The highest courts of two states recently adopted sections of the Third Restatements of Torts. Summaries of those cases are provided below.
In Nielsen ex rel. C.N. v. Bell ex rel. B.B., 2016 WL 1178392 (March 24, 2016), the Supreme Court of Utah adopted Restatement Third of Torts: Liability for Physical and Emotional Harm
§ 10. The case was brought by a babysitter who was blinded in one eye when her four-year-old charge threw a rubber toy at her. The plaintiff brought a negligent-supervision claim against the child’s parents and a negligence claim against the child. The trial court granted the parents’ motion for summary judgment but denied the child’s motion for summary judgment, concluding that “it could not find as a matter of law that the boy was incapable of negligence.” On interlocutory review, the Supreme Court of Utah reversed the order denying summary judgment for the child and adopted the rule of § 10 that children under the age of five could not be held liable for negligence. The court stated that “the [R]estatement rule is consistent with the rule adopted by the majority of states, which holds that children under the age of at least five (several states have a higher age limit) may not be held liable for negligence.” It also observed that a “number of policy considerations support the [R]estatement rule,” noting, among other things, that “[c]hildren under the age of five have a limited capacity to appreciate how their actions can cause harm to themselves or others and have an inadequate internal ability to control impulses that may lead to injuries.”
In Safeway, Inc. v. Rooter 2000 Plumbing and Drain SSS, 368 P.3d 389 (2016), the Supreme Court of New Mexico adopted Restatement Third of Torts: Apportionment of Liability § 22. The case arose out of negligence claims brought by a mother and her child who were injured when a changing table collapsed in a Safeway grocery store. The plaintiffs brought negligence claims against both the store and the plumbing company that installed the changing table; they settled their claims with the plumbing company, but the claims against the store went to trial. The trial court entered judgment on a jury verdict for the plaintiffs and awarded damages, but found the store to be only 40 percent negligent and the plumbing company to be 60 percent negligent. Consequently, the store brought a cross-claim for, among other things, traditional indemnification against the plumbing company. The trial court granted the plumbing company’s motion for summary judgment and dismissed that claim. The court of appeals reversed. Reversing the decision of the court of appeals and affirming the trial court’s dismissal of the cross-claim, the Supreme Court of New Mexico held that “traditional indemnity [was] not applicable in this case because Plaintiffs clearly advanced, and the jury found, theories of liability that alleged Safeway to be an active tortfeasor.” The court explained that it would adopt § 22 of the Restatement “because it correctly limits the application of traditional indemnity to cases truly premised on vicarious or derivative liability.”
The Institute is currently working on other portions of the Restatement Third of Torts—Restatement Third, Torts: Intentional Torts to Persons, and Restatement Third, Torts: Liability for Economic Harm. To learn more about these projects, visit the projects page.