The Third Restatement of Torts is a multi-volume treatise from the American Law Institute that pulls together modern civil liability doctrine, from products liability to negligence to intentional harms, into what works as the closest thing the United States has to a national framework for tort law. It is not a statute and not binding on its own. Courts across the country treat its provisions as authoritative, and many states have adopted large portions of it, but a section only carries legal force in a jurisdiction once a court or legislature there picks it up.
What It Is and Who Writes It
The American Law Institute is a private organization of judges, law professors, and practicing lawyers. Its Restatements are not legislation and no one votes them into effect. When the ALI publishes a Restatement, it is offering what it considers the best synthesis of existing case law, together with recommendations on how to resolve areas where the case law is unsettled or contradictory.
Work on the Third Restatement began in the 1990s and is still ongoing. The project now spans seven volumes: products liability; liability for physical and emotional harm; apportionment of liability; liability for economic harm; intentional torts to persons; medical malpractice; and a miscellaneous provisions volume covering vicarious liability, wrongful death, and survival actions. The Medical Malpractice volume was approved at ALI’s 2024 annual meeting. The Miscellaneous Provisions volume was approved in May 2025. The Intentional Torts volume was approved by ALI membership in 2021 and is being prepared for publication.
How Courts Actually Use It
A Restatement provision only becomes binding law in a given jurisdiction when a court in that jurisdiction adopts it, or when a legislature folds it into a statute. Nothing happens automatically when the ALI publishes a volume. A state can ignore a section, adopt it, or modify it.
In practice, courts give the Restatement far more weight than a typical law review article or legal treatise. Judges routinely cite Restatement sections as the basis for their holdings, and in many states whole areas of tort doctrine track the Restatement almost word for word. Adoption is uneven. Some states have taken specific volumes wholesale. Others pick and choose, following the Restatement’s approach to design defects while rejecting its position on land possessor liability, for example. That selectivity is part of why the Restatement works as a reference point even where it does not control: lawyers and judges start from its text and then argue about whether their state has signed on to that particular section.
What the Volumes Cover
The Products Liability volume, completed in 1997, was the first piece published. It holds commercial sellers and distributors responsible when a product reaches the public in a defective condition and sorts defects into three categories: manufacturing defects, design defects, and inadequate warnings or instructions.
The Liability for Physical and Emotional Harm volume is the largest, published in two installments with the final portions appearing in 2012. It covers the core of negligence law: duty, breach, factual cause, scope of liability, strict liability for abnormally dangerous activities, and recovery for emotional harm. It also contains the Restatement’s treatment of land possessor liability.
The Apportionment of Liability volume handles how fault gets divided when more than one person contributes to an injury, including the move from contributory negligence to comparative responsibility and the shifting rules around joint and several liability.
The Liability for Economic Harm volume governs claims for purely monetary losses, including professional negligence, negligent misrepresentation, and tortious interference, and sets out the economic loss rule that keeps most contract disputes out of tort.
The Intentional Torts to Persons volume covers deliberate harms, principally battery, assault, and false imprisonment, along with privileges like self-defense and defense of property.
The Medical Malpractice volume covers the standard of reasonable medical care, how expert testimony establishes a breach, informed consent, institutional liability, and the lost-chance doctrine, which allows patients to recover when a provider’s negligence reduced their odds of a better outcome even if the patient cannot prove the negligence was the sole cause of harm.
The Miscellaneous Provisions volume covers vicarious liability, wrongful death, and survival actions. On vicarious liability it provides a multi-factor test for distinguishing employees from independent contractors, looking at control over the work, whose tools are used, how the worker is paid, and whether the work is part of the employer’s regular business.
The Biggest Doctrinal Shifts from the Second Restatement
Much of what makes the Third Restatement consequential is where it departs from the Second. These are the changes that most often come up in litigation and in state-level debates about whether to adopt a given section.
Design Defects: Risk-Utility Replaces Consumer Expectations
The Second Restatement asked whether a product was more dangerous than an ordinary consumer would anticipate. The Third Restatement requires the plaintiff to show that a reasonable alternative design existed that would have reduced the foreseeable risk of harm, and that omitting that alternative made the product unreasonably dangerous. Courts weigh the safety benefits of the proposed redesign against its costs and any trade-offs in usefulness. The ALI’s drafters concluded that consumer expectations alone were too vague for complex products where ordinary users have no meaningful baseline for what level of danger to expect. Not every state has followed the Third Restatement on this point. Several still apply the consumer expectations test, and a few use a hybrid approach.
