ALI approves the "Restatement of the Law Third, Torts: Remedies"

 After seven years of work, the “Restatement of the Law Third, Torts: Remedies" has been approved.  As described by one of its reporters, 

Launched in 2019, the Torts: Remedies Restatement addresses the principles governing the relief available after liability is established in a tort action. Organized around categories of remedies and types of harm, the project provides guidance on the recovery and measurement of damages, restitution of a wrongdoer’s profits, injunctions against threatened or continuing torts, and other forms of specific relief. Damages topics covered include general rules for measuring compensatory, nominal, and punitive damages, and compensation for specific harms such as lost wages or lost profits, medical expenses, pain and suffering, emotional distress, and damage to property. 

Among other developments, the Restatement would eliminate reliance on race- and sex-based assumptions in calculating personal injury damages such as future lost earnings and medical expenses. It also proposes a rule to explain and rationalize the longstanding judicial practice of compensating dignitary harm whether or not there is any more direct evidence of damages.

....  The Restatement also addresses areas of disagreement among courts, including issues such as the measurement of damages in complex contexts and the standards governing punitive damages, while aiming to clarify doctrine and provide a more consistent analytical framework.

You can read the full announcement here. 

ALI adopts Restatement Third on Intentional torts to persons

Last week, at the ALI's Annual Meeting, the membership approved the Restatement (Third) of Torts:  Intentional Torts to Persons.  The ALI's press release is here.

Recent law review article compares cost-benefit analysis and consumer expectation as the tests for determining design defects

In his article An Essay on the Quieting of Products Liability Law, 105 Cornell Law Review 101 (2020), Aaron D Twerski, one of the reporters of the Restatement (Third) of Torts: Products Liability, compares the difference between the risk-utility test applied in most states (which relies on having the plaintiff prove a "reasonable alternative design (RAD)") and the consumer expectations test followed in 17 jurisdictions to determine if a product has a design defect.   He concludes that, regardless of the approach used, the vast majority of cases include proof of a RAD.

Twerski theorizes that using proof of a RAD: 1) tells “a far more compelling story” than consumer expectations; 2) relates to fault which, in turn, leads to higher damage awards; 3) may be needed as a substitute if a judge denies a “consumer expectations” instruction, and 4) supports the claim that a product disappoints consumer expectations.  

For a summary of the article go here.

Connecticut rejects Restatement 3d- Products Liability

In what some are calling the most important Connecticut tort-law decision in decades, last month the Connecticut Supreme Court declined to adopt the Restatement (Third)'s approach to product liability design-defect claims and “reaffirm[ed] its allegiance” to a “true strict liability” standard under §402A of the Restatement (Second).  The case is called Bifolck v. Philip Morris, Inc. (Deb 29, 2016).  The TortsProf Blog has more on the story here. Connecticut is thus the most recent of a number of states to have rejected the Restatement 3d's approach. 

Colorado Supreme Court has held that attorneys do not owe any duties to non-clients

The Colorado Supreme Court held attorneys owe no duties to non-clients, such as the beneficiaries of a will, absent allegations of fraud, a malicious or tortious act, like negligent misrepresentation.

You can read more about the decision here and here.

The ruling goes against the view expressed in the Restatement of the Law Governing Lawyers (Sec 51), followed in several states, which recognizes duties to third parties (non-clients) in several circumstances.

Florida Supreme Court rejects the Third Restatement's approach to design defects in product liability cases

I have to confess that I missed this important development when it happened back at the end of October but I am now finally getting to it, so better late than never, I guess.

In a case called Aubin v. Union Carbide Corp., 177 So.3d 489 (Fl 2015), the Florida Supreme Court rejected the Third Restatement’s formulation of design defects and, specifically, the notion that a product can’t be considered defective unless the plaintiff can show a reasonable alternative design.  The Court preferred to retain the approach of Restatement (Second).

In this case, even though the Court had adopted and applied the consumer expectation test in prior cases, the lower court adopted the Third Restatement’s formulation of the risk utility test as the legal standard for a design defect claim.  According to this standard, as the Court explained, “the plaintiff must demonstrate that the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Alternatively, the plaintiff could try to argue that the product design is “manifestly unreasonable,” which in turn would require the plaintiff to show that “the extremely high degree of danger posed by its use ... so substantially outweighs its negligible social utility that no rational, reasonable person, fully aware of the relevant facts, would choose to use ... the product.”

