1

Updated 10/30/2019

SURVEY OF HOW COURTS NATIONALLY CITE

THE AMERICAN LAW INSTITUTE’S RESTATEMENTS

50-State Survey

State Citation Note

Alabama Keller v. Kiedinger, 389 So. 2d 129,

132 (Ala. 1980).

“After careful consideration, we are convinced the Restatement proposes

the best view, and we adopt s 390 as the law of this state.”

Alaska Saddler v. Alaska Marine Lines, Inc.,

856 P.2d 784, 787 (Alaska 1993).

“On the issue of strict products liability, we have adopted the

Restatement (Second) of Torts § 402A (1965), with some exceptions.”

Flint Hills Res. Alaska, LLC v.

Williams Alaska Petroleum, Inc., 377

P.3d 959, 975 (Alaska 2016).

“The rules in aid of contract interpretation are set out in section 202 of

the Restatement (Second) of Contracts.”

Arizona In re Sky Harbor Hotel Properties,

LLC, 246 Ariz. 531, 533, 443 P.3d 21,

23 (2019) (quoting CSA 13-101 Loop,

LLC v. Loop 101, LLC, 236 Ariz. 410,

414 ¶ 18, 341 P.3d 452, 456 (2014)).

“Absent controlling authority to the contrary, we generally follow

the Restatement when it sets forth sound legal policy.”

KnightBrook Ins. Co. v. Payless Car

Rental Sys. Inc., 243 Ariz. 422, 427,

409 P.3d 293, 298 (2018).

“‘In Arizona, if there is no statute or case law on a particular subject, we

have traditionally followed the Restatement of Laws, and generally will

embrace the Restatement if it prescribes a sound and sensible

rule.’ Cramer v. Starr, 240 Ariz. 4, 10 ¶ 21, 375 P.3d 69, 74–75 (2016)

(citations and internal quotation marks omitted). Although we leave for

another day whether to adopt other portions of the First or

Third Restatements of Restitution, we now decline to adopt

First Restatement § 78 because it is contrary to Arizona’s equitable

indemnity principles and does not, in our view, reflect a sound rule.”

Owner-Operator Indep. Drivers Ass'n

v. Pac. Fin. Ass'n, Inc., 241 Ariz. 406,

414, 388 P.3d 556, 564 (Ct. App.

2017).

“Arizona courts follow the Restatement of the Law unless the Legislature

or our courts have adopted a contrary rule.”

2

Updated 10/30/2019

State Citation Note

Powers v. Taser Intern. Inc., 174 P.3d

777, 782 (Ariz. Ct. App. 2007).

“Absent controlling Arizona law to the contrary, we generally follow the

Restatement, provided we deem it good legal authority . . . . However, we

do not follow the Restatement blindly . . . and will come to the contrary

conclusion if Arizona law suggests otherwise.”

Arkansas Stewart Title Guar. Co. v. Am. Abstract

& Title Co., 363 Ark. 530, 562, 215

S.W.3d 596, 616 (2005) (Corbin, J.

Dissenting).

“The majority seeks to define [the first] element [of tortious interference

with a business expectancy] by looking to Professor Prosser and

the Restatement (Second) of Torts. While this court has looked to Prosser

for guidance in prior cases dealing with this tort, I do not feel that we

need to resort to such sources here, as there is sound precedent from the

Eighth Circuit and the Eastern District of Arkansas.”

California Lake Almadnor Associates L.P. v.

Huffman-Broadway Group, Inc., 178

Cal.App. 4th 1194, 1200 n.3 (Cal. Ct.

App. 2009).

“Although the Restatement Second of Contracts (Restatement) is not

binding authority, ‘considering the circumstances under which it has been

drafted, and its purposes, in the absence of a contrary statute or decision

in this state, it is entitled to great consideration as an argumentative

authority.’”

Colorado More v. Western Forge Corp., 192

P.3d 427, 429 (Colo. Ct. App. 2007)

(quoting AE, Inc. v. Goodyear Tire &

Rubber Co., 168 P.3d 507, 509 n. 1

(Colo. 2007)).

“While not binding on Colorado courts, ‘the restatements generally

provide concise summaries of the law in a certain subject matter and can

be persuasive authority.’”

Bayer v. Crested Butte Mountain

Resort, Inc., 960 P.2d 70, 79 (Colo.

1998), as modified on denial of

reh'g (June 22, 1998).

“Although the Restatement (Second) of Torts does not have the force of

law, we may look to it as a summary of guiding legal principles.”

Cafeteria Operators L.P. v.

AMCAP/Denver Ltd. P'ship, 972 P.2d

276, 278 (Colo. App. 1998).

“[I]t is impossible for a court to ‘adopt’ a Restatement in the legislative

sense. Rather, we may apply sections of the Restatements as a

formulation of the law applicable to the issue before the court.”

Connecticut Snell v. Norwalk Yellow Cab, Inc., 158

A.3d 787, 805 (Conn. Ct. App. 2017)

Stating that the Restatement (Second) of Torts is not binding if it

conflicts with state precedent.

Delaware Riedel v. ICI Americas Inc., 968 A.2d

17, 20 (Del. 2009), overruled on other

“At this time, we decline to adopt any sections of the Restatement (Third)

of Torts. The drafters of the Restatement (Third) of Torts redefined the

3

Updated 10/30/2019

State Citation Note

grounds by Ramsey v. Georgia S. Univ.

Advanced Dev. Ctr., 189 A.3d 1255

(Del. 2018).

concept of duty in a way that is inconsistent with this Court's precedents

and traditions. The Restatement (Third) of Torts creates duties in areas

where we have previously found no common law duty and have deferred

to the legislature to decide whether or not to create a duty. . . . Whether

the expansive approach for creating duties found in

the Restatement (Third) of Torts is viewed as a step forward or backward

in assisting courts to apply the common law of negligence, it is simply

too wide a leap for this Court to take. Therefore, at the present time we

continue to follow the Restatement (Second) of Torts.”

