SURVEY OF HOW COURTS NATIONALLY CITE THE ’S RESTATEMENTS

50-State Survey

State Citation Note

Alabama Keller v. Kiedinger, 389 So. 2d 129, “After careful consideration, we are convinced the Restatement proposes 132 (Ala. 1980). the best view, and we adopt s 390 as the law of this state.” Alaska Saddler v. Alaska Marine Lines, Inc., “On the issue of strict products liability, we have adopted the 856 P.2d 784, 787 (Alaska 1993). Restatement (Second) of § 402A (1965), with some exceptions.” Flint Hills Res. Alaska, LLC v. “The rules in aid of interpretation are set out in section 202 of Williams Alaska Petroleum, Inc., 377 the Restatement (Second) of .” P.3d 959, 975 (Alaska 2016). Arizona In re Sky Harbor Hotel , “Absent controlling authority to the contrary, we generally follow LLC, 246 Ariz. 531, 533, 443 P.3d 21, the Restatement when it sets forth sound legal policy.” 23 (2019) (quoting CSA 13-101 Loop, LLC v. Loop 101, LLC, 236 Ariz. 410, 414 ¶ 18, 341 P.3d 452, 456 (2014)). KnightBrook Ins. Co. v. Payless Car “‘In Arizona, if there is no statute or on a particular subject, we Rental Sys. Inc., 243 Ariz. 422, 427, have traditionally followed the Restatement of Laws, and generally will 409 P.3d 293, 298 (2018). embrace the Restatement if it prescribes a sound and sensible rule.’ Cramer v. Starr, 240 Ariz. 4, 10 ¶ 21, 375 P.3d 69, 74–75 (2016) (citations and internal quotation marks omitted). Although we leave for another day whether to adopt other portions of the First or Third Restatements of , we now decline to adopt First Restatement § 78 because it is contrary to Arizona’s equitable indemnity principles and does not, in our view, reflect a sound rule.” Owner-Operator Indep. Drivers Ass'n “Arizona courts follow the Restatement of the Law unless the Legislature v. Pac. Fin. Ass'n, Inc., 241 Ariz. 406, or our courts have adopted a contrary rule.” 414, 388 P.3d 556, 564 (Ct. App. 2017).

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Powers v. Taser Intern. Inc., 174 P.3d “Absent controlling Arizona law to the contrary, we generally follow the 777, 782 (Ariz. Ct. App. 2007). Restatement, provided we deem it good legal authority . . . . However, we do not follow the Restatement blindly . . . and will come to the contrary conclusion if Arizona law suggests otherwise.” Arkansas Stewart Title Guar. Co. v. Am. Abstract “The majority seeks to define [the first] element [of tortious interference & Title Co., 363 Ark. 530, 562, 215 with a business expectancy] by looking to Professor Prosser and S.W.3d 596, 616 (2005) (Corbin, J. the Restatement (Second) of Torts. While this court has looked to Prosser Dissenting). for guidance in prior cases dealing with this , I do not feel that we need to resort to such sources here, as there is sound from the Eighth Circuit and the Eastern District of Arkansas.” California Lake Almadnor Associates L.P. v. “Although the Restatement Second of Contracts (Restatement) is not Huffman-Broadway Group, Inc., 178 binding authority, ‘considering the circumstances under which it has been Cal.App. 4th 1194, 1200 n.3 (Cal. Ct. drafted, and its purposes, in the absence of a contrary statute or decision App. 2009). in this state, it is entitled to great consideration as an argumentative authority.’” Colorado More v. Western Forge Corp., 192 “While not binding on Colorado courts, ‘the restatements generally P.3d 427, 429 (Colo. Ct. App. 2007) provide concise summaries of the law in a certain subject matter and can (quoting AE, Inc. v. Goodyear Tire & be persuasive authority.’” Rubber Co., 168 P.3d 507, 509 n. 1 (Colo. 2007)). Bayer v. Crested Butte Mountain “Although the Restatement (Second) of Torts does not have the force of Resort, Inc., 960 P.2d 70, 79 (Colo. law, we may look to it as a summary of guiding legal principles.” 1998), as modified on denial of reh'g (June 22, 1998). Cafeteria Operators L.P. v. “[I]t is impossible for a court to ‘adopt’ a Restatement in the legislative AMCAP/Denver Ltd. P'ship, 972 P.2d sense. Rather, we may apply sections of the Restatements as a 276, 278 (Colo. App. 1998). formulation of the law applicable to the issue before the court.” Connecticut Snell v. Norwalk Yellow Cab, Inc., 158 Stating that the Restatement (Second) of Torts is not binding if it A.3d 787, 805 (Conn. Ct. App. 2017) conflicts with state precedent. Delaware Riedel v. ICI Americas Inc., 968 A.2d “At this time, we decline to adopt any sections of the Restatement (Third) 17, 20 (Del. 2009), overruled on other of Torts. The drafters of the Restatement (Third) of Torts redefined the

