April 4, 2009
Beyond Negligence: Intentional and Strict Liability in the Third Restatement
The second panel yesterday covered two topics: "Beyond Negligence: Intentional and Strict Liability Torts and An Integrated Third Restatement." Ellen Bublick (Arizona), Ellen Pryor (SMU) and Ken Simons (BU) presented. The panel was moderated by ALI Deputy Director Elena Cappella. Jerry Palmer (Palmer, Leatherman) and Ralph Jacobs (Jacobs & Singer LLC) provided commentary.
Pryor is the co-ordinating reporter for the remaining portions of R3. She discussed "Restatement Third of Torts: Coordination and Continuation" (pdf).
Pryor explained the "coordination project," which addresses the need to reconcile terminology in the 3 completed/nearly complete projects and ensure the same coordination in future projects. Pryor noted that the work is pretty much done on the 3 completed/near complete projects, though not yet approved. Pryor also noted the working group's agreement that the goal should be a full R3 of Torts that will completely supplant the R2. She then identified the major topics that should be included in the R3: accidental physical and emotional harm, products liability, apportionment, damages for accidental physical and emotional harm, intentional torts to persons, economic torts, torts relating to interests in land and water, and defamation & privacy.
The first three are complete or near-complete. Cappella noted that the first 6 chapters of the Liability for Physical Harms project will comprise the first volume of the R3, which will be voted on by the ALI in May.
Bublick presented "The Restatement (Third) of Torts: Liability for Intentional Physical Harms" (pdf).
Bublick discussed the need for a R3 on intentional torts to persons. Bublick proposed a binary structure modeled on the R3 for physical and emotional harm - those who intentionally cause physical harm are subject to liability with an accompanying non-liability provision to except cases where liability is inapt. Bublick anticipated challenges with the trespassory torts, which do not fit within this baseline rule of physical harm, and similar challenges with the false imprisonment & assault torts. Bublick suggested that perhaps the project could regroup the intentional torts into two categories: (1) intentional physical injury to persons and (2) intentional dignitary and emotional injuries to persons.
Simons examined R3's treatment of strict liability doctrines. He noted that the R3's comments suggest 5 rationales for strict liability, and he divided the rationales into two broad categories of economic incentives and fairness incentives. In the economic category, he noted the incentive for the injurer to optimize the level of care, and the incentive for the injurer to optimize the level of activity. In the fairness category, he placed nonreciprocal risk, nonreciprocal benefit, and "exclusive causation," i.e., the defendant was the exclusive cause of theharm. Simon also explained that the R3 rejects loss-spreading as a rationale for strict liability. Simon commented that given these strong rationales, one would expect strict liability to apply in a wide range of circumstances. He found that the doctrine was not co-extensive with the rationales, and concluded that that a likely reason for the confined scope of the doctrine is that strict liability is palatable only when its burdens and effects are modest.
During the Q&A, Mark Geistfeld (NYU) described strict liability as "the conscience of tort law," and noted that the rationales for strict liability have implications for tort law as a whole. Geistfeld argued that it was a mistake for the R3 to excise any social values consideration in the strict liability rationales. He agreed that the R3 was being faithful to the case law in this regard, but urged that the R3 should educate courts.
During the commentary, Palmer suggested that the R3 consider giving attention to guns under strict liability, and Jacobs urged future work on economic torts.
You can listen to this panel here.
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