District of

Columbia

Richardson v. Nationwide Mut. Ins.

Co., 826 A.2d 310, 322 (D.C.), reh'g

en banc granted, opinion vacated, 832

A.2d 752 (D.C. 2003), and vacated

pursuant to settlement, 844 A.2d 344

(D.C. 2004).

“We ought not to assume too readily that our decisions should be

construed in a way that makes them inconsistent with the Restatement,

which is written by the American Law Institute (ALI), an organization

comprised of especially distinguished judges, attorneys, and

scholars. See, e.g., Poretta v. Superior Dowel Co., 153 Me. 308, 137 A.2d

361, 373 (1957). ‘The Restatement may be regarded both as the product

of expert opinion and as the expression of the law by the legal

profession.’ Id. Although we are not required to follow the Restatement,

we should generally do so ‘where we are not bound by the previous

decisions of this court or by legislative enactment, ... [for] by so doing

uniformity of decision w[ill] be more nearly effected.’ Smith v.

Normart, 51 Ariz. 134, 75 P.2d 38, 42 (1938); see also Ellis v. James V.

Hurson Assocs., 565 A.2d 615, 618 (D.C. 1989); Gallimore v.

Washington, 666 A.2d 1200, 1213–14 (D.C. 1995) (dissenting opinion)

(addressing an issue not reached by the majority).”

Florida Westgate Resorts, Ltd. v. Sussman, 387

F. Supp. 3d 1318, 1352 (M.D. Fla.

2019).

“Florida courts have regularly turned to the Restatement (third)

for guidance in cases involving the professional obligations of lawyers

and law firms.” Canta v. Philip Morris USA, Inc., 245 So. 3d 813, 821

n.8 (Fla. 3d DCA 2017). Florida also “follows the Restatement (Second)

of Torts § 766 (1977) for [intentional interference] cause[s] of

action.” Martin Petroleum Corp. v. Amerada Hess Corp., 769 So. 2d

1105, 1107 (Fla. 4th DCA 2000) (citing Gossard v. Adia Servs., Inc., 723

4

Updated 10/30/2019

State Citation Note

So. 2d 182, 185 (Fla. 1998)). Section 766, in turn, cross-references

sections 768–773. See Restatement (Second) of Torts § 766 cmt. a.

Georgia Dziwura v. Broda, 676 S.E.2d 400, 402

(GA Ct. App. 2009).

“While not binding authority, we find the Restatement persuasive.”

Realmark Inv. Co. v. Am. Fin. Corp.,

171 B.R. 692, 694 (N.D. Ga. 1994).

“Because no controlling precedent exists, the Court must decide the

conflict of law issue as it believes the Georgia Supreme Court would

decide it. Wammock v. Celotex Corp., 835 F.2d 818 (11th Cir.1988).

For guidance, the Court may consider Restatements of Law, treatises, law

review commentaries, decisions from other jurisdictions whose doctrinal

approach is substantially the same, and the majority view of the other

states. Charles Alan Wright, Arthur R. Miller, & Edward H.

Cooper, 19 Federal Practice and Procedure § 4507 (1982).”

Hawaii Bynum v. Magno, 106 Haw. 81, 87,

101 P.3d 1149, 1155 (2004), as

amended (Dec. 2, 2004)

Compare Majority opinion, “This court has many times relied on

the Restatement (Second) of Torts as persuasive authority,” with

Dissenting opinion, “The majority offers no compelling justification or

cogent reason to disregard our precedent and resort to

the Restatement's discussion of the collateral source rule . . . .”

Idaho Asbury Park, LLC v. Greenbriar Estate

Homeowners' Ass'n, Inc., 152 Idaho

338, 345, 271 P.3d 1194, 1201 (2012)

(quoting Estate of Skvorak v. Sec.

Union Title Ins. Co., 140 Idaho 16, 22,

89 P.3d 856, 862 (2004)).

“‘The Restatement is not law unless it has been adopted by this Court.

This Court will not adopt a Restatement provision if it is inconsistent

with Idaho precedent, a different formulation resolved the issue, or the

issue can be resolved by current Idaho law.’”

Illinois Cochran v. Securitas Sec. Services

USA, Inc., 59 N.W.3d 234, 247 (Ill. Ct.

App. 4th Dist. 2016).

“Generally, a Restatement provides guidance to a court but does not

become binding authority unless specifically adopted by our supreme

court.”

Tilschner v. Spangler, 409 Ill. App. 3d

988, 994 & n. 2, 949 N.E.2d 688, 694

(2011) (quoting Secondary

Sources, Yale Law School, Lillian

Goldman Law Library, http://m-

“In the absence of Illinois law, we often deem secondary sources, such as

the Restatement (Second) of Torts, to be persuasive. * * * ‘A secondary

source is not the law. It's a commentary on the law. A secondary source

can be used for three different purposes: it might educate you about the

law, it might direct you to the primary law, or it might serve

5

Updated 10/30/2019

State Citation Note

library.law.yale.edu/content/secondary-

sources) (emphasis in original).

as persuasive authority. Few sources do all three jobs well. The important

classes of legal secondary sources include: treatises, periodical articles,

legal encyclopedias, ALR Annotations, Restatements, and Looseleaf

services.

* * *

Restatements

The restatements were developed by legal scholars initially to restate the

law, and currently to describe what the law should be. In either

case, Restatements are very persuasive although they are not very good at

describing the law. They can serve as adequate law finders.’”

Indiana Americans for the Arts v. Ruth Lilly

Charitable Remainder Annuity Tr. No.