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grounds by Ramsey v. Georgia S. Univ. concept of duty in a way that is inconsistent with this Court's Advanced Dev. Ctr., 189 A.3d 1255 and traditions. The Restatement (Third) of Torts creates duties in areas (Del. 2018). where we have previously found no duty and have deferred to the legislature to decide whether or not to create a duty. . . . Whether the expansive approach for creating duties found in the Restatement (Third) of Torts is viewed as a step forward or backward in assisting courts to apply the common law of negligence, it is simply too wide a leap for this Court to take. Therefore, at the present time we continue to follow the Restatement (Second) of Torts.” District of Richardson v. Nationwide Mut. Ins. “We ought not to assume too readily that our decisions should be Columbia Co., 826 A.2d 310, 322 (D.C.), reh'g construed in a way that makes them inconsistent with the Restatement, en banc granted, opinion vacated, 832 which is written by the American Law Institute (ALI), an organization A.2d 752 (D.C. 2003), and vacated comprised of especially distinguished judges, attorneys, and pursuant to settlement, 844 A.2d 344 scholars. See, e.g., Poretta v. Superior Dowel Co., 153 Me. 308, 137 A.2d (D.C. 2004). 361, 373 (1957). ‘The Restatement may be regarded both as the product of expert opinion and as the expression of the law by the legal profession.’ Id. Although we are not required to follow the Restatement, we should generally do so ‘where we are not bound by the previous decisions of this court or by legislative enactment, ... [for] by so doing uniformity of decision w[ill] be more nearly effected.’ Smith v. Normart, 51 Ariz. 134, 75 P.2d 38, 42 (1938); see also Ellis v. James V. Hurson Assocs., 565 A.2d 615, 618 (D.C. 1989); Gallimore v. Washington, 666 A.2d 1200, 1213–14 (D.C. 1995) (dissenting opinion) (addressing an issue not reached by the majority).” Florida Westgate Resorts, Ltd. v. Sussman, 387 “Florida courts have regularly turned to the Restatement (third) F. Supp. 3d 1318, 1352 (M.D. Fla. for guidance in cases involving the professional obligations of lawyers 2019). and law firms.” Canta v. Philip Morris USA, Inc., 245 So. 3d 813, 821 n.8 (Fla. 3d DCA 2017). Florida also “follows the Restatement (Second) of Torts § 766 (1977) for [intentional interference] cause[s] of action.” Martin Petroleum Corp. v. Amerada Hess Corp., 769 So. 2d 1105, 1107 (Fla. 4th DCA 2000) (citing Gossard v. Adia Servs., Inc., 723

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So. 2d 182, 185 (Fla. 1998)). Section 766, in turn, cross-references sections 768–773. See Restatement (Second) of Torts § 766 cmt. a. Georgia Dziwura v. Broda, 676 S.E.2d 400, 402 “While not binding authority, we find the Restatement persuasive.” (GA Ct. App. 2009). Realmark Inv. Co. v. Am. Fin. Corp., “Because no controlling precedent exists, the Court must decide the 171 B.R. 692, 694 (N.D. Ga. 1994). conflict of law issue as it believes the Georgia Supreme Court would decide it. Wammock v. Celotex Corp., 835 F.2d 818 (11th Cir.1988). For guidance, the Court may consider Restatements of Law, treatises, law review commentaries, decisions from other jurisdictions whose doctrinal approach is substantially the same, and the majority view of the other states. Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, 19 Federal Practice and Procedure § 4507 (1982).” Hawaii Bynum v. Magno, 106 Haw. 81, 87, Compare Majority opinion, “This court has many times relied on 101 P.3d 1149, 1155 (2004), as the Restatement (Second) of Torts as persuasive authority,” with amended (Dec. 2, 2004) Dissenting opinion, “The majority offers no compelling justification or cogent reason to disregard our precedent and resort to the Restatement's discussion of the collateral source rule . . . .” Idaho Asbury Park, LLC v. Greenbriar Estate “‘The Restatement is not law unless it has been adopted by this Court. Homeowners' Ass'n, Inc., 152 Idaho This Court will not adopt a Restatement provision if it is inconsistent 338, 345, 271 P.3d 1194, 1201 (2012) with Idaho precedent, a different formulation resolved the issue, or the (quoting Estate of Skvorak v. Sec. issue can be resolved by current Idaho law.’” Union Title Ins. Co., 140 Idaho 16, 22, 89 P.3d 856, 862 (2004)). Illinois Cochran v. Securitas Sec. Services “Generally, a Restatement provides guidance to a court but does not USA, Inc., 59 N.W.3d 234, 247 (Ill. Ct. become binding authority unless specifically adopted by our supreme App. 4th Dist. 2016). court.” Tilschner v. Spangler, 409 Ill. App. 3d “In the absence of Illinois law, we often deem secondary sources, such as 988, 994 & n. 2, 949 N.E.2d 688, 694 the Restatement (Second) of Torts, to be persuasive. * * * ‘A secondary (2011) (quoting Secondary source is not the law. It's a commentary on the law. A secondary source Sources, Yale Law School, Lillian can be used for three different purposes: it might educate you about the Goldman Law Library, http://m- law, it might direct you to the primary law, or it might serve

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library.law.yale.edu/content/secondary- as persuasive authority. Few sources do all three jobs well. The important sources) (emphasis in original). classes of legal secondary sources include: treatises, periodical articles, legal encyclopedias, ALR Annotations, Restatements, and Looseleaf services. * * * Restatements The restatements were developed by legal scholars initially to restate the law, and currently to describe what the law should be. In either case, Restatements are very persuasive although they are not very good at describing the law. They can serve as adequate law finders.’” Indiana Americans for the Arts v. Ruth Lilly “. . . we observe that the Restatement is ‘not a statute whose precise Charitable Remainder Annuity Tr. No. wording is entitled to deference as an act of an equal branch of 1 U/A Jan. 18, 2002, 855 N.E.2d 592, government.’” 600 (Ind. Ct. App. 2006)

Iowa Heinz v. Heinz, 653 N.W.2d 334, 339 “In general, we look at the Restatement not as the law but as a guide.” (Iowa 2002). Moad v. Libby, 863 N.W.2d 37, at *3 “Our courts adopt the rules and rationale set forth in a (Iowa Ct. App. 2015) (unpublished). particular Restatement only to the extent the rules and rationale are deemed consistent with our body of law and have persuasive force. See Thompson v. Kaczinski, 774 N.W.2d 829, 839 (Iowa 2009). Thus, although our court may adopt the rules or rationale set forth in a particular Restatement, we do not necessarily do so jot-for-jot.”

