Restatement of Torts
The American Restatement (Second) of Torts, and Restatement (Third) of Torts, are authoritative, highly influential treatises issued by the American Law Institute. They summarize the general principles of tort law established by the common law of the United States of America (i.e., the courts of the individual states as opposed to the federal courts; there is no federal common law in the USA). The “one-bite rule,” the doctrine of negligence, and other principles of dog bite law are found in the Restatement of Torts. Without reading the following provisions of the Restatement of Torts, one cannot have a working knowledge of dog bite law.
Restatement (Second) of Torts § 12:
“(1) The words ‘reason to know’ are used throughout the Restatement of this subject to denote the fact that the actor has information from which a person of reasonable intelligence or of the superior intelligence of the actor would infer that the fact in question exists, or that such person would govern his conduct upon the assumption that such fact exists.
“(2) The words ‘should know’ are used throughout the Restatement of this Subject to denote the fact that a person of reasonable prudence and intelligence or of the superior intelligence of the actor would ascertain the fact in question in the performance of his duty to another, or would govern his conduct upon the assumption that such fact exists.”
Restatement (Second) of Torts, section 290:
“For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know … the qualities and habits of human beings and animals …. ”
Restatement (Second) of Torts, section 290, illustration (g):
“A reasonable man is required to have such knowledge of the habits of animals as is customary in his community. Thus, he should know that certain objects are likely to frighten horses and that frightened horses are likely to run away. He should know that cattle, sheep, and horses are likely to get into all kinds of danger unless guarded by a human being, that bulls and stallions are prone to attack human beings and that even a gentle bitch, nursing her pups, is likely to bite if disturbed by strangers.”
Restatement (Second) of Torts, section 296:
“(1) In determining whether conduct is negligent toward another, the fact that the actor is confronted with a sudden emergency which requires rapid decision is a factor in determining the reasonable character of his choice of action.
“(2) The fact that the actor is not negligent after the emergency has arisen does not preclude his liability for his tortious conduct which had produced the emergency.”
Restatement (Second) of Torts, section 302, comment (a):
“In general, anyone who does an affirmative act is under a duty to others to exercise the care of a reasonable man to protect them against an unreasonable risk of harm to them arising out of the act.”
Restatement (Second) of Torts, section 302:
“A negligent act or omission may be one which involves an unreasonable risk of harm to another through … the foreseeable action of … an animal ….”
Restatement (Second) of Torts, section 310:
“An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor
“(a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and
“(b) knows
“(i) that the statement is false, or
“(ii) that he has not the knowledge which he professes.”
Comment (a) to Section 310:
“The rule stated in this Section relates to misrepresentations which, though intended to mislead another, are not intended to cause him the physical harm, where, however, the actor should realize that the harm is likely to result from the action which his misrepresentation is likely to induce. His liability is based upon the unreasonable risk of physical harm which is involved in the misrepresentations, and not upon the fact that the misrepresentations are intended to mislead.”
Comment (c) to Section 310:
“A misrepresentation may be negligent not only toward a person whose conduct it is intended to influence but also toward all others whom the maker should recognize as likely to be imperiled by action taken in reliance upon his misrepresentation. Thus, as stated in § 388, one who, by actively concealing a defect, misrepresents the condition of a chattel which he furnishes to another for use is liable not only (1) to the person to whom he furnishes the chattel and who, in the belief that it is safe, is injured while using it in a way for which it appears safe, but also (2) to such others as the actor permits to use or share in the use of the chattel and, in addition, (3) to others in the vicinity of its expected use who are harmed in person or property by such use.”
Comment (d) to Section 310:
“The liability stated in this Section is not confined to those persons whose conduct the misrepresentation is intended to influence, or to harm received in the particular transaction which the misrepresentation was intended to induce. . . . [S]such a misrepresentation may make the maker liable to . . . persons who are likely to be in the neighborhood . . . .”