Citing a number of cases from other jurisdictions that also rejected the Restatement (Third), the Court then went on to reject the Restatement (Third), among other reasons because

(1) By introducing foreseeability of the risk to the manufacturer as part of the calculus for design defect and requiring proof of a “reasonable alternative design,” the Third Restatement reintroduces principles of negligence into strict liability.  For this reason, according to the Court, the Third Restatement is inconsistent with the rationale behind the adoption of strict products liability.

(2) Besides shifting the emphasis away from strict liability principles, the Third Restatement's risk utility test imposes a higher burden on consumers to prove a design defect than exists in negligence cases – the antithesis of adopting strict products liability in the first place – because the Third Restatement places upon the plaintiff an additional burdensome element of proof, requiring the injured consumer to step into the shoes of a manufacturer and prove that a reasonable alternative design was available to the manufacturer. 

(3) The Third Restatement, in some instances, could insulate a manufacturer from all liability for unreasonably dangerous products solely because a reasonable alternative design for that type of product may be unavailable even though “in some instances, a product may be in a defective condition unreasonably dangerous to the user even though no feasible alternative design is available.”

(4) Many states have expressed concerns about, or disapproved of, the Third Restatement, as it pertains to strict products liability.

(5) The requirement of a reasonable alternative design in the Third Restatement has been harshly criticized and has not become the rule in the majority of jurisdictions.  A majority of jurisdictions do not require a reasonable alternative design in product liability actions. 

(6) The Restatement is not a codification of law or necessarily the consensus on the best policy for courts regarding the proper legal standard for strict liability in products liability cases. In fact, while the Third Restatement was intended to restate the law as decided by state courts and state legislatures, various courts have criticized its discussion of strict products liability, emphasizing that it “goes beyond the law” because “[r]ather than simply taking a photograph of the law of the field,” the Third Restatement attempts to create a framework for strict products liability by urging the adoption of the reasonable alternative design standard and an exclusive risk/utility analysis, notwithstanding that the majority of jurisdictions in this country do not require a reasonable alternative design in strict products liability actions.

(7) The Third Restatement is contrary to Florida’s prior precedent. As explained by the Court, “[t]he important aspect of strict products liability that led to our adoption [of the Restatement (Second) in a precedent case] remains true today: the burden of compensating victims of unreasonably dangerous products [should be] placed on the manufacturers, who are most able to protect against the risk of harm, and not on the consumer injured by the product. Increasing the burden for injured consumers to prove their strict liability claims for unreasonably dangerous products that were placed into the stream of commerce is contrary to the policy reasons behind the adoption of strict liability. . .”

Pennsylvania Supreme Court rejects Restatement Third of Products Liability

About three weeks ago, the Pennsylvania Supreme Court issued an important opinion in which it rejected adopting the language of the Restatement Third on Products Liability.  The court decided to retain its analysis based on the principles and case law on Section 402A of the Restatement Second instead.  This includes the choice of arguing/proving a design defect based on a consumer expectations analysis or a cost-benefits analysis.   You can read the opinion here and the concurring opinion here.  (Thanks to the TortsProf blog for the links.)

Max Kennerly, of Litigation and Trial, has a nice comment on the opinion here, and he provides links to shorter comments here, here and here.

Illinois Supreme Court declines to adopt post-sale duty to warn

About three weeks ago, the Illinois Supreme Court issued an interesting opinion in which it declined to adopt section 10 of the Restatement (Third) of Torts: Products Liability (1998), which recognizes a duty to warn of a product-related risk after the time of sale under certain circumstances. The case is called Jablonski v. Ford Motor Co. and it is available here.

The case involved an accident in which a driver slammed into the back the Jablonskis’ Ford Town Car. As a result of the crash, a large pipe wrench in the trunk of the Town Car penetrated the trunk and punctured the back of the vehicle’s fuel tank causing the car to burst into flames. The plaintiff’s husband’s died and the plaintiff suffered severe burns and permanent disfigurement.

The plaintiffs filed a complaint arguing a number of different claims against Ford which, as the court put it, “continually evolved” during the litigation. Eventually, the plaintiffs abandoned a number of strict liability claims but continued to argue that the Town Car was negligently designed and manufactured and that Ford had a duty to warn customers of the danger of the risk of trunk contents puncturing the fuel tank, which Ford learned about some time after the plaintiffs bought the car.