1 U/A Jan. 18, 2002, 855 N.E.2d 592,

600 (Ind. Ct. App. 2006)

“. . . we observe that the Restatement is ‘not a statute whose precise

wording is entitled to deference as an act of an equal branch of

government.’”

Iowa Heinz v. Heinz, 653 N.W.2d 334, 339

(Iowa 2002).

“In general, we look at the Restatement not as the law but as a guide.”

Moad v. Libby, 863 N.W.2d 37, at *3

(Iowa Ct. App. 2015) (unpublished).

“Our courts adopt the rules and rationale set forth in a

particular Restatement only to the extent the rules and rationale are

deemed consistent with our body of law and

have persuasive force. See Thompson v. Kaczinski, 774 N.W.2d 829, 839

(Iowa 2009). Thus, although our court may adopt the rules or rationale set

forth in a particular Restatement, we do not necessarily do so jot-for-jot.”

Kansas Progressive Nw. Ins. Co. v. Gant, No.

15-9267-JAR-KGG, 2018 WL

4600716, at *6 (D. Kan. Sept. 24,

2018) (citing Kansas v. Nebraska, 135

S. Ct. 1042, 1064 (2015) (Scalia, J.,

concurring in part and dissenting in

part)).

Noting the Honorable Antonin G. Scalia’s criticism of

modern Restatements “for losing si[gh]t of their purported mission of

summarizing existing law.”

6

Updated 10/30/2019

State Citation Note

Nichols v. Kansas Political Action

Committee, 11 P.3d 1134, 1140 (Kans.

2000).

“The Restatement, of course, is not a compilation of Kansas law. Thus,

when presented with the question of recognizing a cause of action, which

is set forth in the Restatement but has not been prosecuted in Kansas

courts, this court typically weighs relevant factors, and declares either

that it is adopting or not adopting a rule set forth in a Restatement

section.”

Kentucky Presnell Const. Managers, Inc. v. EH

Const., LLC, 134 S.W.3d 575, 582

(Ky. 2004).

“Because we find § 552 to be consistent with Kentucky case law, we join

the majority of jurisdictions and hereby adopt § 552's standards for

negligent misrepresentation claims in this jurisdiction.”

Scheck Mechanical Corp. v. Borden,

Inc., 186 F.Supp.2d 724, 734 (W.D.

Ky. 2001).

“We have recognized that, based upon Kentucky's general adoption of

the Restatement in other tort situations, Kentucky would recognize this

standard for negligent misrepresentation.”

Goldman Services Mechanical

Contracting, Inc. v. Citizens Bank &

Trust Co. of Paducah, 812 F.Supp.

738, 742 (W.D. Ky. 1992).

“Based upon Kentucky's general adoption of the Restatement in other tort

situations, the court concurs with that conclusion.”

Louisiana In re Two-J Ranch, Inc., 534 F. Supp.

2d 671, 688 (W.D. La. 2008).

Recognizing that “the Restatements are, at best, persuasive authority.”

Nicholas v. Allstate Ins. Co., 765 So.2d

1017, 1021 n.4 (La. 2000)

“Although the Restatement is not binding on Louisiana courts, the

restrictions and guidelines established therein for policy reasons do

provide guidance to our courts in the adjudication of these claims.”

Maine Dupuis v. Fed. Home Loan Mortg.

Corp., 879 F. Supp. 139, 142 (D. Me.

1995) (citing United States v. Gil, 657

F.2d 712, 715 (5th Cir. 1981); Bonk v.

McPherson, 605 A.2d 74, 78 (Me.

1992)).

“[B]oth the federal courts and the Maine Law Court regularly rely on

the Restatements where, as here, no applicable precedents exist.”

Maryland Sunbeam Prod., Inc. v. 148977

Canada, Inc., No. C-02-85666, 2004

WL 3135768, at *4 (Md. Cir. Ct. Mar.

9, 2004) (unpublished).

“While this Court agrees that the modern restatement might be more clear

and “business friendly” than the Maryland appellate holdings of 65 yeats

ago, the job of updating legal standards generally should be left to the

7

Updated 10/30/2019

State Citation Note

legislature. Therefore, this Court will adhere to the principles of stare

decisis and apply the existing rule.”

Massachusetts Lou v. Otis Elevaor Co., 933 N.E.2d

140, 148 (Mass. Ct. App. 2010)

“[W]hile this court often considers the various Restatements of the Law

as prestigious sources of potentially persuasive authority, we have never

taken the position that this court should abdicate to the views of the

American Law Institute as set forth in its various Restatements.”

Michigan Smith v. Allendale Mut. Ins. Co., 303

N.W.2d 702, 709 (Mich. 1981)

“Even where a particular Restatement section has received specific

judicial endorsement, cases where that section is invoked must be decided

by reference to the policies and precedents underlying the rule restated.”

Minnesota Travertine Corp. v. Lexington-

Silverwood, 683 N.W.2d 267, 271

(Minn. 2004).

“We will not adopt a provision of a Restatement of Law if our precedent

is to the contrary and we believe that our precedent still reflects the

proper rule of law.”

Williamson v. Guentzel, 584 N.W.2d

20, 24 (Minn. Ct. App. 1998).

“Restatements of the law are persuasive authority only and are not

binding unless specifically adopted in Minnesota by statute or case law.”

Mississippi Boardman v. United Servs. Auto. Ass'n,

470 So. 2d 1024, 1032 (Miss. 1985)

“As indicated above, this Court has expressly approved Restatement § 6

and incorporated it into the law of this state. . . Short of authoring a

treatise on the subject which would be neither helpful nor read, we will

simply say that the factors enumerated in Restatement § 6 will from case

to case be given such relative weight as they are entitled, consistent with

the general scheme of the center of gravity test.”

