that ordinarily occurs as a result of defect, and
(b) was not solely the result of causes other than defect

RST 3d § ??: Liability for inadequate instructions or warnings

Comment i: Commercial product sellers must provide reasonable instructions and warnings
about risks of injury pose by products. Instructions inform persons how to use and consume
products safely. Warnings alert users and consumers to the existence and nature of product risks
so they can prevent harm either by appropriate conduct during use or consumption or by
choosing not to use or consume.

RST 3d § 21: Did product just harm itself?

Comment e: A defective product that causes harm to property other than the defective property
itself is governed by the rules of this Restatement. What constitutes harm to other property rather
than harm to product itself may be difficult to determine.
A product that fails to function and causes harm to surrounding property has clearly caused harm
to other property.
However, when a component part of a machine of a system destroys the rest of a machine or
system, the characterization process becomes more difficult.
When product is considered an “integrated whole,” damage is to product itself.
Asbestos deemed harm to building “as other property.”

RST 3d § 16: Increased Harm Due to Product Defect

(c) If proof supports a determination fo the harm that would have resulted from other
causes in the absence of the product defect, D’s liability is limited to the increased harm
attributable solely to the product defect.
(d) If proof does not support a determination under Subsection (b) of the harm that
would have resulted in the absence of the product defect, the product seller is liable for
all of P’s harm attributable to the defect and other cases.

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RST 3d § 4: Product Liability: Noncompliance and Compliance with Product Safety
Statutes or Regulations
In connection with liability for defective design or inadequate instructions or warnings:
(a) A product’s noncompliance with an applicable product safety statute or administrative
regulation renders the product defective with respect to the risks sought to be reduced by
the statute or regulation; and
(b) a product’s compliance with an applicable product safety statute or administrative
regulation is properly considered in determining whether the product is defective with
respect to the risks sought to be reduced by the statute or regulation, but such compliance
odes not preclude as a matter of law a finding of product defect.
Comment d: different issue than federal preemption of state tort law. Compliance with safety
standard to be given little or no weight, if deliberative process that led to the safety standard with
which the D’s product complies was tainted by the supplying of false information to, or the
withholding of necessary and valid information from, the agency that promulgated the standard
or certified or approved the product

RST 3d § 10: Products Liability: Post-Sale Failure Duty to Warn

(a) One engaged in the business fo selling or otherwise distributing products is subject to
liability for harm to persons or property caused by the seller’s failure to provide a
warning after the time of sale or distribution of a product if a reasonable person in the
seller’s position would provide such a warning.
(b) A reasonable person in the seller’s position would provide a warning after the time of
sale if:
(1) the seller knows or reasonably should know that the product poses a
substantial risk of harm to persons or property; and
(2) those to whom a warning might be provided can be identified and can
reasonably be assumed to be unaware of the risk of harm; and
(3) a warning can be effectively communicated to and acted on by those to whom
a warning might be provided; and
(4) the risk of harm is sufficiently great to justify the burden of providing a
warning.
Comment c: as a practical matter, most post-sale duties to warn arise when new information is
brought to the attention, after the time of sale, concerning risks accompanying the product’s use
or consumption . . . Where reasonable grounds exist for the seller to suspect that a hitherto duty
exists, especially when the risk involved is great, the duty of reasonable care may require
investigation.

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