Tortious Interference: Judicial Application of the Third Restatement
American Bar Association
In this article, Brian Hill and Robert Cetrino* argue that the Third Restatement revolutionizes how courts should approach claims for tortious interference, and examine how judges are applying the new guidelines in practice. Tortious interference, long considered a "peculiar" tort in business law, recently received a makeover from the American Law Institute. 3 Dan B. Dobbs, et al., The Law of Torts 500 (2d ed. 2011). Released in 2020, the Restatement (Third) of Torts: Liability for Economic Harm institutes a dramatic evolution in tortious interference from the Restatement (Second) of Torts. The authors review these changes and identify some of the issues courts have recently encountered in applying sections 17 and 18 of the Third Restatement. They examine cases that address various elements of sections 17 and 18 of the Third Restatement, including the new heightened standards for liability and the rules that apply in unique situations where the defendant interferes with the defendant's own contract or the plaintiﬀ's performance of a contract. The authors conclude that the lack of judicial opinions citing the Third Restatement suggests that courts are only beginning to wrestle with its signiﬁcant departures from the Second Restatement. Practitioners should keep an eye out in the coming years to see whether courts adopt the Third Restatement's approaches or continue to apply the Second Restatement's tests.