CIVIL - SPECIAL REPORT

Reigning in New Ways to Sue Where Lawmakers Never Intended

BY CHRISTOPHER E. APPEL of of America (now called the Act addresses this problem by requiring American Association for Justice) Larry that any establishing a new private t may surprise some legislators to know Stewart for an article in Trial, the monthly right to sue must expressly state such legis- I that when develop the state com- publication of the trial group. In the lative intent, and that courts may not “sec- mon law of they routinely look to a article, titled “The New Restatement’s Top ond-guess” the will of the . Thus, document developed by a private group 10 Tools,” the two authors discuss their the model Act e!ectively eliminates this called the (ALI). most prized changes in the recently final- avenue for judicial activism. The ALI represents the elite of the legal ized Restatement, and the potential of this The new Restatement, however, spon- community, and is composed of law pro- “powerful new tool” to create or enhance sors an entirely new way to use fessors, , and distinguished public tort liability in unprecedented ways. 2 to create an avenue to sue. It invites judges and private sector lawyers from around the One of the “top ten” changes discussed to recognize what are known as a"rmative country. The document to which courts is to call upon state judges to take provi- duties of care, which, when breached, will, refer is called the Restatement of Torts, sions from enacted legislation and create as a practical matter, result in the same new and its content is supposed to reflect the new ways to sue people, even where the and unexpected liability. The model Act most sound liability rules and public policy legislature never stated or intended such a was amended to prevent courts from cir- derived from judicial decisions. result. Following the adoption of the new cumventing the core objective of the Act by The first Restatement of Torts was Restatement by the ALI, ALEC revised its simply implying an a"rmative duty based EFWFMPQFEJOUIFT UIFTFDPOEJOUIF model Transparency in Protection upon a when not permitted to imply 1960s and 1970s, and the third began in Act (Act) specifically to address this major a private cause of action under that statute. the 1990s and continues to this day. The change. A touchstone of American legal tra- dition is that a person or entity generally owes no duty to rescue or render assis- “ ...the new Restatement has the potential tance to another. A"rmative duties rep- resent an exception to this basic rule and to radically transform tort liability and require a person or entity to act to rescue or reduce risks of harm to another. Tradition- wreak legal chaos ...” ally, a"rmative duties are narrowly drawn. They may exist by virtue of the relationship of the parties (e.g. employers owe a duty latest part is called the Restatement (Third) The original ALEC model Act targeted to protect employees) or by certain actions of Torts: Liability for Physical and Emotional what are called “implied causes of action.” undertaken by a defendant, such as begin- Harm. Much of this new Restatement pres- Implied causes of action are -created ning a rescue attempt. ents fair liability rules, but some parts, causes of action. When interpreting a stat- Under the new Restatement, courts may unfortunately, seek rather dramatic depar- ute or a court injects its opinion “imply” an a"rmative duty based upon tures in the law. on what it thinks the legislature intended, their reading of any statute or other law.  The principal author or “Reporter” of and recognizes a new basis in which to They are permitted to determine the scope the new Restatement, Professor Michael bring a private . Because the exis- of any new a"rmative duty they create, Green, 1 has recently acknowledged as tence of a private cause of action is highly and recognize such a duty regardless of the much when teaming up with former plain- amorphous and often unpredictable, it can actual intent of the state legislature when ti!s’ lawyer and President of the Association result in judicial activism. ALEC’s model the law was enacted. 4 The new Restatement

1 The Restatement (Third) of Torts: Liability for Physical and Emotional Harm project has had a series of Reporters. The original project Reporter, Professor Gary Schwartz, passed away in 2001. He was succeeded by Texas School of Law Dean William C. Powers and Wake Forest University School of Law Professor Michael Green. Dean Powers became the President of the University of Texas in 2006, placing the principal drafting responsibilities of the Restatement project with Professor Green. 2 Michael D. Green & Larry S. Stewart, The New Restatement’s Top 10 Tort Tools, Trial , April 2010, at 44. 3 See Restatement (Third) of Torts: Liability for Physical and Emotional Harm , § 38 (Final Proposed Draft No. 1, April 6, 2005). 4 See id.