As to the post-sale duty to warn issue, the court found that the jury was improperly instructed that the jury could find Ford negligent for its failure to warn because that is not the law in this jurisdiction. Even though the law recognizes a “continuing duty to warn,” that duty exists only if the risk is known at the time of the sale. When a design defect is present at the time of sale, the manufacturer has a duty to take reasonable steps to warn at least the purchaser of the risk as soon as the manufacturer learns or should have learned of the risk created by its fault. However, “a manufacturer is under no duty to issue post-sale warnings or to retrofit its products to remedy defects first discoveredafter a product has left its control.”

In sum, the court found that the lower court erred in providing a jury instruction based on a duty not recognized in Illinois at the time of trial.

Because the instruction was based on section 10 ofthe Restatement (Third) of Torts: Products Liability (1998), which recognizes a post-sale duty to warn under certain circumstances, the court then addressed whether it should recognize such a duty. It declined to do so, but left the door open to consider it again in the future:

“Although we do not foreclose the possibility that a post-sale duty to warn could be recognized in the future in Illinois, we decline the invitation to expand the duty in this case under the particular facts and circumstances presented here . . . [because] there was insufficient evidence presented to the jury with regard to the enumerated circumstances under which a reasonable person would provide a warning under section 10.”

Pennsylvania eliminates joint and several liability

Bad news for victims of injuries in Pennsylvania.  Gov. Tom Corbett today signed the ”Fair Share Act,”  which does away with joint and several liability.  Tort reform groups are celebrating the announcement as a "major legislative victory."  Unfortunately, what it is, is a shift from a system that erred on the side of protecting injured victims to one that errs on the side of those who injure them.  Both approaches are problematic, and the better option - a compromise through which both sides share part of the loss - was not even considered. 

This is not a major victory for anyone; it is a major disappointment that advances a flawed and, quite simply, bad public policy. 

For those who don’t remember, joint and several liability is a doctrine that allows a plaintiff to choose which defendant will be responsible for paying the value of the injuries. In many jurisdictions that follow this doctrine, it applies regardless of the level of negligence of any individual defendant. This is not the case in every jurisdiction, but let’s leave that aside for the moment - more on that later.

The main argument upon which the attack on joint and several liability is based is that it is unfair to impose liability for the full amount of the injury on a defendant who "does not cause all of the injury" or, as it is often stated, that a defendant can be made to pay 100 percent of a jury award even if he is only 1 percent liable for the injury suffered by a plaintiff.

The problem is that this argument is based on a fallacy.

The origin of the argument is usually that courts can ask jurors to assign a percentage of negligence on all tortfeasors relative to each other. The problem is that when doing this the jury is not asked to find a level of "liability." Thus stating that a defendant found to be "1 per cent liable" is simply misunderstanding what a jury does. A jury may find that one defendant was more negligent than another, but that does not mean the jury is finding any one of them should be more liable than any other.

Opponents of joint and several liability argue, however, that liability should be apportined according to the level of negligence assigned by the jury.  Say, for example, that the jury finds that one defendant was 75% negligent while the other one was 25%. In a jurisdiction that follows joint and several liability, the plaintiff can recover 100% of the value of the injury from either defendant and the defendant who was found to be less negligent typically argues this is unfair.

One problem with this argument is that the defendant who has to pay has the right to make the other defendant pay him whatever amount he paid in excess of his level of negligence.  So, if the system is unfair at all, it is only unfair if the other tortfeasor is not available to pay (either because it is unavailable, was never identified or has no money to pay). If that tortfeasor is available/has money, then after all is said and done everyone pays what they owe according to the percentages of negligence.

Now even assuming that the other tortfeasor is not available, here is the other problem with the argument. The percentage numbers are an expression of the level of negligence each defendant was found to be relative to each other. They do not refer to, or express, how much of the injury each defendant caused. By definition if we could determine what part of the injury each defendant caused, the liability of that defendant would be limited to that part of the injury because it would be contrary to the law to impose liability for something the defendant did not cause.

Joint and several liability, again, by definition, applies in cases where the injury is indivisible - when it can’t be determined which part of the injury was caused by any one defendant individually. The injury (all of it) was caused by the combination of the negligence of each defendant. Thus, each defendant caused all of it. The fact that one defendant was less negligent than the other does not eliminate the fact that all defendants caused all of the injury because we just can’t tell what part of the injury was caused by any individual defendant.