Restatement (Second) of Torts, section 311:
(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results
(a) to the other, or
(b) to such third persons as the actor should expect to be put in peril by the action taken.
(2) Such negligence may consist of failure to exercise reasonable care
(a) in ascertaining the accuracy of the information, or
(b) in the manner in which it is communicated.
Comment (b) to Section 311:
“The rule stated in this Section . . . extends to any person who, in the course of an activity which is in furtherance of his own interests, undertakes to give information to another, and knows or should realize that the safety of the person of others may depend upon the accuracy of the information.”
Comment (c) to Section 311:
“The rule stated in this Section may also apply where the information given is purely gratuitous, and entirely un-related to any interest of the actor, or any activity from which he derives any benefit. . . . Where, as under the rule stated in this Section, the harm which results is bodily harm to the person, or physical harm to the property of the one affected, there may be liability for the negligence even though the information is given gratuitously and the actor derives no benefit from giving it. . . . [T]he plaintiff would be fully justified in accepting the statement of one who purports to have special knowledge of the matter, or special reliability, even though the plaintiff knows that he is receiving gratuitous advice.”
Comment (d) to Section 311:
“Where the actor furnishes information upon which he knows or should realize that the security of others depends, he is required to exercise the care of a reasonable man under the circumstances to ascertain the facts, and the judgment of a reasonable man in determining whether, in the light of the discovered facts, the information is accurate. His negligence may consist of failure to make proper inspection or inquiry, or of failure after proper inquiry to recognize that the information given is not accurate.”
Comment (e) to Section 311:
“It is . . . not enough that the actor has correctly ascertained the facts on which his information is to be based and has exercised reasonable competence in judging the effect of such facts. He must also exercise reasonable care to bring to the understanding of the recipient of the information the knowledge which he has so acquired.”
Restatement (Second) of Torts, section 314A:
“(1) A common carrier is under a duty to its passengers to take reasonable action (a) to protect them against unreasonable risk of physical harm, and (b) to give them first aid after it knows or has reason to know that they are ill or injured, and to care for them until they can be cared for by others.
“(2) An innkeeper is under a similar duty to his guests.
“(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
“(4) One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.”
Restatement (Second) of Torts, section 315:
“There is no duty to so control the conduct of a third person as to prevent him from causing physical harm to another person unless
Restatement (Second) of Torts, section 321:
“(1) If the actor does an act, and subsequently realizes or should realize that it has created an unreasonable risk of causing physical harm to another, he is under a duty to exercise reasonable care to prevent the risk from taking effect.
“(2) The rule stated in Subsection (1) applies even though at the time of the act the actor has no reason to believe that it will involve such a risk.”
Restatement (Second) of Torts, section 322:
“If the actor knows or has reason to know that by his conduct, whether tortious or innocent, he has caused such bodily harm to another as to make him helpless and in danger of further harm, the actor is under a duty to exercise reasonable care to prevent such further harm.”
Restatement (Second) of Torts, section 323:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
“(a) his failure to exercise such care increases the risk of such harm, or
“(b) the harm is suffered because of the other’s reliance upon the undertaking.”
Restatement (Second) of Torts, section 324:
“One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge, or (b) the actor’s discontinuing his aid or protection, if by so doing he leaves the other in a worse position than when the actor took charge of him.”
Restatement (Second) of Torts, section 324A:
“One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to [perform] his undertaking, if
“(a) his failure to exercise reasonable care increases the risk of such harm, or
“(b) he has undertaken to perform a duty owed by the other to the third person, or
“(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.”
Restatement (Second) of Torts, section 390:
“One who supplies directly or through a third person a chattel for the use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience, or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them.”
Restatement (Second) of Torts, section 442(b)
“Where the negligent conduct of the actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through the intervention of another force does not relieve the actor of liability, except where the harm is intentionally caused by a third person and is not within the scope of the risk created by the actor’s conduct.”
