The Restatement Second of Torts continues to attract favorable attention from state courts, with the Vermont and Utah Supreme Courts recently handing down decisions adopting two different sections of that Restatement.
In a case involving a defamation claim, the Vermont Supreme Court adopted the conditional privilege recognized by Restatement Second of Torts § 598A for inferior state officers whose statements were made in performance of official duties. In that case, the losing bidder on a contract to run a state-subsidized spay/neuter program for pets of low-income residents sued an employee of the state agency that administered the program, alleging that defendant made false statements to co-workers during the bid-selection process about plaintiff’s ability to run the program, and that these libelous statements prejudiced the bid-selection committee against her. The trial court dismissed on immunity grounds; the Vermont Supreme Court affirmed, but did so by concluding instead that the Restatement’s conditional privilege for inferior state officers was directly applicable in this case and extended to defendant’s statements, because plaintiff had alleged that defendant was an employee of the state agency at issue and had made the statements in the course of her employment. Since plaintiff’s complaint thus showed the presence of the conditional privilege, plaintiff had the burden of overcoming it by demonstrating that defendant had abused the privilege by acting with malice. Finding plaintiff’s allegations of malice deficient, the court declined to infer that defendant had acted intentionally, knowingly, or recklessly for purposes of defeating the conditional privilege. Skaskiw v. Vermont Agency of Agriculture, 2014 WL 7237236 (Dec. 19, 2014).
The Utah Supreme Court, in a negligence action, expressly adopted the standards set forth in Restatement Second of Torts § 317, which describes an employer’s duty to exercise reasonable care in preventing its employees from acting outside the scope of employment in intentionally harming others. Parents brought suit on behalf of their minor daughter against a provider of services for individuals with mental and physical disabilities, alleging that, because of the provider’s negligence in the hiring, training, and supervision of its employees, their daughter, who had been playing outside one of its neighborhood residential facilities and had been invited inside to watch television, was sexually assaulted by a facility employee. The Utah Supreme Court affirmed the trial court’s denial of defendant’s motion for summary judgment on the question of duty, concluding that defendant owed a duty to plaintiffs’ daughter to exercise reasonable care in hiring, training, and supervising its employees on the basis of a special relationship established under the terms of § 317. The court reasoned that, because it was more than foreseeable that defendant’s workers would come into contact with the public, including children such as plaintiff’s daughter, defendant was hardly in a position to question the basis for its knowledge of the necessity of controlling its employees in their interactions with the public. In adopting § 317, the court observed that, while it had not previously endorsed the standards of that section directly, it found those standards eminently reasonable, noting that § 317 had been widely endorsed throughout the United States. Graves v. North Eastern Services, Inc., 2015 UT 28, 2015 WL 404528 (Jan. 30, 2015).