That's what many have concluded about the Restatement (Third) of Torts: Liability for Physical and Emotional Harm. When one of its reporters co-authored "The New Restatement's Top 10 Tort Tools" for "Trial" magazine the worst fears of those who had fretted that the new Restatement wasn't a restatement at all but rather a stealth effort to unleash new waves of litigation seemed to have been confirmed. Now a new law review article, "Reshaping the Traditional Limits of Affirmative Duties Under the Third Restatement of Torts", by Victor E. Schwartz and Christopher E. Appel, lays out the case.

Especially eye-opening is the discussion of the attempt to impose liability for insufficient risk reduction; and it doesn't just apply to "Bad Samaritans". An affirmative duty of care, the breach of which being a tort, may now be triggered by contracts and promises "which, if [the Restatement is] adopted, would likely [] lead to liability in situations in which a duty has never before been recognized." Of note to insurers is the explicit intention to impose a duty on anyone engaged in risk/loss prevention efforts. Not content with discouraging insurance companies from helping their insureds avoid accidents the Restatement proceeds to make employers think twice before running health screening for its employees to demonstrate they're not at risk of occupational illness.

And how can an insurer or an employer or any would-be Good Samaritan avoid undertaking such duties? It's not clear that they can, write the authors, noting the Reporters' Note to Section 42 tries to cut off Good Samaritans at the pass: "Statements denying an undertaking or about the limited purpose of the inspection must be read skeptically as they are not provisions that are bargained for by adversaries acting at arm's length and often are inserted only to diminish potential liability to third parties who are not parties to the contract."

Schwartz and Appel conclude that "... the new Restatement takes the rule of duty through undertaking in precisely the wrong direction. Public policy should encourage undertakings that help promote public safety and education, and not chill such action through an expansion of duty in tort law." Of course, that assumes that one purpose of the new Restatement was the common good. Oh well.