Kansas Progressive Nw. Ins. Co. v. Gant, No. Noting the Honorable Antonin G. Scalia’s criticism of 15-9267-JAR-KGG, 2018 WL modern Restatements “for losing si[gh]t of their purported mission of 4600716, at *6 (D. Kan. Sept. 24, summarizing existing law.” 2018) (citing Kansas v. Nebraska, 135 S. Ct. 1042, 1064 (2015) (Scalia, J., concurring in part and dissenting in part)).

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Nichols v. Kansas Political Action “The Restatement, of course, is not a compilation of Kansas law. Thus, Committee, 11 P.3d 1134, 1140 (Kans. when presented with the question of recognizing a cause of action, which 2000). is set forth in the Restatement but has not been prosecuted in Kansas courts, this court typically weighs relevant factors, and declares either that it is adopting or not adopting a rule set forth in a Restatement section.” Kentucky Presnell Const. Managers, Inc. v. EH “Because we find § 552 to be consistent with Kentucky case law, we join Const., LLC, 134 S.W.3d 575, 582 the majority of jurisdictions and hereby adopt § 552's standards for (Ky. 2004). negligent misrepresentation claims in this jurisdiction.” Scheck Mechanical Corp. v. Borden, “We have recognized that, based upon Kentucky's general adoption of Inc., 186 F.Supp.2d 724, 734 (W.D. the Restatement in other tort situations, Kentucky would recognize this Ky. 2001). standard for negligent misrepresentation.” Goldman Services Mechanical “Based upon Kentucky's general adoption of the Restatement in other tort Contracting, Inc. v. Citizens Bank & situations, the court concurs with that conclusion.” Trust Co. of Paducah, 812 F.Supp. 738, 742 (W.D. Ky. 1992). Louisiana In re Two-J Ranch, Inc., 534 F. Supp. Recognizing that “the Restatements are, at best, persuasive authority.” 2d 671, 688 (W.D. La. 2008). Nicholas v. Allstate Ins. Co., 765 So.2d “Although the Restatement is not binding on Louisiana courts, the 1017, 1021 n.4 (La. 2000) restrictions and guidelines established therein for policy reasons do provide guidance to our courts in the adjudication of these claims.” Maine Dupuis v. Fed. Home Loan Mortg. “[B]oth the federal courts and the Maine Law Court regularly rely on Corp., 879 F. Supp. 139, 142 (D. Me. the Restatements where, as here, no applicable precedents exist.” 1995) (citing United States v. Gil, 657 F.2d 712, 715 (5th Cir. 1981); Bonk v. McPherson, 605 A.2d 74, 78 (Me. 1992)). Maryland Sunbeam Prod., Inc. v. 148977 “While this Court agrees that the modern restatement might be more clear Canada, Inc., No. C-02-85666, 2004 and “business friendly” than the Maryland appellate holdings of 65 yeats WL 3135768, at *4 (Md. Cir. Ct. Mar. ago, the job of updating legal standards generally should be left to the 9, 2004) (unpublished).

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legislature. Therefore, this Court will adhere to the principles of stare decisis and apply the existing rule.”

Massachusetts Lou v. Otis Elevaor Co., 933 N.E.2d “[W]hile this court often considers the various Restatements of the Law 140, 148 (Mass. Ct. App. 2010) as prestigious sources of potentially persuasive authority, we have never taken the position that this court should abdicate to the views of the American Law Institute as set forth in its various Restatements.” Michigan Smith v. Allendale Mut. Ins. Co., 303 “Even where a particular Restatement section has received specific N.W.2d 702, 709 (Mich. 1981) judicial endorsement, cases where that section is invoked must be decided by reference to the policies and precedents underlying the rule restated.” Minnesota Travertine Corp. v. Lexington- “We will not adopt a provision of a Restatement of Law if our precedent Silverwood, 683 N.W.2d 267, 271 is to the contrary and we believe that our precedent still reflects the (Minn. 2004). proper rule of law.” Williamson v. Guentzel, 584 N.W.2d “Restatements of the law are persuasive authority only and are not 20, 24 (Minn. Ct. App. 1998). binding unless specifically adopted in Minnesota by statute or case law.” Mississippi Boardman v. United Servs. Auto. Ass'n, “As indicated above, this Court has expressly approved Restatement § 6 470 So. 2d 1024, 1032 (Miss. 1985) and incorporated it into the law of this state. . . Short of authoring a treatise on the subject which would be neither helpful nor read, we will simply say that the factors enumerated in Restatement § 6 will from case to case be given such relative weight as they are entitled, consistent with the general scheme of the center of gravity test.” Missouri D.T. v. Catholic Diocese of Kansas “And because the Restatements of the Law, as a series of treatises, are not City-St. Joseph, 419 S.W.3d 143, n.12 binding precedent upon any court but, rather, constitute the American (Mo. 2013) Law institute’s compilations of law and general statements on what the law is or should be, our Missouri Supreme Court may elect to continue to endorse an outdated and superseded RESTATEMENT (SECOND) OF TORTS, section 317, as one of the required elements of the tort of intentional failure to supervise clergy.” City of St. Louis v. Am. Tobacco Co. “In this case, however, the Court believes that plaintiffs' theory of Inc., 70 F. Supp. 2d 1008, 1015 (E.D. recovery may in fact be recognized for several reasons. First, courts in Mo. 1999). other states have adopted and recognized the Restatement of Restitution §

