The Supreme Court of Oregon recently adopted Restatement Third of Torts: Liability for Physical and Emotional Harm § 48 in Philibert v. Kluser, 385 P.3d 1038 (Or. 2016). In that case, two minor children brought a negligence action, through a guardian ad litem, against a pickup truck driver, alleging that they suffered severe emotional distress as a result of witnessing the death of their seven-year-old brother, who was run over by the pickup truck when the driver negligently drove through a crosswalk where the three children were walking. The trial court dismissed the action and the court of appeals affirmed, both relying on Oregon’s “impact” rule, which required a plaintiff seeking emotional-distress damages to show that he or she suffered some physical, as well as emotional, injury. Reversing the decision of the court of appeals and remanding to the trial court for further proceedings, the state supreme court abandoned the “impact” rule and instead adopted the bystander-recovery rule set forth in § 48 of the Restatement. The court noted that “the Restatement identifies Oregon as one of only four states that continue to apply the impact rule . . . . Indeed, the impact test has been disfavored for decades.” Section 48 was, the court stated, “[p]robably the most thoughtful recent formulation” of a test for bystander recovery and “best promotes principled outcomes while avoiding the prospect of imposing potentially unlimited liability on defendants for the emotional distress that their negligence may cause.” Applying § 48 to the facts of the case, the court held that the plaintiffs stated a negligence claim under an emotional-distress theory because they contemporaneously witnessed the violent death of a close family member—a death caused by the defendant’s negligence—and, as a result of that experience, the plaintiffs, aged eight and twelve at the time of the accident, both suffered severe emotional distress, depression, post-traumatic stress disorder, aggression, and severe anxiety.
The Supreme Court of New Jersey, in what it described as “a natural progression in our conversion from the governmental-interest test to the Second Restatement,” recently adopted Restatement Second of Conflict of Laws § 142 in McCarrell v. Hoffmann-La Roche, Inc., 2017 WL 344449 (Jan. 24, 2017). In that case, an Alabama resident who was prescribed and took the acne medication Accutane developed inflammatory bowel disease. As a result, he filed a products-liability action in New Jersey against the drug’s manufacturers—New Jersey corporations who “designed, manufactured, distributed, and labeled” the drug in New Jersey—alleging that his disease was a result of ingesting the drug and that he would not have taken the drug had its warning labels adequately informed him of its risks and dangers. The trial court applied New Jersey law and entered judgment on a jury verdict awarding the plaintiff damages. The court of appeals reversed and dismissed the plaintiff’s action on grounds that, based on the substantial-relationship test, Alabama law applied, and the action was therefore barred by Alabama’s statute of limitations. The state supreme court reversed the appellate court’s judgment and reinstated the jury verdict, adopting Restatement Second § 142 in holding that New Jersey’s statute of limitations, which unlike Alabama’s had an equitable-tolling feature, applied to this case. The court reasoned that, under § 142, “the statute of limitations of the forum state—here, New Jersey—applies if that state has a substantial interest in the maintenance of the claim and there are no ‘exceptional circumstances’ that ‘make such a result unreasonable,’” and, here, New Jersey had a “substantial interest in deterring its manufacturers from placing dangerous products in the stream of commerce.” The court stated, “We hold that section 142 of the Second Restatement is now the operative choice-of-law rule for resolving statute-of-limitations conflicts because it will channel judicial discretion and lead to more predictable and uniform results that are consistent with the just expectations of the parties.”
The Institute is currently working on other portions of the Restatement Third of Torts and on a Third Restatement of Conflict of Laws. Visit the projects page to learn more.