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Complete subject outline

Torts outline for the bar exam

This outline covers Torts in the order the exam tends to test it: intentional torts and their defenses, negligence broken into duty, breach, causation and damages, strict and products liability, and then defamation, privacy and nuisance. Each module lists the propositions to memorize, an attack sequence, the traps and exceptions, and a short worked application. The MBE asks 25 scored questions on Torts and the MEE tests it too, and negligence questions usually turn on one element, so the outline flags which element each trap targets. Use it as the continuous reference once you have made a first pass through the rule bank by unit. Keep a list of the strict liability categories close, since the exam expects you to recognize them from the facts alone, without the category ever being named for you in the call of the question.

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Torts outline coverage by unit
UnitModulesPropositions
Intentional torts210
Privileges213
Negligence215
Special duties15
Breach and proof15
Causation210
Damages and defenses16
Responsibility for others15
Strict liability15
Products212
Reputation and privacy15
Land interference and economic torts15
Duty16
Land occupiers16
Intangible injuries16
Economic loss16
Apportionment16
Defenses16
Defamation18
Privacy18
Business torts16
Liability for others16
Negligence and misrepresentation110
01 · Intentional torts

Intent, battery, assault, and transferred intent

Intentional tort liability begins with purpose or substantial certainty and the elements of the particular protected interest.

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Black-letter propositions

  1. Intent is desire for the consequence or knowledge it is substantially certain; motive and hostility are unnecessary.
  2. Battery is intentional harmful or offensive contact with the plaintiff's person, including closely connected objects.
  3. Assault is intentional creation of reasonable apprehension of imminent harmful or offensive contact.
  4. Transferred intent traditionally moves among battery, assault, false imprisonment, trespass to land, and trespass to chattels.
  5. A child or person with mental incapacity can form tort intent even if unable to appreciate wrongfulness.

Attack sequence

1Identify actor's purpose or substantial certainty.

2Name protected interest and every element.

3Test imminence and apparent ability for assault.

4Apply transferred intent and damages.

Traps and exceptions

!Words alone can negate or create imminence depending on context.

!Fear is not required; apprehension means anticipation.

!Unexpected sensitivity does not control offensiveness unless known.

WORKED APPLICATION

D throws a stone to scare A, misses, and hits B.

D's assault intent toward A transfers to support battery liability to B if contact was harmful or offensive.

Essay-ready formulationIntent means purpose or substantial certainty, and qualifying intent can transfer among the traditional trespassory torts.
02 · Intentional torts

Confinement, emotional distress, and property torts

False imprisonment, IIED, trespass, chattel interference, and conversion protect movement, emotional security, possession, and dominion.

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Black-letter propositions

  1. False imprisonment requires intentional confinement within boundaries, no reasonable escape, and awareness or harm.
  2. IIED requires extreme and outrageous conduct intentionally or recklessly causing severe emotional distress, with special sensitivity and relationship factors.
  3. Trespass to land requires intentional physical invasion of another's possessory interest; mistake is no defense to entry.
  4. Trespass to chattels requires interference causing actual damage, dispossession, or loss of use.
  5. Conversion is serious dominion justifying payment of full value, assessed by extent, duration, harm, and bad faith.

Attack sequence

1Identify protected interest and possession.

2For confinement, map boundaries and escape.

3For IIED, assess conduct, culpability, severity, and causation.

4For chattels, distinguish actual damage from serious dominion.

Traps and exceptions

!Mere insults usually are not IIED absent aggravating circumstances.

!A land trespasser need not know the land belongs to another.

!Conversion remedy resembles a forced sale and should be reserved for serious interference.

WORKED APPLICATION

A mechanic refuses to return a customer's car for months despite payment and repeatedly uses it personally.

The lengthy intentional dominion is serious enough for conversion, allowing recovery of full value, rather than only trespass-to-chattels damages.

Essay-ready formulationIntentional tort classification follows the protected interest and seriousness of interference, not a generic label of wrongdoing.
03 · Privileges

Consent, self-defense, property defense, necessity, and authority

Intentional conduct is privileged only within the consent, proportionality, mistake, and scope rules of the asserted defense.

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Black-letter propositions

  1. Consent may be express, apparent, or implied by custom, but is limited by capacity, fraud about an essential matter, duress, public policy, and scope.
  2. Self-defense permits reasonably necessary force against imminent tortious force; reasonable mistake is generally allowed.
  3. Defense of others follows reasonable appearance in modern law.
  4. Reasonable nondeadly force can protect property after demand when feasible; deadly mechanical devices cannot protect property alone.
  5. Public necessity is a complete defense to property torts; private necessity is incomplete and requires payment for actual damage while preserving a privilege to remain.
  6. Legal authority protects reasonable conduct within official privilege.

Attack sequence

1Identify triggering threat or permission.

2Classify force or invasion.

3Test subjective and objective reasonableness.

4Check scope and mistake.

5State complete or incomplete defense and damages.

Traps and exceptions

!Consent to one act is not consent to a substantially different act.

!An initial aggressor must withdraw or face escalation before reclaiming defense.

!Private necessity defeats ejectment but not compensation for actual harm.

WORKED APPLICATION

A boater ties to a private dock during a sudden life-threatening storm and damages it.