Given this, jurisdictions have to decide between two options: in the first option a defendant who caused an injury but who was less negligent the another one may end up paying more than the other defendant.  This may seem unfair to the defendant who pays but it assures that the victim obtains a full recovery.  In the second option, the victim does not get a full recovery while a defendant who caused the injury is relieved from paying for part of the injury they casused.  Pennsylvania has abandoned the first option in favor of the second one.

Although joint and several liability (the first option) is prefereable to several liability (the second one), neither option is the best. 

There are two other possible options that are better.
One alternative is to adopt a threshold before which joint and several liability does not apply. That threshold would be, by force, arbitrary, but at least there would be a threshold. Illinois, for example, sets the threshold at 25%. A defendant whose level of negligence is below that is only liable for an amount equivalent to their percent of negligence. If the level of negligence is above that, then the defendant is joint and severally liable and can, in fact, end up paying for the full amount.

If the concern is to protect defendants who were "not very negligent" when compared to the others involved in the claim, this is not a bad compromise. The important question becomes where to place the threshold. This alternative is suggested in the Restament of Torts.

Another, alternative that is definitely more fair than simply eliminating joint and several liability and that still protects the interests of defendants from having to pay the full amount when other tortfeasors can’t contribute is to adopt a system that reapportions the amount that those unavailable defendants should have paid among all available tortfeasors. The Restatement of torts considers this the most appealing alternative because it apportions the risk of insolvency to all the remaining parties in proportion to their level of negligence, thus providing an equitable mechanism for dealing with the problem. 

Now, THAT is fair.  But, of course, not surprisingly tort reformers have no interest in this...  That’s because the goal of the tort reformer is not to find a fair system but a system that provides the most protection possible to tortfeasors. The battle lines are drawn and the only alternatives mentioned are the ends of the spectrum. If those are the only alternatives, the question to ask is whether it is more fair to err on the side of the injured person or on the side of those who actually caused the injury.

If those are the only alternatives, the answer is easy: err on the side of the victim. It would be better, though, to consider the alternatives available as a compromise.

The PopTort has its own comment on this here.

Pennsylvania legislature to vote on bill that eliminates joint and several liability

Last month I reported on a new bill under review in Pennsylvania to eliminate joint and several liability as the system for apportioning liability in the state. I posted my critique of the bill here. The Torts Prof blog is now reporting (here) that the bill is up for a vote today. I will update the story tomorrow with the result. You can read a copy of the bill itself by going here.