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115. . . . Second, Missouri state courts have often relied upon and adopted other provisions contained in the Restatement of Restitution. . . . For these reasons, the Court believes that plaintiffs' claim pursuant to the Restatement of Restitution § 115 should be presented to the Missouri state courts, if plaintiffs have otherwise demonstrated that they have properly stated a cause of action pursuant to section 115.” Montana Peterson v. Eichhorn, 2008 MT 250, ¶ “[Appellee] points out that § 509 has not been adopted in Montana and is 17, 344 Mont. 540, 544–45, 189 P.3d not binding authority. While this is true, it is also true that we 615, 620 (citations omitted). have adopted other sections of the Restatement. Thus, Eichhorn's observation that § 509 has not been adopted in Montana and is not binding authority does not end our analysis.” Nebraska Blinn v. Beatrice Cmty. Hosp. & Explaining that Nebraska has rejected Restatement (Second) of Contracts Health Ctr., Inc., 270 Neb. 809, 823, view of promissory estoppel in favor of a less demanding standard. 708 N.W.2d 235, 248 (2006).

Nevada Vega v. CTX Mortg. Co., LLC, 761 F. Noting that a state district court “anticipated that because the Nevada Supp. 2d 1095, 1097 (D. Nev. 2011). Supreme Court had adopted the Restatement (Third) of (Mortgages) in other contexts, that it would also adopt § 5.4 of the Restatement.”

New In re Tr. of Mary Baker Eddy, 212 Rejecting more stringent test for special interest standing proposed by Hampshire A.3d 414, 421-22 (N.H. 2019). Restatement of the Law Charitable Nonprofit Organizations in favor of a more flexible standard adopted in other jurisdictions because the more flexible standard better comported with New Hampshire law. New Jersey Tris Pharma, Inc. v. UCB “While we may look at the Restatement’s definition of a ‘trade secret’ as Manufacturing, Inc., 2016 WL additional support for the common law definition, the Restatement is not 4506129 at *5 (N.J. Superior Ct. Aug. binding upon our courts.” 29, 2016) New Mexico Fikes v. Furst, 2003-NMSC-033, ¶ 14, “Although the Restatement is not binding, we consider it to be 134 N.M. 602, 607, 81 P.3d 545, 550 ‘persuasive authority entitled to great weight.’”

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(quoting Gabaldon v. Erisa Mortgage Co., 1999–NMSC–039, ¶ 27, 128 N.M. 84, 990 P.2d 197). Gabaldon v. Erisa Mortgage Co., 990 “As a matter of course, we emphasize that the Restatement is merely P.2d 197, 204 (N.M. 1999) persuasive authority entitled to great weight that is not binding on this court.” Venaglia v. Kropinak, 1998-NMCA- “For authoritative guidance on the common law we look to the 043, ¶ 12, 125 N.M. 25, 30, 956 P.2d Restatement.” 824, 829. New York Thorn v. Stephens, 169 Misc.2d 832, “The Restatement of Law is not binding. In the absence of legal 834 fn.2 (N.Y. Supp. Ct. Westchester precedent, however, the Courts may look for guidance to such sources as 1995) the Restatements of Law.” North Williams v. Habul, 724 S.E.2d 104, “[T]he Restatement (Second) of Contracts serves as persuasive, not Carolina 110 (N.C. Ct. App. 2012). binding, authority upon this Court and, ‘[e]xcept as specifically adopted in this jurisdiction, the Restatement should not be viewed as determinative of North Carolina law.’ Hedrick v. Rains, 344 N.C. 729, 729, 477 S.E.2d 171, 172 (1996). Our Courts, however, have looked to the Restatement for guidance in cases involving third party beneficiary contracts.” North Dakota Stanley v. Turtle Mountain Gas & Oil, “The Restatements of Tort are carefully studied and precisely stated Inc., 1997 ND 169, ¶ 10, 567 N.W.2d summaries of basic principles of law. Barsness v. General Diesel & 345, 348. Equipment Co., 383 N.W.2d 840, 842 n. 1 (N.D. 1986). In Barsness, we recognized: ‘They are entitled to respect as authoritative and reasoned outlines of the law “as it has developed in the courts.”’ Id. at 842 n. 1, quoting Restatement (Second) of Torts, Introduction at VII.” Barsness v. Gen. Diesel & Equip. Co., “Barsness urges us to ‘adopt’ this section of the Restatement. Because the 383 N.W.2d 840, 842 n. 1 (N.D. 1986). Restatements are carefully studied and precisely stated summaries of basic principles of law, they are particularly useful for study and reference. They are entitled to respect as authoritative and reasoned outlines of the law ‘as it has developed in the courts.’ Restatement (Second) of Torts (1965), Introduction at VII. Although we have often

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relied upon and cited the Restatements as relevant authority, we believe it is inappropriate for a judicial body to ‘adopt’ principles of law as summarized in the Restatements. While at times the difference may appear semantical, there are important differences between ‘adopting’ a reference and relying upon it as relevant authority in a particular case. We are not a legislative body and we therefore cannot ‘adopt’ any part of the Restatements. Of course, we shall continue to use and cite Restatement references as authoritative and convenient expressions of principles of law where they are appropriate.” Ohio Dillon v. Waller, No. 95APE05-622, Referring to the Restatement of Torts as “persuasive authority” and 1995 WL 765224, at *7 (Ohio Ct. App. adopting Restatement rule as “the more reasoned approach.” Dec. 26, 1995) (unpublished).