Restatement (Second) of Torts, section 509:
“Except as stated in § 517, a possessor of a domestic animal which he has reason to know has dangerous propensities abnormal to its class, is subject to liability for harm caused thereby to others, except trespassers on his land, although he has exercised the utmost care to prevent it from doing the harm.”
Restatement of Torts (Second), section 515, subsection (1):
“A plaintiff is not barred from recovery by his failure to exercise reasonable care to observe the propinquity of a wild animal or an abnormally dangerous domestic animal or to avoid harm to his person, land or chattels threatened by it.”
Comments (a) and (b) to section 515:
“The possessor or harborer of the animal takes the risk of answering for any harm done by it while out of his control not only to the careful and competent but also to those whose care and competence is below the standard to be expected of the reasonable man. Therefore, a person harmed by such an animal which with or without fault of the owner gets out of his control is not barred from recovery because had he exercised ordinary vigilance, skill and competence he could have escaped injury.
“Since the strict liability of the possessor of an animal is not founded on his negligence, the ordinary contributory negligence of the plaintiff is not a defense to such an action. The reason is the policy of the law which places the full responsibility for preventing the harm upon the defendant. Thus where the plaintiff merely fails to exercise reasonable care to discover the presence of the animal, or to take precautions against the harm which may result from it, his recovery on the basis of strict liability is not barred.”
Restatement (Second) of Torts, section 516:
[A person is privileged to use a dog or other animal to protect his property] “to the same extent that he is privileged to use a mechanical protective device for those purposes.”
Comment (a) to section 516:
[The property owner] “maybe required to post warnings of the presence of a dog on his premises, particularly when the dog is of the character likely to inflict more than trivial harm.”
Comment (b) to section 516:
[A landowner could] “set a ferocious police dog” [on a burglar] “to terminate a burglar’s intrusion.”
Restatement (Second) of Torts, section 517:
The rules as to strict liability for dangerous animals do not apply when the possession of the animal is in pursuance of a duty imposed on the possessor as a public officer or employee or as a common carrier.
Restatement (Second) of Torts, section 518:
“Except for animal trespass, one who possesses or harbors a domestic animal that he does not know or have reason to know to be abnormally dangerous, is subject to liability for harm done by the animal if, but only if … he is negligent in failing to prevent the harm.”
Restatement (Second) of Torts, section 518, comment (g):
“In determining the care that the keeper of a not abnormally dangerous domestic animal is required to exercise to keep it under control, the characteristics that are normal to its class are decisive, and one who keeps the animal is required to know the characteristics.”
Restatement (Second) of Torts, section 518, comment (h):
“One who keeps a domestic animal that possesses only those dangerous propensities that are normal to its class is required to know its normal habits and tendencies. He is therefore required to realize that even ordinarily gentle animals are likely to be dangerous under particular circumstances and to exercise reasonable care to prevent foreseeable harm.”
Restatement (Second) of Torts, section 338:
“A possessor of land who is in immediate control of a force, and knows or has reason to know of the presence of trespassers in dangerous proximity to it, is subject to liability for physical harm thereby caused to them by his failure to exercise reasonable care (a) so to control the force as to prevent it from doing harm to them, or (b) to give a warning which is reasonably adequate to enable them to protect themselves.”
Restatement (Third) of Torts
Principles relating to dog bite cases are set forth in the Quizlet by Ben Mulligan.
Restatement (Second) of Torts regarding trespass:
Restatement (Second) of Torts, 330, p. 174, referring to a “license created otherwise than by words” is as follows:
“The well-established usages of a civilized and Christian community” entitle everyone to assume that the possessor of land is willing to permit him to enter for certain purposes until a particular possessor expresses unwillingness to admit him. Thus a traveler who is overtaken by a violent storm or who has lost his way, is entitled to assume that there is no objection to his going to a neighboring house for shelter or direction. . . .
Quoted in Hamby v. Haskins (Ark. 1982) 275 Ark. 385, 389.
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