Pennsylvania bill seeks to eliminate joint and several liability

Bad news for victims of injuries in Pennsylvania. A story in the Pittsburgh Post Gazette states that a new bill seeks to eliminate joint and several liability as the system for apportioning liability in the state. This is not news in and of itself since joint and several liability is a common target of tort reformers and the arguments for the attack are, of course, the same old/usual ones. For those who don’t remember, joint and several liability is a doctrine that allows a plaintiff to choose which defendant will be responsible for paying the value of the injuries. In many jurisdictions that follow this doctrine, it applies regardless of the level of negligence of any individual defendant. This is not the case in every jurisdiction, but let’s leave that aside for the moment - more on that later. The main argument upon which the attack on joint and several liability is based is that it is unfair to impose liability for the full amount of the injury on a defendant who "does not cause all of the injury." A recent article argued this by saying that a defendant found to be "1 percent liable in a lawsuit could potentially be held responsible for 100 percent of the financial verdict." The problem is that this argument is based on a fallacy. The origin of the argument is usually that courts can ask jurors to assign a percentage of negligence on all tortfeasors relative to each other. The problem is that when doing this the jury is not asked to find a level of "liability." Thus stating that a defendant found to be "1 per cent liable" is simply misunderstanding what a jury does. A jury may find that one defendant was more negligent than another, but that does not mean the jury is finding any one of them should be more liable than any other. Opponents of joint and several liability argue, however, that liability should be apportined according to the level of negligence assigned by the jury. Say, for example, that the jury finds that one defendant was 75% negligent while the other one was 25%. In a jurisdiction that follows joint and several liability, the plaintiff can recover 100% of the value of the injury from either defendant and the defendant who was found to be less negligent typically argues this is unfair. Here is the problem with the argument. The percentage numbers are an expression of the level of negligence each defendant was found to be relative each other. They do not refer to, or express, how much of the injury each defendant caused. By definition if we could determine what part of the injury each defendant caused, the liability of that defendant would be limited to that because it would be contrary to the law to impose liability for something the defendant did not cause. Joint and several liability, again, by definition, applies in cases where the injury is indivisible - when it can’t be determined which part of the injury was caused by any one defendant individually. The injury (all of it) was caused by the combination of the negligence of each defendant. Thus, each defendant caused all of it. The fact that one defendant was less negligent than the other does not eliminate the fact that we just can’t tell what part of the injury was caused by either one. That aside, because I am a reasonable man, I am willing to compromise (unlike most tort reformers). So, let’s consider some other options. Simply eliminating joint and several liability is not the only option. Let’s say for the sake of argument that it is unfair for a defendant who is found to be negligent at a very low level to have to pay the full amount of the injury. The first thing to note is that this is only unfair if the other tortfeasor is not available to pay (either because it is unavailable, was never identified or has no money to pay). If that tortfeasor is available/has money, then after all is said and done everyone pays what they owe according to the percentages of negligence. So what can be done to make it less unfair on the "low level negligent" defendant? One alternative is to adopt a threshold before which joint and several liability does not apply. That threshold would be, by force, arbitrary, but at least there would be a threshold. Illinois, for example, sets the threshold at 25%. A defendant whose level of negligence is below that is only liable for an amount equivalent to their percent of negligence. If the level of negligence is above that, then the defendant is joint and severally liable and can, in fact, end up paying for the full amount. If the concern is to protect defendants who were "not very negligent" when compared to the others involved in the claim, this is not a bad compromise. The important question becomes where to place the threshold. This alternative is suggested in the Restament of Torts. Another, alternative that is definitely more fair that simply eliminating joint and several liability and that still protects the interests of defendants from having to pay the full amount when other tortfeasors can’t contribute is to adopt a system that reapportions the amount that those unavailable defendants should have paid among all available tortfeasors. The Restatement of torts considers this the most appealing alternative because it apportions the risk of insolvency to all the remaining parties in proportion to their level of negligence, thus providing an equitable mechanism for dealing with the problem. Not surprisingly, at least according to the newspaper story, none of this is being discussed. That’s because the goal of the tort reformer is not to find a fair system but a system that provides the most protection possible to tortfeasors. The battle lines are drawn and the only alternatives mentioned are the ends of the spectrum. If those are the only alternatives, the question to ask is whether it is more fair to err on the side of the injured person or on the side of those who actually caused the injury. If those are the only alternatives, the answer is easy: err on the side of the victim. It may be better, though, to consider the alternatives available as a compromise.

Illinois Supreme Court to decide on manufacturer's post sale duty to warn

About three weeks ago, the Illinois Supreme Court heard oral arguments in a very interesting case that asks the court to decide whether to impose a post sale duty to warn as recognized in the Restaement of Torts (Third). The case is called Jablonski v. Ford Motor Company. The plaintiff in the case sued Ford after the 1993 Lincoln Town Car she and her husband were driving in was rear-ended. The collision forced a pipe wrench in their trunk through the walls of the fuel tank, causing a fire that killed her husband and left her severely burned. The 1993 Lincoln Town Car was one of four Ford vehicles, including one specifically designed for police, that was built with a fuel tank behind the rear axle. (I could be wrong about this, but I think that was the same design that caused problems for the infamous Pinto model.) In 2002, Ford contacted the owners of one of its models (one manufactured mostly, if not exclusively, for police departments) to notify them of the risk of fire, but Ford did not notify the owners of the other models. Those notifications informed owners of the availability of an upgrade kit, which consisted of shields designed to protect the fuel tank, as well as a drop-in trunk liner and a series of recommendations on how to pack things in the car's truck to avoid item puncturing the gas tank -- precisely what happened in the plaintiff's case. In her complaint against Ford, the plaintiff argued that the car manufacturer should be liable for failing to warn her when it knew of the risk and had warned owners of a different model car. The oral argument is worth watching. You can listen to the audio by going here or watch the video by going here.

