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Tannuzzo, Angelo 9/20/2014

For Educational Use Only

321Duty to Act When Prior Conduct is Found to be Dangerous, Restatement (Second)...

Restatement (Second) of Torts 321 (1965)


Restatement of the Law - Torts
Database updated June 2014
Restatement (Second) of Torts
Division 2. Negligence
Chapter 12. General Principles
Topic 7. Duties of Affirmative Action
Title B. Duty to Aid Others and Services Gratuitously Rendered or Undertaken
321 Duty to Act When Prior Conduct is Found to be Dangerous
Comment:
Reporter's Notes
Case Citations - by Jurisdiction
(1) If the actor does an act, and subsequently realizes or should realize that it has created
an unreasonable risk of causing physical harm to another, he is under a duty to exercise
reasonable care to prevent the risk from taking effect.
(2) The rule stated in Subsection (1) applies even though at the time of the act the actor
has no reason to believe that it will involve such a risk.

See Reporter's Notes.

Comment:
a. The rule stated in Subsection (1) applies whenever the actor realizes or should realize that his
act has created a condition which involves an unreasonable risk of harm to another, or is leading
to consequences which involve such a risk. The rule applies whether the original act is tortious or
innocent. If the act is negligent, the actor's responsibility continues in the form of a duty to exercise
reasonable care to avert the consequences which he recognizes or should recognize as likely to

2014 Thomson Reuters. No claim to original U.S. Government Works.

Tannuzzo, Angelo 9/20/2014


For Educational Use Only

321Duty to Act When Prior Conduct is Found to be Dangerous, Restatement (Second)...

follow. But even where he has had no reason to believe, at the time of the act, that it would involve
any unreasonable risk of physical harm to another, he is under a duty to exercise reasonable care
when, because of a change of circumstances, or further knowledge of the situation which he has
acquired, he realizes or should realize that he has created such a risk.

Illustrations:
Illustrations:
1. A is playing golf. He sees no one on or near a putting green and drives to it. While
the ball is in the air, B, another player, suddenly appears from a bunker directly in the
line of A's drive. A is under a duty to shout a warning to B.
2. A, reasonably believing his automobile to be in good order, lends it to B to use on
the following day. The same night A's chauffeur tells him that the steering gear is in
dangerously bad condition. A could readily telephone B and warn him of the defective
steering gear but neglects to do so. B drives the car the following day, the steering gear
breaks and the car gets out of control, causing a collision with the car of C in which B
and C are hurt. A is subject to liability to B and C.
3. A, carefully driving his truck, skids on an icy road, and his truck comes to rest in
a position across the highway where he is unable to move it. A fails to take any steps
to warn approaching vehicles of the blocked highway. B, driving his automobile with
reasonable care, does not see the truck, skids on the ice and collides with it, and is injured.
A is subject to liability to B.

Reporter's Notes
This Section has been changed from the first Restatement by expanding it to include the duty to
exercise reasonable care to avert the consequences of an act which was originally tortious. This
was inadvertently omitted from the first Restatement.
In support of the duty to avert the consequences of an act which was originally negligent, see
Northern Central R. Co. v. State ex rel. Price, 29 Md. 420, 96 Am.Dec. 545 (1868); Trombley v.
Kolts, 29 Cal.App.2d 699, 85 P.2d 541 (1938); and cf. Whitesides v. Southern R. Co., 128 N.C.
229, 38 S.E. 878 (1901); Ward v. Morehead City Sea Food Co., 171 N.C. 33, 87 S.E. 958 (1916);
Zickefoose v. Thompson, 237 Mo.App. 690, 157 S.W.2d 259 (1941).

2014 Thomson Reuters. No claim to original U.S. Government Works.

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