Oklahoma Gomes v. Hameed, 2008 OK 3, ¶¶ 2-3, “Restatements of the common law on chosen subjects have long been 11, 184 P.3d 479, 491–92, 95 (Opala, recognized as a material source for tracking or monitoring the J. Dissenting) development and growth of common-law norms.3 The American Law Institute (ALI), a private national organization of judges, practitioners, and law teachers,4 crafts the restatements, whose purpose is to identify, simplify and clarify selected common-law norms. The restatement process is slow and deliberative. An ALI restatement on a given legal subject is developed gradually over a period of years. Today's hasty recognition of a new state common-law norm shortcuts severely the accepted restatement process by adopting into Oklahoma law a new legal norm on the basis of a single state's jurisprudential development of very recent vintage. . . .

Today's adoption of a new legal norm—taken from a single sister state's common-law jurisprudence—shortcuts severely the multiple-stage process of the ALI restatement work. The court's hasty and premature injection of a new Oklahoma norm of unwritten law without any consideration of its impact on existing common law throws to the winds

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the safeguards built into the ALI restatement system. I would await a careful and thorough ALI examination before adopting the tendered norm into the body of Oklahoma's common law.” Oregon Petersen v. Gangle, 899 P.2d 725 (Or. “Although we often look to the Restatement (Second) of Judgments for 1995). guidance in deciding questions of claim and issue preclusion, we are not bound by it.” Allen v. Heil Co., 285 Or. 109, 120, “It should be remembered that s 402A is not a statute and that as an 589 P.2d 1120, 1126 (1979). attempted restatement of common law it is binding upon this court only so long and in such particulars as we may find appropriate.” Pennsylvania Murray v. Willistown Twp., 2017 PA “Where, as here, the Supreme Court of Pennsylvania has neither adopted Super 265, 169 A.3d 84, 92 (2017). nor rejected a Restatement provision, we are free to adopt it in an appropriate case.” Newell v. Montana W., Inc., 154 A.3d “In the absence of a contrary pronouncement by the Supreme Court, we 819, 824 n.7 (Pa. Super. 2017). are free to adopt Section 349 in an appropriate case.” Tincher v. Omega Flex, Inc., 628 Pa. “[B]ecause the language of a provision of the restatement, even to the 296, 340–41, 104 A.3d 328, 354-55 & extent it was adopted by the Court verbatim, has not been vetted through n. 7 (2014). the crucible of the legislative process, a court applying the restatement formulation should betray awareness that the language of an ‘adopted’ restatement provision is not ‘considered controlling in the manner of a statute.’ A given restatement section simply states principles of the common law, general rules whose validity depends on the reasoning that supports them. Coyle, 584 A.2d at 1385. As with any other common law rules, the normative principles of an ‘adopted’ section of a restatement are properly tested against the facts of each case.”

“Consideration for whether the general principle has been accepted elsewhere reflects the understanding that the restatement purports to represent the majority view on the subject in the United States. See Adams, 33 Hofstra L.Rev. at 443–44. But, questions remain subject to dispute regarding the “essential nature of the modern Restatements” and whether uniformity among jurisdictions is

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necessary and wise. See generally Vargo, 26 U. Mem. L.Rev. at 515– 36 (describing internal criticism of some that membership of American Law Institute drafting Third Restatement “[wa]s largely comprised of those who represent[ed] corporate interests” and who “fail[ed] to leave the client at the door”); and see Adams, 33 Hofstra L.Rev. at 443– 44 (offering argument that “fit” for jurisdiction that shapes common law “is more important than uniformity” among American jurisdictions).” Coyle by Coyle v. Richardson-Merrel, “Even where this Court has ‘adopted’ a section of the Restatement as the inc., 526 Pa. 208, 212 (Pa. 1991). law of Pennsylvania, the language is not to be considered controlling in the manner of a statute. Such precepts, though they may govern large numbers of cases, are nothing other than common law pronouncements by the courts; their validity depends solely on the reasoning that supports them.” Rhode Island Schock v. United States, 56 F. Supp. 2d “The Rhode Island Supreme Court would look to the Restatement, but it 185, 193 (D.R.I. 1999). would not adopt the illogical rule reported by Comment C that Schock quotes. The Restatement is not precedent. A sentence in a Comment published in 1958 does not bind this Court in the fashion of a similar sentence from the First Circuit or Rhode Island Supreme Court. Instead, learned treatises are weighed along with Rhode Island court decisions, persuasive opinions by other state courts, and the public policy considerations identified in state decisional law.” South Todd v. S.C. Farm Bureau Mut. Ins. “Neither the trial court nor this Court is at liberty to substitute its Carolina Co., 283 S.C. 155, 168, 321 S.E.2d subjective and provincial sensibilities regarding what is reprehensible and 602, 610 (Ct. App. 1984), writ granted socially intolerable conduct for the guidelines which our Supreme Court in part, 285 S.C. 84, 328 S.E.2d 479 has established with its adoption of the Restatement formulation of the (1985), and decision quashed, 287 S.C. tort.” 190, 336 S.E.2d 472 (1985) “While we do not intimate that every case falls neatly within a simple equation, we have discerned certain limitations established by the Restatement and cases interpreting it which we feel compelled to recognize.”

