State courts across the country continue to be guided by the work of The American Law Institute. During the 2022-2023 fiscal year, the highest courts of seven different states—Arizona, Delaware, Idaho, Montana, South Carolina, West Virginia, and Vermont—adopted one or more Sections of the Restatements of the Law.

The Idaho Supreme Court issued two opinions incorporating Sections of two different Restatements into Idaho law. In Gestner v. Divine, 519 P.3d 439 (Idaho 2022), the Idaho Supreme Court expressly adopted Restatement of the Law Third, Property: Wills and Other Donative Transfers § 8.3, under which a presumption of undue influence arises if the alleged wrongdoer is in a confidential relationship with the donor and there are suspicious circumstances surrounding the preparation, formulation, or execution of the donative transfer. In that case, the court found that two adult stepchildren of the settlor of a family trust failed to establish that the settlor’s decision to amend the trust to remove stepchildren as beneficiaries was the result of undue influence.

In Whitham Trustee of Kent G. Whitham and Linda M. Whitham Revocable Trust v. Creamer, 525 P.3d 746 (Idaho 2023), which involved a dispute between a servient-estate owner who installed a French drain to help prevent erosion of a private road easement on his property and the dominant-estate owner who filled the drain in with rocks in the belief that the drain would make it difficult to plow snow from the road, the Idaho Supreme Court adopted Restatement of the Law Second, Torts § 929 for its guidance in calculating damages to restore property to its previous state. The court determined that the servient-estate owner was entitled to recover the full cost to repair the drain and return it to the condition it was in before the dominant-estate owner filled it with rocks, rather than limiting damages to out-of-pocket expenses incurred in installing the drain.

The Delaware Supreme Court was the state court that adopted the most Sections of a single Restatement—§§ 197, 198, and 199 of the Restatement of the Law Second, Contracts—when, in Geronta Funding v. Brighthouse Life Insurance Company, 284 A.3d 47 (Del. 2022), it adopted restitution under a fault-based analysis as framed by those Restatement Sections as the test to determine whether an insurer should return insurance premiums when a party presented a viable legal theory, such as unjust enrichment, and sought the return of paid premiums as a remedy.

The Restatement of the Law Third, Restitution and Unjust Enrichment, was the publication with the most Sections adopted by the highest courts of different state jurisdictions; specifically, the Supreme Court of Appeals of West Virginia adopted § 29 of that Restatement in L&D Investments, Inc. v. Antero Resources Corporation, 887 S.E.2d 208 (W. Va. 2023), and the Vermont Supreme Court adopted § 2 of that Restatement in Beldock v. WVSD, LLC, 2023 WL 4280767 (Vt. June 30, 2023).

During the same fiscal year, courts in 49 states and the District of Columbia cited the Restatements of the Law and Principles of the Law over 1000 times. Pennsylvania state courts had the greatest number of citations to the Restatements and Principles, with 71, followed closely by Delaware state courts, which mentioned the Restatements and Principles 67 times. Seventy-two percent of the state courts that referred to the Restatements and Principles did so on 10 or more occasions. The most cited subject was the Restatements of Torts, which appeared in state-court opinions 462 times, followed by the Restatements of Contracts, which were cited by courts across the country 175 times.


Andrea K. Wooster

The American Law Institute


Submit a Comment

Your email address will not be published. Required fields are marked *