Missouri D.T. v. Catholic Diocese of Kansas

City-St. Joseph, 419 S.W.3d 143, n.12

(Mo. 2013)

“And because the Restatements of the Law, as a series of treatises, are not

binding precedent upon any court but, rather, constitute the American

Law institute’s compilations of law and general statements on what the

law is or should be, our Missouri Supreme Court may elect to continue to

endorse an outdated and superseded RESTATEMENT (SECOND) OF

TORTS, section 317, as one of the required elements of the tort of

intentional failure to supervise clergy.”

City of St. Louis v. Am. Tobacco Co.

Inc., 70 F. Supp. 2d 1008, 1015 (E.D.

Mo. 1999).

“In this case, however, the Court believes that plaintiffs' theory of

recovery may in fact be recognized for several reasons. First, courts in

other states have adopted and recognized the Restatement of Restitution §

8

Updated 10/30/2019

State Citation Note

115. . . . Second, Missouri state courts have often relied upon

and adopted other provisions contained in the Restatement of Restitution.

. . . For these reasons, the Court believes that plaintiffs' claim pursuant to

the Restatement of Restitution § 115 should be presented to the Missouri

state courts, if plaintiffs have otherwise demonstrated that they have

properly stated a cause of action pursuant to section 115.”

Montana Peterson v. Eichhorn, 2008 MT 250, ¶

17, 344 Mont. 540, 544–45, 189 P.3d

615, 620 (citations omitted).

“[Appellee] points out that § 509 has not been adopted in Montana and is

not binding authority. While this is true, it is also true that we

have adopted other sections of the Restatement. Thus, Eichhorn's

observation that § 509 has not been adopted in Montana and is not

binding authority does not end our analysis.”

Nebraska Blinn v. Beatrice Cmty. Hosp. &

Health Ctr., Inc., 270 Neb. 809, 823,

708 N.W.2d 235, 248 (2006).

Explaining that Nebraska has rejected Restatement (Second) of Contracts

view of promissory estoppel in favor of a less demanding standard.

Nevada Vega v. CTX Mortg. Co., LLC, 761 F.

Supp. 2d 1095, 1097 (D. Nev. 2011).

Noting that a state district court “anticipated that because the Nevada

Supreme Court had adopted the Restatement (Third) of Property

(Mortgages) in other contexts, that it would also adopt § 5.4 of

the Restatement.”

New

Hampshire

In re Tr. of Mary Baker Eddy, 212

A.3d 414, 421-22 (N.H. 2019).

Rejecting more stringent test for special interest standing proposed by

Restatement of the Law Charitable Nonprofit Organizations in favor of a

more flexible standard adopted in other jurisdictions because the more

flexible standard better comported with New Hampshire law.

New Jersey Tris Pharma, Inc. v. UCB

Manufacturing, Inc., 2016 WL

4506129 at *5 (N.J. Superior Ct. Aug.

29, 2016)

“While we may look at the Restatement’s definition of a ‘trade secret’ as

additional support for the common law definition, the Restatement is not

binding upon our courts.”

New Mexico Fikes v. Furst, 2003-NMSC-033, ¶ 14,

134 N.M. 602, 607, 81 P.3d 545, 550

“Although the Restatement is not binding, we consider it to be

‘persuasive authority entitled to great weight.’”

9

Updated 10/30/2019

State Citation Note

(quoting Gabaldon v. Erisa Mortgage

Co., 1999–NMSC–039, ¶ 27, 128 N.M.

84, 990 P.2d 197).

Gabaldon v. Erisa Mortgage Co., 990

P.2d 197, 204 (N.M. 1999)

“As a matter of course, we emphasize that the Restatement is merely

persuasive authority entitled to great weight that is not binding on this

court.”

Venaglia v. Kropinak, 1998-NMCA-

043, ¶ 12, 125 N.M. 25, 30, 956 P.2d

824, 829.

“For authoritative guidance on the common law we look to the

Restatement.”

New York Thorn v. Stephens, 169 Misc.2d 832,

834 fn.2 (N.Y. Supp. Ct. Westchester

1995)

“The Restatement of Law is not binding. In the absence of legal

precedent, however, the Courts may look for guidance to such sources as

the Restatements of Law.”

North

Carolina

Williams v. Habul, 724 S.E.2d 104,

110 (N.C. Ct. App. 2012).

“[T]he Restatement (Second) of Contracts serves as persuasive, not

binding, authority upon this Court and, ‘[e]xcept as specifically adopted

in this jurisdiction, the Restatement should not be viewed as

determinative of North Carolina law.’ Hedrick v. Rains, 344 N.C. 729,

729, 477 S.E.2d 171, 172 (1996). Our Courts, however, have looked to

the Restatement for guidance in cases involving third party beneficiary

contracts.”

North Dakota Stanley v. Turtle Mountain Gas & Oil,

Inc., 1997 ND 169, ¶ 10, 567 N.W.2d

345, 348.

“The Restatements of Tort are carefully studied and precisely stated

summaries of basic principles of law. Barsness v. General Diesel &

Equipment Co., 383 N.W.2d 840, 842 n. 1 (N.D. 1986). In Barsness, we

recognized: ‘They are entitled to respect as authoritative and reasoned

outlines of the law “as it has developed in the courts.”’ Id. at 842 n. 1,

quoting Restatement (Second) of Torts, Introduction at VII.”