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South Dakota Chem-Age Industries, Inc. v. Glover, “Of course, the Restatement’s pronouncements are not binding on this 652 N.W.2d 756, 770 (S.D. 2002). Court; nevertheless, we have found its reasoning persuasive in many instances.” Sapienza v. Liberty Mut. Fire Ins. Co., “Although there is no South Dakota precedent on an insurer's liability for 389 F. Supp. 3d 648, 653 (D.S.D. providing an inadequate defense, there is a draft of 2019) (quoting Chem-Age Indus., Inc. the Restatement addressing this issue. Because the v. Glover, 652 N.W.2d 756, 770 (S.D. draft Restatement follows the well-reasoned majority rule and because 2002)). the Supreme Court of South Dakota has found the Restatements ‘persuasive in many instances,’ this Court predicts that the Supreme Court of South Dakota would adopt the Restatement's position on insurer liability for an improper defense.” Tennessee Innerimages, Inc. v. Newman, 579 “In the absence of a controlling statute or guidance from the Supreme S.W.3d 29, 46 (Tenn. Ct. App. 2019) Court, this Court has the authority to adopt provisions of a Restatement in order to further the development of the common law in this state.”

Texas Gutierrez v. Collins, 583 S.W.2d 312, “Having considered all of the theories, it is the holding of this court that 318 (Tex. 1979). in the future all conflicts cases sounding in tort will be governed by the ‘most significant relationship’ test as enunciated in Sections 6 and 145 of the Restatement (Second) of Conflicts. This methodology offers a rational yet flexible approach to conflicts problems. It offers the courts some guidelines without being too vague or too restrictive. It represents a collection of the best thinking on this subject and does indeed include ‘most of the substance’ of all the modern theories.” Utah C.R. England v. Swift Transportation “Because Bunnell was decided in 1962—twenty-three years after the Co., 2019 UT 8, ¶ 18, 437 P.3d 343, first Restatement was published and seventeen years before the 347 (quoting Bunnell v. Bills, 13 Utah second Restatement was published, the first and second Restatements act 2d 83, 368 P.2d 597, 602 (1962)). as helpful bookends in our survey of the ‘generally recognized [law] in a majority of jurisdictions’ at the time. Accordingly, we look to the Restatements of Torts, and cases in other jurisdictions that have interpreted the Restatements’ language, as persuasive authority.”

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Coburn v. Whitaker Constr. Co., 2019 “Finally, Ms. Coburn argues that we should abandon the rule from UT 24, ¶ 15, 445 P.3d 446, 451. the Restatement (Second) because the rule in the Restatement (Third) is different. But she does not explain how or why any change in the Restatement (Third) would affect the continuing viability of Hale. The fact that the Restatement may have changed over time does not necessarily mean that an opinion adopting an earlier-in-time rule needs to be overturned. It is still incumbent upon Ms. Coburn to explain why that change necessitates the overturning of our precedent—an explanation she omits here.” Grundberg v. Upjohn Co., 813 P.2d “The restatement serves an appropriate advisory role to courts in 89, 95 (Utah 1991). approaching unsettled areas of law. We emphasize, however, that section 402A of the Restatement (Second) of Torts, as drafted in 1965, is not binding on our decision in this case except insofar as we explicitly adopt its various doctrinal principles.” Vermont Jenkins v. Miller, 983 F. Supp. 2d 423, “To be sure, as this Court has acknowledged, Vermont courts are not 451 (D. Vt. 2013) (citing Schuppin v. bound to follow the Restatements. In this case however, section Unification Church, 435 F.Supp. 603, 700 merely tracks existing Vermont law.” 609 (D.Vt. 1977); Fromson v. State, 2004 VT 29, ¶ 25, 176 Vt. 395, 848 A.2d 344, 351 (declining to adopt a cause of action for prima facie tort as set forth in Restatement (Second) of Torts § 870 under the circumstances of that case)). Virginia Automotion, Inc. v. Gregory, 46 Va. Stating that the Restatement is persuasive but not binding. Cir 509, 509 (Va. Cir. Norfolk 1996) Washington FutureSelect Portfolio Mgmt., Inc. v. “Even though no Washington court has formally adopted section 148 [of Tremont Grp. Holdings, Inc., 175 the Restatement (Second) of Conflict of Laws], we may still refer to that Wash. App. 840, 859, 309 P.3d 555, provision for guidance.” 564 (2013), aff'd, 180 Wash. 2d 954,

14 Updated 10/30/2019 State Citation Note

331 P.3d 29 (2014), and aff'd, 190 Wash. 2d 281, 413 P.3d 1 (2018). West Virginia Havalunch, Inc. v. Mazza, 170 W. Va. “We have never had a case directly on this point in West Virginia, and 268, 272–73, 294 S.E.2d 70, 75 (1981). while there are numerous old West Virginia defamation cases from which we could draw by loose analogy, the issue is sufficiently unique that the better course is to adopt the majority rule on this discrete subject as it has been articulated elsewhere in the American law. A good point of entry is the Restatement (Second) of Torts, § 566 (1977) . . . .” Wisconsin Habush v. Cannon, No. 2011AP1769, Referring to “opinions from federal courts, from other state courts, or 2012 WL 2345137, at *5 (Wis. Ct. from such authorities as the RESTATEMENT” as persuasive authorities. App. June 21, 2012) (unpublished).