Mass. Appeals Court adopts "apparent manufacturer" approach to products liability

A little over a week ago the Appeals Court of Massachusetts upheld a $3.35 million jury verdict against Otis Elevator Company for an injury to a four-year old boy caused by a defective escalator that bore Otis Elevator's name but that was in fact manufactured by an independent Chinese company, thus applying part of the "apparent manufacturer" doctrine from the Restatement (Third) of Torts: Product Liability. Other Massachusetts cases had previously applied the apparent manufacturer doctrine, but no reported Massachusetts case had previously applied the doctrine to a person or entity outside the distribution chain (i.e., a nonseller). The Court concluded that a nonseller trademark licensor who participates substantially in the design, manufacture, or distribution of the licensee's products may be held liable under Massachusetts law as an apparent manufacturer. You can read the case here: Lou v. Otis Elevator Co. Go to the Boston Personal Injury Lawyer blog for more information and links.

South Carolina Adopts the Risk-Utility Test as the Exclusive Test in Products Liability Design Cases

As you probably know, one of the most debated questions in product liabiity law is the proper standard to use to determine if a product is defective in its design. The Restatement 2d originally suggested a consumer expectations test while many jurisdictions adopted a risk-utility analysis. Many -probably most, at least until recently - jurisdictions recognized both. Then, the Restatement 3d adopted a different view which includes a requirement that the plaintiff show a reasonable alternative design, a new approach that a number of jurisdictions have rejected. About three weeks ago, the Supreme Court of South Carolina had a chance to clarify the state of the law on the subject and adopted the use of a risk utility analysis as the exclusive test to determine design defects. The case is called Branham v. Ford Motor Company and it is available here. For comments on it, go here and here. I don't have a major problem with adopting a risk-utility analysis but I do have a problem with the requirement that the plaintiff show a reasonable alternative design. It is an unecessary requirement, the only purpose of which is to make it more difficult for victims to be able to support their claims and it goes contrary to the goal of encouraging the design of safer products.

South Carolina rejects consumer expectations test in product defect cases

In an opinion filed on Monday, the South Carolina Supreme Court adopted the risk-utility test for design defect cases, rejecting use of a consumer expectations test. Under the risk-utility test, the court held that the plaintiff was required to present evidence of a reasonable alternative design that would have prevented the product from being unreasonably dangerous. What this means is that South Carolina has now become one of the few states to have adopted the views of the Restatement third on this issue. Thanks to the TortsProf blog for the information and link.

Thoughts on the concept of foreseeablity

Go here for a short comment by David Owen, (Professor of Law at University of South Carolina School of Law) on the concept of foreseeability.

Lead in lead paint is not a design defect according to Wisconsin Supreme Court

The Supreme Court of Wisconsin has affirmed the dismissal of several product liability claims against paint manufacturers for injuries cased by the lead content of their paint products. This is not a surprising result since the lead paint manufacturers had won most, if not all, other similar claims so far. Among other things, the Court held that given that removing the lead from the type of paint at issue "would transform it into a different product," the design of white lead carbonate pigment is not defective. Although definitely a victory for the defendants, there is a very important element of the decision that is helpful to plaintiffs in products liability cases. The Court reaffirms its rejection of the Restatement (Third) and makes absolutely clear that "Wisconsin strict products liability law does not require a plaintiff to prove the feasibility of an alternative design.” For more on this story go to Jonathan Turley's Blog, Law.com and the Drug and Device Law Blog.

More summaries and audio webcasts of the Wake Forest conference on the Restatement of Torts Third

Yesterday I posted a few links to summaries and audio webcasts of a Conference currently underway at Wake Forest University on the Third Restatement of Torts. Here are the links to today's sessions: Risk Creation and Foreseeability: audio ; summary by TortsProf Blog Intentional and strict liability torts: audio ; summary by TortsProfBlog Land possessor liability: audio ; summary by TortsProfBlog

Conference on the Third Restatement

Wake Forest Law School is currently conducting a conference on the Third Restatement of Torts. The TortsProf Blog is providing short summaries on the sessions and lots of links to articles and webcasts of the sessions. There is a lot of interesting stuff to look at and listen to there. Here are a few links: Duty in the Third Restatement: for a short written summary go here, for audio of the full session go here. Negligent infliction of emotional distress: short written summary, audio of full session. Causation in the Third Restatement: written summary, audio of full session Negligence in the Third Restatement: written summary, audio of full session Thanks to the TortsProf blog for the information and links.