The highest courts of two states recently adopted Sections of the Restatement of the Law Second, Torts and Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm. Summaries of those opinions follow.
In Rublee v. Carrier Corporation, 428 P.3d 1207 (Wash. 2018), the Supreme Court of Washington adopted the “apparent manufacturer” doctrine as set forth in Restatement Second, Torts § 400 for common-law product-liability claims predating Washington’s 1981 Tort and Product Liability Reform Act (“WPLA”).
In that case, the surviving spouse of a machinist who died of mesothelioma, individually and as the personal representative of decedent’s estate, converted decedent’s personal-injury action into a wrongful death action against, among others, the parent corporation of the entity that had manufactured, sold, and distributed asbestos-containing products decedent had used. The spouse sought to impose liability on the parent corporation as an apparent manufacturer under Restatement Second, Torts § 400, alleging that the parent corporation represented itself as a manufacturer of the products that caused decedent’s mesothelioma. The trial court granted the defendant’s motion for summary judgment, finding that a reasonable purchaser would not have been induced to believe that the defendant was an apparent manufacturer of the products within the meaning of § 400. The court of appeals affirmed.
Reversing the court of appeals and remanding for further proceedings, the Supreme Court of Washington held that genuine issues of material fact existed as to whether a reasonable consumer could believe that the defendant was a manufacturer of the asbestos products that caused decedent’s illness and death. The court “formally adopt[ed] § 400 and recognize[d] the apparent manufacturer doctrine for claims arising before the WPLA’s effective date,” and explained that, in determining whether a nonmanufacturing entity such as the defendant was an apparent manufacturer under § 400, it would adopt the “objective reliance” test, which depended on the perception of a reasonable consumer who actually used the products such as decedent, rather than a sophisticated industrial purchaser of the products such as decedent’s workplace. The court explained that its adoption of this Section built on the court’s general acceptance of Restatement principles in similar contexts, including its adoption of §§ 402A and 388, was in accord with the clear majority of jurisdictions to consider § 400 and to formally adopt it, and was consistent with Washington statutory law, given that apparent manufacturer liability was adopted in the WPLA and “[t]he apparent manufacturer doctrine articulated in § 400 is entirely compatible with our state’s statutory product liability law.” The dissent noted that it agreed with the majority that, in the right case, Washington should adopt § 400’s “apparent manufacturer” doctrine and that the “objective reliance” test was the correct test under Washington law, but disagreed with the way the majority applied that test, arguing that, where the ordinary consumer of the product was not the ordinary purchaser, the test should be applied from the perspective of the ordinary purchaser.
In State v. Roache, 2018 WL 6004927 (Iowa, Nov. 16, 2018), the Supreme Court of Iowa adopted the scope-of-liability analysis in Restatement of the Law Third, Torts: Liability for Physical and Emotional Harm §§ 29 and 33 for criminal restitution cases.
In that case, the state charged a suspect with 11 counts after he was apprehended in possession of property stolen from several victims’ parked vehicles. The trial court accepted the suspect’s guilty pleas to one count of criminal mischief and one count of burglary, and sentenced him to an indeterminate prison term not to exceed five years for criminal mischief and two years for burglary, with the sentences to run concurrently and with credit for time served. The trial court dismissed the remaining counts but ordered the defendant to pay restitution on all 11 counts. The defendant filed a written objection to two items, including $1,900 for a stolen paperback study guide for a training course for commercial-truck drivers that was in a victim’s stolen backpack, which was the amount of the fine for loss of the study guide that the operator of the training course had assessed against the victim but not yet collected from the victim. The trial court ordered, among other things, the defendant to pay the $1,900 for the study guide. The court of appeals affirmed the trial court’s restitution award in full.
The Supreme Court of Iowa vacated the court of appeals’ decision and reversed the trial court’s restitution order as to the $1,900 award for the study guide. The court expressly adopted the risk standard in §§ 29 and 33, which limited the scope of an actor’s liability by requiring consideration of, among other things, whether the harm at issue was a result of any of the risks created by the actor’s tortious conduct, in the context of criminal-restitution determinations. The court noted that, previously, in Thompson v. Kaczinski, 774 N.W.2d 829 (Iowa 2009), it had adopted Restatement Third, Torts: Liability for Physical and Emotional Harm § 29’s risk standard for civil tort actions, and explained that “[l]iability for intentional torts extends to a broader range of harms than merely negligent conduct,” as provided in § 33. In examining the defendant’s challenge to the $1,900 award, the court concluded that the trial court erred by awarding the amount without substantial evidentiary support, explaining that, among other things, this unpaid fine alone was insufficient to support the restitution award, because there was no evidence that the operator of the training course intended to attempt to collect any amount from the victim beyond whatever the defendant was required to pay in court-ordered restitution.
The dissent argued that the trial court’s restitution award should be upheld as supported by substantial evidence, noting that, “[a]s the court ultimately recognizes, this is an issue of damages, not scope of liability.” The dissent pointed out that the Restatement Third, Torts: Liability for Physical and Emotional Harm did not address damages for intentional torts to property, and thus relied on Restatement Second, Contracts § 356 and Restatement Second, Torts § 927 for support, as did the majority.