Barsness v. Gen. Diesel & Equip. Co.,

383 N.W.2d 840, 842 n. 1 (N.D. 1986).

“Barsness urges us to ‘adopt’ this section of the Restatement. Because the

Restatements are carefully studied and precisely stated summaries of

basic principles of law, they are particularly useful for study and

reference. They are entitled to respect as authoritative and reasoned

outlines of the law ‘as it has developed in the courts.’ Restatement

(Second) of Torts (1965), Introduction at VII. Although we have often

10

Updated 10/30/2019

State Citation Note

relied upon and cited the Restatements as relevant authority, we believe it

is inappropriate for a judicial body to ‘adopt’ principles of law as

summarized in the Restatements. While at times the difference may

appear semantical, there are important differences between ‘adopting’ a

reference and relying upon it as relevant authority in a particular case. We

are not a legislative body and we therefore cannot ‘adopt’ any part of the

Restatements. Of course, we shall continue to use and cite Restatement

references as authoritative and convenient expressions of principles of

law where they are appropriate.”

Ohio Dillon v. Waller, No. 95APE05-622,

1995 WL 765224, at *7 (Ohio Ct. App.

Dec. 26, 1995) (unpublished).

Referring to the Restatement of Torts as “persuasive authority” and

adopting Restatement rule as “the more reasoned approach.”

Oklahoma Gomes v. Hameed, 2008 OK 3, ¶¶ 2-3,

11, 184 P.3d 479, 491–92, 95 (Opala,

J. Dissenting)

“Restatements of the common law on chosen subjects have long been

recognized as a material source for tracking or monitoring the

development and growth of common-law norms.3 The American Law

Institute (ALI), a private national organization of judges, practitioners,

and law teachers,4 crafts the restatements, whose purpose is to identify,

simplify and clarify selected common-law

norms. The restatement process is slow and deliberative. An

ALI restatement on a given legal subject is developed gradually over a

period of years. Today's hasty recognition of a new state common-law

norm shortcuts severely the accepted restatement process

by adopting into Oklahoma law a new legal norm on the basis of a single

state's jurisprudential development of very recent vintage. . . .

Today's adoption of a new legal norm—taken from a single sister state's

common-law jurisprudence—shortcuts severely the multiple-stage

process of the ALI restatement work. The court's hasty and premature

injection of a new Oklahoma norm of unwritten law without any

consideration of its impact on existing common law throws to the winds

11

Updated 10/30/2019

State Citation Note

the safeguards built into the ALI restatement system. I would await a

careful and thorough ALI examination before adopting the tendered norm

into the body of Oklahoma's common law.”

Oregon Petersen v. Gangle, 899 P.2d 725 (Or.

1995).

“Although we often look to the Restatement (Second) of Judgments for

guidance in deciding questions of claim and issue preclusion, we are not

bound by it.”

Allen v. Heil Co., 285 Or. 109, 120,

589 P.2d 1120, 1126 (1979).

“It should be remembered that s 402A is not a statute and that as an

attempted restatement of common law it is binding upon this court only

so long and in such particulars as we may find appropriate.”

Pennsylvania Murray v. Willistown Twp., 2017 PA

Super 265, 169 A.3d 84, 92 (2017).

“Where, as here, the Supreme Court of Pennsylvania has neither adopted

nor rejected a Restatement provision, we are free to adopt it in an

appropriate case.”

Newell v. Montana W., Inc., 154 A.3d

819, 824 n.7 (Pa. Super. 2017).

“In the absence of a contrary pronouncement by the Supreme Court, we

are free to adopt Section 349 in an appropriate case.”

Tincher v. Omega Flex, Inc., 628 Pa.

296, 340–41, 104 A.3d 328, 354-55 &

n. 7 (2014).

“[B]ecause the language of a provision of the restatement, even to the

extent it was adopted by the Court verbatim, has not been vetted through

the crucible of the legislative process, a court applying

the restatement formulation should betray awareness that the language of

an ‘adopted’ restatement provision is not ‘considered controlling in the

manner of a statute.’ A given restatement section simply states principles

of the common law, general rules whose validity depends on the

reasoning that supports them. Coyle, 584 A.2d at 1385. As with any other

common law rules, the normative principles of an ‘adopted’ section of

a restatement are properly tested against the facts of each case.”

“Consideration for whether the general principle has been accepted

elsewhere reflects the understanding that the restatement purports to

represent the majority view on the subject in the United

States. See Adams, 33 Hofstra L.Rev. at 443–44. But, questions remain

subject to dispute regarding the “essential nature of

the modern Restatements” and whether uniformity among jurisdictions is

12

Updated 10/30/2019

State Citation Note

necessary and wise. See generally Vargo, 26 U. Mem. L.Rev. at 515–

36 (describing internal criticism of some that membership of American

Law Institute drafting Third Restatement “[wa]s largely comprised of

those who represent[ed] corporate interests” and who “fail[ed] to leave

the client at the door”); and see Adams, 33 Hofstra L.Rev. at 443–

44 (offering argument that “fit” for jurisdiction that shapes common law

“is more important than uniformity” among American jurisdictions).”

Coyle by Coyle v. Richardson-Merrel,

inc., 526 Pa. 208, 212 (Pa. 1991).

“Even where this Court has ‘adopted’ a section of the Restatement as the

law of Pennsylvania, the language is not to be considered controlling in

the manner of a statute. Such precepts, though they may govern large

numbers of cases, are nothing other than common law pronouncements

by the courts; their validity depends solely on the reasoning that supports

them.”

Rhode Island Schock v. United States, 56 F. Supp. 2d

185, 193 (D.R.I. 1999).

“The Rhode Island Supreme Court would look to the Restatement, but it

would not adopt the illogical rule reported by Comment C that Schock

quotes. The Restatement is not precedent. A sentence in a Comment

published in 1958 does not bind this Court in the fashion of a similar

sentence from the First Circuit or Rhode Island Supreme Court. Instead,

learned treatises are weighed along with Rhode Island court

decisions, persuasive opinions by other state courts, and the public policy

considerations identified in state decisional law.”