t*OTJEF"-&$].BSDI CIVIL JUSTICE - SPECIAL REPORT

provides a very broad rule in which courts professor. Rather than establishing clear, ; the model Act only states need only find that an a"rmative duty is balanced liability rules, this part of the new that a court cannot use a statute to do so not “inconsistent with” any statute requir- Restatement, ironically, is far more likely to unless it is stated in the statute. Thus, the ing an actor to act for the protection of increase judicial confusion and lead activ- overall e!ect of the model Act is simple: the another for a new duty to be created under ist courts down a slippery slope of recog- legislature must clearly state how law is to the common law of the state. 5 The e!ect of nizing new a"rmative duties in ways never be enforced, and it is not the role of the this new “black letter” rule presents both before imagined. to step in the legislature’s shoes to a highly ambiguous and remarkable prop- The ALEC model Transparency in Law- make that policy . osition for courts; judges are empowered suits Protection Act prevents courts from With the published volume of the new to recognize a"rmative duties where they engaging in an open-ended exercise with Restatement part on a"rmative duties have never before existed and where there regard to recognizing a"rmative duties. It coming out this year, many state courts are is no or other authority to support provides a common sense way of infusing likely to soon be confronted with claims them. While a"rmative duties have been greater clarity in the legislative process by seeking to expand common law duty rules. narrowly circumscribed for centuries, the requiring that state be explicit ALEC members should be aware of this new Restatement has the potential to radi- cally transform tort liability and wreak legal chaos in a state adopting the rule. For example, a court could read a com- “ ...the legislature must clearly state how law mon law a"rmative duty into almost any law related to protective services, cus- is to be enforced, and it is not the role of tody, control, or oversight authority. Richard Posner of the 7th Circuit Court of the judiciary to step in the legislature’s Appeals has also cautioned that under such a rule “every statute that specified a standard shoes to make that policy judgment.” of care would be automatically enforceable CZUPSUTVJUTGPSEBNBHFT‰FWFSZTUBUVUFJO e!ect would create an implied private right when creating new a"rmative duties of e!ort to upend and reshape the traditional of action.” 6 care just as the legislature should be when limits of a"rmative duties, and understand Equally as disconcerting as the poten- creating any new private statutory cause how the Transparency in Lawsuits Protection tially sweeping scope of the new rule (i.e. of action. The model Act further instructs Act can provide a vital safeguard against any statute, regulation, local ordinance, or courts not to read into a statute a common such expansion of tort liability. other law is fair game) and the lack of clear law duty of care or private cause of action Georgia, for example, enacted a ver- standards for courts to apply the rule is the unless one is expressly provided. sion of the model Act last year. Texas Gov. utter lack of legal authority supporting the The model Act recognizes that whether Rick Perry is also pursuing passage of the rule. The traditional purpose of the ALI’s a law creates a new private cause of action Act, as are other states appreciative of the Restatement of Law project is to “restate” or an a"rmative duty of care is a signifi- urgency and potential consequences of what the law actually is in a clear manner. cant public policy decision that should be the new Restatement’s approach. The new The part of the new Restatement address- reached by the legislature after close consid- Restatement is indeed a “powerful new tool” ing a"rmative duties seemingly abandons eration and deliberation. By requiring such for creating tort liability, and legislation is this neutral and objective approach, and action to be done in a clear and transparent needed to curb its excesses. instead adopts rules that are not mentioned manner, the Act would eliminate confusion in any prior restatements and that do not in the courts, needless and wasteful litiga- exist under any state’s law. tion over the possible meaning of a statute, Such a lack of authority is especially inconsistent results, and unfair surprise for Christopher E. Appel is an attorney in the problematic because, although not bearing both plainti!s and defendants. Public Policy Group in the Washington, D.C. the force of law, restatements are viewed as It is also important to note that the o!ce of Shook, Hardy & Bacon, L.L.P., and a supremely objective tool for judicial edu- model Act does not otherwise impact serves as an advisor to ALEC’s Civil Justice cation; 7 not a “reformist” proposal of a law courts’ inherent authority to develop state Task Force.

5 Restatement (Third) of Torts: Liability for Physical and Emotional Harm , § 38 cmt. e. 6 Cuyler v. United States, 362 F.3d 949, 952 (7th Cir. 2004). 7 The ALI’s purpose is “educational” and includes “promot[ing] the clarification and simplification of the law and its better adaptation to social needs.” The Am. Law Inst., Bylaw §1.01, reprinted in 74 A.L.I. Proc. 521 (1997).

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