Ouija board or the Second Restatement of Torts?


So Christmas break is over, I managed to fly down to DC and back without anyone exploding anything in their underpants (yay), and we begin the new year by looking at two recent SJC decisions, one in which the Court expanded tort law (Dyer v. Maine Drilling & Blasting, Inc., 2009 ME 126) and one in which it declined to do so (Cilley v. Kane, 2009 ME 133):   


In Dyer, the Court abrogated existing common law to adopt the Second Restatement of Tort's rule of strict liability for blasting.  In Cilley, the Court rejected a new bystander duty to rescue.

So how do we predict when the Court will change tort law?  Do these cases give us any clues? 

You could look at the case law from the past few years and say that this Court is generally expanding the law (see Picher v. Roman Catholic Bishop of Portland, 974 A.2d 986; Dragomir v. Spring Hill Hospital, 970 A.2d 310; Fortin v. Roman Catholic Bishop of Portland, 871 A.2d 1208).  But you have to be careful when making sweeping generalizations like that, because there's no backwards in this area – a court never abrogates existing common law to eliminate or limit a tort. (This is one reason why courts are generally cautious in changing the common law status quo.  There aren't any take backs.)  

If you look at the big picture, the biggest factor in whether the Court will change the law appears to be what the Second Restatement of Torts says.  While the court is not a slave to the Second Restatement (see e.g. Stockly v. Doil, 870 A.2d 1208), if the Second Restatement recognizes a tort, combined with the majority of other jurisdictions recognizing that tort, then it's a pretty good bet that the Dirigo state will follow.  

Is this good or bad?  There are good things to say about going with the Second Restatement – not only is harmony v. discord among the states a plus, but going to the Second Restatement rule allows you to plug into caselaw from other jurisdictions – it may not be Maine precedent, but there's a body of law out there to look at for guidance.  And if you are going to change the law, there aren't a lot of other resources except the Second Restatement, which has the test of time in its favor and had the goal in the first place of identifying existing law, and not attempting to change that law (in contrast with, e.g. the Third Restatement)

One downside may be in thinking that the Second Restatement is more than it is.  There are areas in which the language of the Second Restatement rule is pretty fuzzy, and it's important  to understand that broad language doesn't mean that it's an "anything goes to the jury" tort; rather, the rule must be examined in the context of the other common law in that jurisdiction to impose some parameters.

The Second Restatement rule on public nuisance (section 821B) is a classic example.  The rule has vague language about how the tort requires "unreasonable interference."  Hmm – unreasonable – doesn't that mean when I'm the one who wants relief?  That's not a very workable test.  

Well, go read the fine print (you're a lawyer, right, isn't that what we do?)  If you look at all the Second Restatement's text on public nuisance, you will see that it (like many other sources, e.g Prosser) says that public nuisance law is a big mushy mess.  Instead of trying to fix this mess, comment e to Section 821B says that "if interference with a public right is not within the traditional common law, the court is acting without an established standard."  Translation – if you want to have any limits to the tort, you'd better apply some from your jurisdiction's common law.  

In sum, the Second Restatement isn't necessary a replacement for a jurisdiction's common law; it may simply help inform it.