South

Carolina

Todd v. S.C. Farm Bureau Mut. Ins.

Co., 283 S.C. 155, 168, 321 S.E.2d

602, 610 (Ct. App. 1984), writ granted

in part, 285 S.C. 84, 328 S.E.2d 479

(1985), and decision quashed, 287 S.C.

190, 336 S.E.2d 472 (1985)

“Neither the trial court nor this Court is at liberty to substitute its

subjective and provincial sensibilities regarding what is reprehensible and

socially intolerable conduct for the guidelines which our Supreme Court

has established with its adoption of the Restatement formulation of the

tort.”

“While we do not intimate that every case falls neatly within a simple

equation, we have discerned certain limitations established by the

Restatement and cases interpreting it which we feel compelled to

recognize.”

13

Updated 10/30/2019

State Citation Note

South Dakota Chem-Age Industries, Inc. v. Glover,

652 N.W.2d 756, 770 (S.D. 2002).

“Of course, the Restatement’s pronouncements are not binding on this

Court; nevertheless, we have found its reasoning persuasive in many

instances.”

Sapienza v. Liberty Mut. Fire Ins. Co.,

389 F. Supp. 3d 648, 653 (D.S.D.

2019) (quoting Chem-Age Indus., Inc.

v. Glover, 652 N.W.2d 756, 770 (S.D.

2002)).

“Although there is no South Dakota precedent on an insurer's liability for

providing an inadequate defense, there is a draft of

the Restatement addressing this issue. Because the

draft Restatement follows the well-reasoned majority rule and because

the Supreme Court of South Dakota has found

the Restatements ‘persuasive in many instances,’ this Court predicts that

the Supreme Court of South Dakota would adopt

the Restatement's position on insurer liability for an improper defense.”

Tennessee Innerimages, Inc. v. Newman, 579

S.W.3d 29, 46 (Tenn. Ct. App. 2019)

“In the absence of a controlling statute or guidance from the Supreme

Court, this Court has the authority to adopt provisions of a Restatement in

order to further the development of the common law in this state.”

Texas Gutierrez v. Collins, 583 S.W.2d 312,

318 (Tex. 1979).

“Having considered all of the theories, it is the holding of this court that

in the future all conflicts cases sounding in tort will be governed by the

‘most significant relationship’ test as enunciated in Sections 6 and 145 of

the Restatement (Second) of Conflicts. This methodology offers a

rational yet flexible approach to conflicts problems. It offers the courts

some guidelines without being too vague or too restrictive. It represents a

collection of the best thinking on this subject and does indeed include

‘most of the substance’ of all the modern theories.”

Utah C.R. England v. Swift Transportation

Co., 2019 UT 8, ¶ 18, 437 P.3d 343,

347 (quoting Bunnell v. Bills, 13 Utah

2d 83, 368 P.2d 597, 602 (1962)).

“Because Bunnell was decided in 1962—twenty-three years after the

first Restatement was published and seventeen years before the

second Restatement was published, the first and second Restatements act

as helpful bookends in our survey of the ‘generally recognized [law] in a

majority of jurisdictions’ at the time. Accordingly, we look to

the Restatements of Torts, and cases in other jurisdictions that have

interpreted the Restatements’ language, as persuasive authority.”

14

Updated 10/30/2019

State Citation Note

Coburn v. Whitaker Constr. Co., 2019

UT 24, ¶ 15, 445 P.3d 446, 451.

“Finally, Ms. Coburn argues that we should abandon the rule from

the Restatement (Second) because the rule in the Restatement (Third) is

different. But she does not explain how or why any change in

the Restatement (Third) would affect the continuing viability of Hale.

The fact that the Restatement may have changed over time does not

necessarily mean that an opinion adopting an earlier-in-time rule needs to

be overturned. It is still incumbent upon Ms. Coburn to explain why that

change necessitates the overturning of our precedent—an explanation she

omits here.”

Grundberg v. Upjohn Co., 813 P.2d

89, 95 (Utah 1991).

“The restatement serves an appropriate advisory role to courts in

approaching unsettled areas of law. We emphasize, however, that section

402A of the Restatement (Second) of Torts, as drafted in 1965, is not

binding on our decision in this case except insofar as we explicitly adopt

its various doctrinal principles.”

Vermont Jenkins v. Miller, 983 F. Supp. 2d 423,

451 (D. Vt. 2013) (citing Schuppin v.

Unification Church, 435 F.Supp. 603,

609 (D.Vt. 1977); Fromson v.

State, 2004 VT 29, ¶ 25, 176 Vt. 395,

848 A.2d 344, 351 (declining to adopt

a cause of action for prima facie tort as

set forth in Restatement (Second) of

Torts § 870 under the circumstances of

that case)).

“To be sure, as this Court has acknowledged, Vermont courts are not

bound to follow the Restatements. In this case however, section

700 merely tracks existing Vermont law.”

Virginia Automotion, Inc. v. Gregory, 46 Va.

Cir 509, 509 (Va. Cir. Norfolk 1996)

Stating that the Restatement is persuasive but not binding.

Washington FutureSelect Portfolio Mgmt., Inc. v.

Tremont Grp. Holdings, Inc., 175

Wash. App. 840, 859, 309 P.3d 555,

564 (2013), aff'd, 180 Wash. 2d 954,

“Even though no Washington court has formally adopted section 148 [of

the Restatement (Second) of Conflict of Laws], we may still refer to that

provision for guidance.”

15

Updated 10/30/2019

State Citation Note

331 P.3d 29 (2014), and aff'd, 190

Wash. 2d 281, 413 P.3d 1 (2018).

West Virginia Havalunch, Inc. v. Mazza, 170 W. Va.

268, 272–73, 294 S.E.2d 70, 75 (1981).

