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Archive for February 26th, 2013


Snowboarders & Skiers Crash to Learn About Restatements

Snowboarders & SkiersIn a recent Ohio Supreme Court case, snowboarders crashing into skiers provided the Court an opportunity to use Restatements of the Law.

The accident occurred at Boston Mills Ski Resort located in Peninsula, Ohio.  The case was Horvath v. Ish, 134 Ohio St. 3d 48, 2012-Ohio-5333 (2012). The only issue before the court was what duty or standard of care is owed by the snowboarder to skier for purposes of determining tort liability.  The Ohio Supreme Court used the Restatements of the Law, Torts to locate case law providing the proper standard of care.

What are Restatements? Restatements aim to distill a concise set of principles or rules from common law. In general, this legal research tool “restates” what the current law; it does not project what law should be. However, on occasion, Restatements may provide recommendations on a rule of law. Restatements are not primary law; rather they are a type of secondary legal resource known as legal commentary and are given special status by courts and law school professors. Due to the prestige of the publisher and the careful drafting process, many courts find Restatements persuasive authority.  Many law professors rely on Restatements as the definitive source of “black letter” law.

Who and How are the Restatements Created?  The Restatements of the Law are published by American Law Institute (ALI), an independent organization founded in 1923.  Members of ALI are elected from the legal community and are prominent American judges, lawyers, and professors.  The drafting process for a particular Restatement title is painstaking and can take 10 to 20 years.  ALI committees examine cases, identify common law trends, and translate their findings into legal principles or restatement rules. The result is a scholarly works that clarifies, modernizes, and otherwise improve the law.

How are Restatements OrganizedRestatements cover broad areas of law, such as Torts or Agency.  Not every legal subject is covered by the Restatements, a complete list of subjects covered is maintained by the publisher, American Law Institute.

Each volume of the Restatements is organized into chapters. Each chapter is then organized into titles. Each title is divided into sections. Each section contains a concisely stated rule of law, often with comments and illustrations. The comments and illustrations are used to clarify the rule, provide explanations of the rule’s purpose, and define major exceptions to the rule. Each Restatement volume has an index. There is also a comprehensive index covering the Restatements of the Laws, First. ALI will also publish a comprehensive index covering the Restatements of the Laws, Second upon its completion.

How are Restatements Used in Legal Practice? Lawyers use Restatements for a variety of purposes. Restatements are used to support a legal argument which is not been addressed by the courts in a particular jurisdiction.  Restatements are used to support a legal argument which has not been addressed by the court in a particular jurisdiction. Restatements are used to identify relevant key cases in a particular jurisdiction. Restatements are used to gain an understanding of the policies which underline the rule of law.  It is important to note that not all Restatements are the same. Some are cited more frequently than others.  Similarly, not all courts treat Restatements the same way. Lawyers are cautioned to understand how the courts in your jurisdiction received and interpret a particular Restatement prior to its use.

The Ohio Supreme Court held that assumption-of-risk principles limit the snowboarder’s liability “unless it can be shown that the other participant’s actions were either reckless or intentional as defined in 2 Restatement of the Law, Second, Torts, Section 500 (1965)  and 1 Restatement of the Law, Second, Torts, Section 8A (1965).” Horvath v. Ish, 134 Ohio St. 3d 48, 2012-Ohio-5333 ¶19 (2012). ALI  notes portions of the Restatement of the Law, Second, Torts are superseded by the Restatement of the Law, Third, Torts.