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 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.