“We have never had a case directly on this point in West Virginia, and

while there are numerous old West Virginia defamation cases from which

we could draw by loose analogy, the issue is sufficiently unique that the

better course is to adopt the majority rule on this discrete subject as it has

been articulated elsewhere in the American law. A good point of entry is

the Restatement (Second) of Torts, § 566 (1977) . . . .”

Wisconsin Habush v. Cannon, No. 2011AP1769,

2012 WL 2345137, at *5 (Wis. Ct.

App. June 21, 2012) (unpublished).

Referring to “opinions from federal courts, from other state courts, or

from such authorities as the RESTATEMENT” as persuasive authorities.

State v. Eugenio, 210 Wis. 2d 347,

352, 565 N.W.2d 798, 801 (Ct. App.

1997), aff'd, 219 Wis. 2d 391, 579

N.W.2d 642 (1998).

“The official comment which accompanies a source of authority is not

automatically law; it is ‘persuasive authority.’ See Paulson v. Olson

Implement Co., Inc., 107 Wis.2d 510, 523-24, 319 N.W.2d 855, 861-62

(1982). When the supreme court has determined that a principle in a

comment should become law, it has formally adopted it. . . . Thus, based

on the supreme court's historical practice of treating the commentary that

often accompanies legal authority as a separate source, we conclude that

the comments accompanying Standard 3.1(c) are not authority because

the Simmons court did not adopt them.”

Wyoming Lee v. LPP Mortg. Ltd., 2003 WY 92,

¶ 33, 74 P.3d 152, 163–64 (Wyo.

2003).

“Having found that no duty of disclosure will arise under § 551, we

decline the invitation to adopt § 551 at this time. However, as noted by

this court previously, a majority of jurisdictions have either accepted §

551 or cited it with approval. Richey, 904 P.2d at 802–03 and n. 3

(collecting cases). We are not suggesting that we reject § 551 and refuse

to adopt it. However, because § 551 affects legal duties, we would prefer

to fully consider its adoption when the parties have presented thorough

argument on the subject and a duty of disclosure would actually exist

under the restatement.”

16

Updated 10/30/2019

Federal Circuits & U.S. Supreme Court

Federal

Court

Citation Note

1st Circuit Neelon v. Krueger, No. 12-CV-11198-

IT, 2015 WL 4576825, at *2 (D. Mass.

July 30, 2015)

“For issues of tort, Massachusetts does not ‘tie ... conflicts law to any

specific choice-of-law doctrine, but seek[s] instead a functional choice-

of-law approach that responds to the interests of the parties, the States

involved, and the interstate system as a whole.’ The Massachusetts

Supreme Judicial Court (“the Supreme Judicial Court”) has held,

however, that the Restatement (Second) of Conflicts of Laws (1971)

(“the Restatement”) is an ‘obvious source of guidance’ for choice-of-law

questions.”

Dupuis v. Fed. Home Loan Mortg.

Corp., 879 F. Supp. 139, 142 (D. Me.

1995)

“Under both federal common law and Maine law, the Restatement

(Second) of Agency provides the governing principles because both the

federal courts and the Maine Law Court regularly rely on the

Restatements where, as here, no applicable precedents exist.”

2nd Circuit In re Fosamax Prod. Liab. Litig., 742

F. Supp. 2d 460, 472 (S.D.N.Y. 2010).

“It must be remembered that a restatement is neither a statute nor a

development of legislative code, but rather one organization's summary

or opinion of certain principles of law. Courts are free to adopt certain

sections as the law of their state and reject others. As a federal court

sitting in diversity, the Court is hesitant to stitch into decades of Florida

tort law one section of a treatise that its courts have shown no apparent

interest in adopting over the past twelve years.”

O'Shanter Res., Inc. v. Niagara

Mohawk Power Corp., 915 F. Supp.

560, 566 (W.D.N.Y. 1996) (quoting

Encogen Four Partners v. Niagara

Mohawk Power Corporation, 914

F.Supp. 57, 62 (S.D.N.Y. 1996)).

“‘The Restatement . . . is not the substantive law of New York and

creates no rights not already incorporated by New York statutory and

common law.’”

3rd Circuit Wallach v. Eaton Corp., 837 F.3d 356,

368 (3d Cir. 2016)

“The Restatement eliminates the risk of courts reaching inconsistent

conclusions about the consensus of state law, supplants the need for a

would-be assignor or assignee to conduct her own fifty-state survey

before assigning an antitrust claim to ensure it will be enforceable in

17

Updated 10/30/2019

federal court, and sets a baseline from which litigants may operate when

challenging or defending the validity of such an assignment. . . In sum,

we agree with Appellants that the Restatement carries persuasive force in

defining our federal common law, but we also caution that it serves only

as a starting point.”

4th Circuit

5th Circuit Dupuis v. Fed. Home Loan Mortg.

Corp., 879 F. Supp. 139, 142 (D. Me.

1995) (citing United States v. Gil, 657

F.2d 712, 715 (5th Cir. 1981); Bonk v.

McPherson, 605 A.2d 74, 78 (Me.

1992)).

“[B]oth the federal courts and the Maine Law Court regularly rely on

the Restatements where, as here, no applicable precedents exist.”

Rhynes v. Branick Mfg. Corp., 629 F.2d

409, 410 (5th Cir. 1980).

“We have no assurance whatever that Texas would adopt the product line

rule of liability. That rule represents at least a radical extension of Texas

product liability theory, at most a shift to a new and additional basis for

liability. Neither action is appropriate for us. Whatever the merits or

demerits of the proposed new rule, for us to adopt it for Texas would be

presumptuous. We decline to do so.”

6th Circuit Freeman v. Blue Ridge Paper Prod.,

Inc., 529 F. App'x 719, 728 (6th Cir.

2013).