Manufacturing defects remain governed by strict liability under the Third Restatement, because when a single unit departs from the intended design the problem is the product itself rather than any decision by the manufacturer. Warning defects turn on whether the missing warning made the product not reasonably safe given foreseeable risks. For prescription drugs and medical devices, the Restatement applies the learned intermediary doctrine: a manufacturer generally satisfies its duty by providing adequate risk information to the prescribing physician rather than warning the patient directly, though it can still face liability if its warnings to the physician were incomplete or misleading, or if it knew physicians would not be in a position to relay them.
Scope of Liability Replaces “Proximate Cause”
The Third Restatement swapped out the term “proximate cause” for “scope of liability” to make the concept easier to apply. A defendant is responsible only for the types of harm that were among the risks that made the conduct negligent in the first place. A speeding truck driver who hits a pedestrian is liable for the collision, because that is the kind of harm that makes speeding dangerous. If the same speeding truck startles a homeowner inside their kitchen and the homeowner drops a plate, the driver probably is not liable for the plate, because indoor kitchen accidents are not among the risks that make speeding negligent.
Land Possessor Duty: One Standard for Everyone
Traditionally, the duty a property owner owed depended on why the injured person was there. Invitees, who entered for a business purpose, got the highest protection. Licensees, like social guests, got less. Trespassers got almost none. The Third Restatement scraps that hierarchy and replaces it with a single standard: land possessors owe a duty of reasonable care to everyone who enters their property, regardless of status.
That duty covers artificial conditions like a broken staircase, natural conditions like a dead tree likely to fall, and the possessor’s own conduct on the land. The fact that a hazard was open and obvious does not automatically eliminate liability. It is a factor the jury weighs in deciding whether reasonable care was exercised, and it may support a finding of comparative fault against the injured person. The one exception involves flagrant trespassers, meaning people who enter to commit crimes or for other clearly wrongful purposes. Land possessors owe them only the duty not to harm them intentionally or recklessly, and to exercise reasonable care if the trespasser appears helpless or in danger. This is one of the sections that states have been most selective about adopting.
Abnormally Dangerous Activities: A Simpler Test
The Second Restatement’s test for strict liability on abnormally dangerous activities listed six factors and gave courts little guidance on how to weigh them. The Third Restatement condenses this into two elements: the activity must create a foreseeable and highly significant risk of physical harm even when everyone exercises reasonable care, and it must not be one of common usage. Blasting with explosives near occupied buildings is the textbook example.
Apportionment: Comparative Responsibility and Shared Fault
The Apportionment volume reflects the near-nationwide move away from contributory negligence, which barred a plaintiff from any recovery if they bore even a sliver of fault. Under comparative responsibility, fault is assigned by percentage to every participant, including the plaintiff. In a pure comparative fault system, financial responsibility matches the percentage: a plaintiff found 30 percent responsible recovers 70 percent of damages. Under modified comparative fault, which many states follow, the plaintiff is barred entirely once their share crosses a threshold, often 50 or 51 percent. The Restatement maps both approaches without insisting on one.
Joint and several liability gets the same treatment. In jurisdictions that keep it, any single defendant can be required to pay the full judgment if others are insolvent. Some states have abolished it in favor of several-only liability, where each defendant pays only their own percentage. Others apply it only when a defendant’s fault exceeds a certain threshold. Fault is assigned even to parties not in the courtroom, such as settling defendants or immune government entities, so that the remaining defendants do not absorb responsibility that properly belongs to someone else.
Economic Loss: Keeping Contract Disputes in Contract
The economic loss rule, as the Third Restatement frames it, generally bars tort claims for purely monetary harm when the parties had, or could have had, a contract. The idea is to keep disappointed contract parties from repackaging their claims as torts to escape limitations they agreed to. The volume carves out familiar exceptions, including professional negligence by accountants, lawyers, and similar providers; negligent misrepresentation by those in the business of supplying information; and tortious interference, which it splits into interference with an existing contract and interference with a prospective economic relationship, with a higher bar for the latter.
When a Provision Becomes Binding in Your State
Whether a particular Third Restatement section controls your case depends entirely on your jurisdiction. The relevant questions are whether the highest court in your state has adopted that section, whether your legislature has written it into statute, and whether your state has instead stayed with an earlier rule or developed its own. A section the Restatement treats as the modern consensus may still be rejected where you live, and a section your state has adopted may be applied with local modifications. Because adoption varies section by section and state by state, treating the Restatement as if it were a national code is one of the most common mistakes people make when they encounter it for the first time.