State v. Eugenio, 210 Wis. 2d 347, “The official comment which accompanies a source of authority is not 352, 565 N.W.2d 798, 801 (Ct. App. automatically law; it is ‘persuasive authority.’ See Paulson v. Olson 1997), aff'd, 219 Wis. 2d 391, 579 Implement Co., Inc., 107 Wis.2d 510, 523-24, 319 N.W.2d 855, 861-62 N.W.2d 642 (1998). (1982). When the supreme court has determined that a principle in a comment should become law, it has formally adopted it. . . . Thus, based on the supreme court's historical practice of treating the commentary that often accompanies legal authority as a separate source, we conclude that the comments accompanying Standard 3.1(c) are not authority because the Simmons court did not adopt them.” Wyoming Lee v. LPP Mortg. Ltd., 2003 WY 92, “Having found that no duty of disclosure will arise under § 551, we ¶ 33, 74 P.3d 152, 163–64 (Wyo. decline the invitation to adopt § 551 at this time. However, as noted by 2003). this court previously, a majority of jurisdictions have either accepted § 551 or cited it with approval. Richey, 904 P.2d at 802–03 and n. 3 (collecting cases). We are not suggesting that we reject § 551 and refuse to adopt it. However, because § 551 affects legal duties, we would prefer to fully consider its adoption when the parties have presented thorough argument on the subject and a duty of disclosure would actually exist under the restatement.”

15 Updated 10/30/2019 Federal Circuits & U.S. Supreme Court

Federal Citation Note Court 1st Circuit Neelon v. Krueger, No. 12-CV-11198- “For issues of tort, Massachusetts does not ‘tie ... conflicts law to any IT, 2015 WL 4576825, at *2 (D. Mass. specific choice-of-law doctrine, but seek[s] instead a functional choice- July 30, 2015) of-law approach that responds to the interests of the parties, the States involved, and the interstate system as a whole.’ The Massachusetts Supreme Judicial Court (“the Supreme Judicial Court”) has held, however, that the Restatement (Second) of Conflicts of Laws (1971) (“the Restatement”) is an ‘obvious source of guidance’ for choice-of-law questions.” Dupuis v. Fed. Home Loan Mortg. “Under both federal common law and Maine law, the Restatement Corp., 879 F. Supp. 139, 142 (D. Me. (Second) of Agency provides the governing principles because both the 1995) federal courts and the Maine Law Court regularly rely on the Restatements where, as here, no applicable precedents exist.” 2nd Circuit In re Fosamax Prod. Liab. Litig., 742 “It must be remembered that a restatement is neither a statute nor a F. Supp. 2d 460, 472 (S.D.N.Y. 2010). development of legislative code, but rather one organization's summary or opinion of certain principles of law. Courts are free to adopt certain sections as the law of their state and reject others. As a federal court sitting in diversity, the Court is hesitant to stitch into decades of Florida tort law one section of a treatise that its courts have shown no apparent interest in adopting over the past twelve years.” O'Shanter Res., Inc. v. Niagara “‘The Restatement . . . is not the substantive law of New York and Mohawk Power Corp., 915 F. Supp. creates no rights not already incorporated by New York statutory and 560, 566 (W.D.N.Y. 1996) (quoting common law.’” Encogen Four Partners v. Niagara Mohawk Power Corporation, 914 F.Supp. 57, 62 (S.D.N.Y. 1996)). 3rd Circuit Wallach v. Eaton Corp., 837 F.3d 356, “The Restatement eliminates the risk of courts reaching inconsistent 368 (3d Cir. 2016) conclusions about the consensus of state law, supplants the need for a would-be assignor or assignee to conduct her own fifty-state survey before assigning an antitrust claim to ensure it will be enforceable in

16 Updated 10/30/2019 federal court, and sets a baseline from which litigants may operate when challenging or defending the validity of such an assignment. . . In sum, we agree with Appellants that the Restatement carries persuasive force in defining our federal common law, but we also caution that it serves only as a starting point.” 4th Circuit 5th Circuit Dupuis v. Fed. Home Loan Mortg. “[B]oth the federal courts and the Maine Law Court regularly rely on Corp., 879 F. Supp. 139, 142 (D. Me. the Restatements where, as here, no applicable precedents exist.” 1995) (citing United States v. Gil, 657 F.2d 712, 715 (5th Cir. 1981); Bonk v. McPherson, 605 A.2d 74, 78 (Me. 1992)). Rhynes v. Branick Mfg. Corp., 629 F.2d “We have no assurance whatever that Texas would adopt the product line 409, 410 (5th Cir. 1980). rule of liability. That rule represents at least a radical extension of Texas theory, at most a shift to a new and additional basis for liability. Neither action is appropriate for us. Whatever the merits or demerits of the proposed new rule, for us to adopt it for Texas would be presumptuous. We decline to do so.” 6th Circuit Freeman v. Blue Ridge Paper Prod., Predicting North Carolina law and refusing to adopt section of Inc., 529 F. App'x 719, 728 (6th Cir. Restatement (Second) of Torts where the plaintiff offered 2013). no authority suggesting North Carolina would adopt it.