Predicting North Carolina law and refusing to adopt section of

Restatement (Second) of Torts where the plaintiff offered

no authority suggesting North Carolina would adopt it.

Beau Townsend Ford Lincoln, Inc. v.

Don Hinds Ford, Inc., 759 F. App'x

348, 353 (6th Cir. 2018) (quoting

Garrison v. Jervis B. Webb Co., 583

F.2d 258, 262 n.6 (6th Cir. 1978)).

“[W]e may look to an applicable Restatement (here, the Restatement of

Contracts) for guidance ‘when there is no controlling state law on point

when the state has indicated ... that it considers the Restatements to be

persuasive authority.’”

7th Circuit Ormond v. Anthem, Inc., No. 1:05-CV-

1908-DFH-TAB, 2008 WL 906157, at

*18 (S.D. Ind. Mar. 31, 2008).

“It is one thing for the court to assume from the Ohio Supreme Court's

decision to adopt some sections of the Restatement of Conflict of Laws

that it intended to adopt the entire Restatement. It is a much bigger leap

to assume that the Ohio court's decision to adopt some sections of

the Restatement amounted to a delegation to the American Law Institute

of the authority to craft Ohio's conflicts of law jurisprudence through

18

Updated 10/30/2019

future revisions of the Restatement. The court is unwilling to make that

leap.”

8th Circuit Boswell v. Panera Bread Co., 879 F.3d

296, 303 (8th Cir. 2018) (citing State

ex rel. Vincent v. Schneider, 194

S.W.3d 853, 858–59 (Mo. 2006) (en

banc)).

“Missouri routinely finds the Restatement (Second) of

Contracts persuasive. See, e.g.,

Hill v. MCI WorldCom Commc'ns, Inc.,

141 F. Supp. 2d 1205, 1212 (S.D. Iowa

2001).

“Though the Restatement rejects the exception, see Restatement

(Second) of Torts § 652D cmt. (“[I]t is not an invasion of the right to

privacy ... to communicate a fact ... to a single person, or even to a small

group of persons.”), Iowa courts are obviously not bound to follow it. . .

Iowa has adopted the Restatement 's privacy tort principles . . . but

principles are flexible guides to aid in the resolution of cases.”

9th Circuit McKay v. Rockwell Int'l Corp., 704

F.2d 444, 447 (9th Cir. 1983).

“Section 402A is not a federal statute. It should be applied only when the

purposes it seeks to serve dictate its application. When that is not the

case it has no independent force. To apply it merely because it is there is

to abdicate judicial responsibility.”

In re Breast Cancer Prevention Fund,

574 B.R. 193, 216 (Bankr. W.D. Wash.

2017).

“Washington courts look to the Restatement of Trusts as persuasive

authority.”

W. Radio Servs. Co., Inc. v. Allen, 147

F. Supp. 3d 1132, 1144 (D. Or. 2015),

aff'd, 716 F. App'x 660 (9th Cir. 2018).

“Federal and Oregon courts refer to the Restatement of Torts when

considering a trespass claim.”

19

Updated 10/30/2019

10th Circuit Pena v. Greffet, 110 F. Supp. 3d 1103,

1138 (D.N.M. 2015).

Refusing to follow Restatement (Third) of Agency rule over New

Mexico case law adopting and applying the Restatement (Second) of

Agency rule and explaining rationale for sticking to the old rule.

11th Circuit Roach v. M/V Aqua Grace, 857 F.2d

1575, 1583 (11th Cir. 1988)

“This Court does not have the power to abandon controlling Supreme

Court precedent in favor of the Restatement.”

D.C. Circuit Tel-Oren v. Libyan Arab Republic, 726

F.2d 774, 781 (D.C. Cir. 1984).

Looking for guidance to the RESTATEMENT OF THE LAW OF

FOREIGN RELATIONS (REVISED) § 702 (Tent. Draft No. 3, 1982)

and characterizing the Restatement as commentary “defining the limits of

section 1350 [jurisdiction].”

Federal

Circuit

U.S. Supreme

Court

Kansas v. Nebraska, 135 S. Ct. 1042,

1064 (2015) (Scalia, J., concurring in

part and dissenting in part).

“I write separately to note that modern Restatements—such as the

Restatement (Third) of Restitution and Unjust Enrichment (2010), which

both opinions address in their discussions of the disgorgement remedy—

are of questionable value, and must be used with caution. The object of

the original Restatements was “to present an orderly statement of the

general common law.” Restatement of Conflict of Laws, Introduction, p.

viii (1934). Over time, the Restatements' authors have abandoned the

mission of describing the law, and have chosen instead to set forth their

aspirations for what the law ought to be. Keyes, The Restatement

(Second): Its Misleading Quality and a Proposal for Its Amelioration, 13

Pepp. L.Rev. 23, 24–25 (1985). Section 39 of the Third Restatement of

Restitution and Unjust Enrichment is illustrative; as Justice THOMAS

notes, post, at 1068 (opinion concurring in part and dissenting in part), it

constitutes a “‘novel extension’” of the law that finds little if any support

in case law. Restatement sections such as that should be given no weight

whatever as to the current state of the law, and no more weight regarding

what the law ought to be than the recommendations of any respected

lawyer or scholar. And it cannot safely be assumed, without further

inquiry, that a Restatement provision describes rather than revises current

law.”

Montana v. United States, 440 U.S.

147, 164, 99 S. Ct. 970, 979, 59 L. Ed.

“I join the Court's opinion on the customary understanding that its

references to law review articles and drafts or finally adopted versions of

20

Updated 10/30/2019

2d 210 (1979) (Rehnquist, J.

Concurring).

the Restatement of Judgments are not intended to bind the Court to the

views expressed therein on issues not presented by the facts of this case.”