Beau Townsend Ford Lincoln, Inc. v. “[W]e may look to an applicable Restatement (here, the Restatement of Don Hinds Ford, Inc., 759 F. App'x Contracts) for guidance ‘when there is no controlling state law on point 348, 353 (6th Cir. 2018) (quoting when the state has indicated ... that it considers the Restatements to be Garrison v. Jervis B. Webb Co., 583 persuasive authority.’” F.2d 258, 262 n.6 (6th Cir. 1978)). 7th Circuit Ormond v. Anthem, Inc., No. 1:05-CV- “It is one thing for the court to assume from the Ohio Supreme Court's 1908-DFH-TAB, 2008 WL 906157, at decision to adopt some sections of the Restatement of Conflict of Laws *18 (S.D. Ind. Mar. 31, 2008). that it intended to adopt the entire Restatement. It is a much bigger leap to assume that the Ohio court's decision to adopt some sections of the Restatement amounted to a delegation to the American Law Institute of the authority to craft Ohio's conflicts of law jurisprudence through

17 Updated 10/30/2019 future revisions of the Restatement. The court is unwilling to make that leap.” 8th Circuit Boswell v. Panera Bread Co., 879 F.3d “Missouri routinely finds the Restatement (Second) of 296, 303 (8th Cir. 2018) (citing State Contracts persuasive. See, e.g., ex rel. Vincent v. Schneider, 194 S.W.3d 853, 858–59 (Mo. 2006) (en banc)). Hill v. MCI WorldCom Commc'ns, Inc., “Though the Restatement rejects the exception, see Restatement 141 F. Supp. 2d 1205, 1212 (S.D. Iowa (Second) of Torts § 652D cmt. (“[I]t is not an invasion of the right to 2001). privacy ... to communicate a fact ... to a single person, or even to a small group of persons.”), Iowa courts are obviously not bound to follow it. . . Iowa has adopted the Restatement 's privacy tort principles . . . but principles are flexible guides to aid in the resolution of cases.”

9th Circuit McKay v. Rockwell Int'l Corp., 704 “Section 402A is not a federal statute. It should be applied only when the F.2d 444, 447 (9th Cir. 1983). purposes it seeks to serve dictate its application. When that is not the case it has no independent force. To apply it merely because it is there is to abdicate judicial responsibility.”

In re Breast Cancer Prevention Fund, “Washington courts look to the Restatement of Trusts as persuasive 574 B.R. 193, 216 (Bankr. W.D. Wash. authority.” 2017). W. Radio Servs. Co., Inc. v. Allen, 147 “Federal and Oregon courts refer to the Restatement of Torts when F. Supp. 3d 1132, 1144 (D. Or. 2015), considering a claim.” aff'd, 716 F. App'x 660 (9th Cir. 2018).

18 Updated 10/30/2019 10th Circuit Pena v. Greffet, 110 F. Supp. 3d 1103, Refusing to follow Restatement (Third) of Agency rule over New 1138 (D.N.M. 2015). Mexico case law adopting and applying the Restatement (Second) of Agency rule and explaining rationale for sticking to the old rule. 11th Circuit Roach v. M/V Aqua Grace, 857 F.2d “This Court does not have the power to abandon controlling Supreme 1575, 1583 (11th Cir. 1988) Court precedent in favor of the Restatement.” D.C. Circuit Tel-Oren v. Libyan Arab Republic, 726 Looking for guidance to the RESTATEMENT OF THE LAW OF F.2d 774, 781 (D.C. Cir. 1984). FOREIGN RELATIONS (REVISED) § 702 (Tent. Draft No. 3, 1982) and characterizing the Restatement as commentary “defining the limits of section 1350 [jurisdiction].” Federal Circuit U.S. Supreme Kansas v. Nebraska, 135 S. Ct. 1042, “I write separately to note that modern Restatements—such as the Court 1064 (2015) (Scalia, J., concurring in Restatement (Third) of Restitution and (2010), which part and dissenting in part). both opinions address in their discussions of the disgorgement remedy— are of questionable value, and must be used with caution. The object of the original Restatements was “to present an orderly statement of the general common law.” Restatement of Conflict of Laws, Introduction, p. viii (1934). Over time, the Restatements' authors have abandoned the mission of describing the law, and have chosen instead to set forth their aspirations for what the law ought to be. Keyes, The Restatement (Second): Its Misleading Quality and a Proposal for Its Amelioration, 13 Pepp. L.Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of Restitution and Unjust Enrichment is illustrative; as Justice THOMAS notes, post, at 1068 (opinion concurring in part and dissenting in part), it constitutes a “‘novel extension’” of the law that finds little if any support in case law. Restatement sections such as that should be given no weight whatever as to the current state of the law, and no more weight regarding what the law ought to be than the recommendations of any respected lawyer or scholar. And it cannot safely be assumed, without further inquiry, that a Restatement provision describes rather than revises current law.” Montana v. United States, 440 U.S. “I join the Court's opinion on the customary understanding that its 147, 164, 99 S. Ct. 970, 979, 59 L. Ed. references to law review articles and drafts or finally adopted versions of

19 Updated 10/30/2019 2d 210 (1979) (Rehnquist, J. the Restatement of Judgments are not intended to bind the Court to the Concurring). views expressed therein on issues not presented by the facts of this case.”

20 Updated 10/30/2019