Private necessity privileges use of the dock, so the owner cannot eject the boater during danger, but the boater must pay actual damage.

Essay-ready formulationPrivileges require consent or reasonable necessity within scope and often determine both liability and whether damages remain payable.
04 · Negligence

Duty and the reasonable person

Negligence requires duty, breach, actual and proximate cause, and damages, with the reasonable-person standard adjusted only through recognized rules.

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Black-letter propositions

  1. A person generally owes reasonable care to foreseeable plaintiffs for risks created by conduct.
  2. The reasonable person has like physical characteristics but not ordinary mental deficiency; superior knowledge or skill is considered.
  3. Children use a same-age, intelligence, and experience standard unless engaged in a dangerous adult activity.
  4. Professionals use the skill and knowledge of similar practitioners, with informed-consent duties in medical settings.
  5. Negligence per se can establish duty and breach when a safety statute protects this class of person from this type of harm, subject to excuses.

Attack sequence

1Identify conduct and foreseeable zone.

2Choose general, child, professional, or statutory standard.

3State breach facts separately.

4Then complete cause and damages.

Traps and exceptions

!Foreseeability can appear in duty and proximate cause but performs different work.

!Custom is evidence, not conclusive, unless law says otherwise.

!A statutory violation outside the protected class or harm does not establish negligence per se.

WORKED APPLICATION

A 13-year-old drives a full-size motorboat and injures a swimmer.

Operating dangerous motorized equipment is an adult activity, so the child is judged by the ordinary reasonable-person standard, not the flexible child standard.

Essay-ready formulationNegligence duty uses reasonable care tailored by recognized child, physical-disability, professional, and safety-statute doctrines.
05 · Special duties

Omissions, rescue, relationships, land entrants, and emotional harm

No general duty to rescue exists, but creation of risk, undertaking, relationships, land control, and defined emotional-harm rules create affirmative duties.

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Black-letter propositions

  1. A person who creates danger, begins rescue, or has a special relationship must use reasonable care within the duty.
  2. Rescuers are foreseeable and may recover unless conduct is wanton; professional-rescuer limits vary.
  3. Land possessors owe duties based on entrant status under traditional law or reasonable care under modern unitary law, with special rules for known trespassers and attractive nuisances.
  4. Negligent infliction of emotional distress commonly requires zone of danger or close-relative bystander elements, though mishandling remains and erroneous death messages can be exceptions.
  5. Duties to control or warn about third persons generally require a special relationship and foreseeable victim or risk.

Attack sequence

1Start with general no-duty rule for omission.

2Identify creation, undertaking, relationship, or premises source.

3Classify entrant and jurisdictional approach.

4For emotional harm, choose direct-risk, bystander, or special-case route.

Traps and exceptions

!A rescuer's contributory fault is not assumed from entering danger.

!A landowner is not an insurer of entrant safety.

!Foreseeable crime alone may not create a duty without control or relationship.

WORKED APPLICATION

A shopkeeper begins helping an unconscious customer, then abandons her in a more dangerous position.

Even if no initial duty existed, the undertaking creates a duty of reasonable care and liability for increasing risk or inducing reliance.

Essay-ready formulationAffirmative duties arise from risk creation, undertaking, relationship, control, premises status, or a recognized emotional-harm category.
06 · Breach and proof

Risk balancing, custom, res ipsa, and multiple actors

Breach asks whether conduct fell below the applicable standard, using direct proof or permissible circumstantial inference.

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Black-letter propositions

  1. Risk balancing considers probability and gravity of harm against burden and utility of precautions.
  2. Industry custom is relevant but not conclusive; a whole industry can be negligent.
  3. Res ipsa loquitur permits an inference when the event ordinarily does not happen without negligence, responsible causes including plaintiff are sufficiently eliminated, and negligence falls within defendant's duty.
  4. Multiple defendants can sometimes be addressed through alternative liability when all acted negligently, one caused harm, and uncertainty is not the plaintiff's fault.
  5. Mode-of-operation and recurring-risk rules may affect premises proof under local law.

Attack sequence

1State the untaken precaution.

2Compare risk and burden using facts.

3Use custom or statute as evidence where appropriate.

4If no direct proof, test every res ipsa element.

5Address allocation among multiple actors.

Traps and exceptions

!An accident alone does not prove negligence.

!Res ipsa usually creates an inference, not automatic liability.

!Exclusive control is functional and need not mean literal uninterrupted custody.

WORKED APPLICATION

A surgical instrument is left inside an unconscious patient after a team procedure.

This ordinarily does not occur without negligence, the patient did not contribute, and the responsible actors controlled the process. Res ipsa or team-liability principles can permit an inference.

Essay-ready formulationBreach requires a specific unreasonable precaution failure or a justified circumstantial inference such as res ipsa loquitur.
07 · Causation

Actual cause, multiple causes, and loss of chance

Actual cause connects breach to injury through but-for, multiple-sufficient-cause, or other jurisdictionally recognized proof.

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Black-letter propositions

  1. But-for cause asks whether harm would have occurred absent the breach.
  2. When multiple forces are independently sufficient at the same time, each can be treated as factual cause.
  3. Alternative liability can shift proof when all defendants were negligent and one caused harm.
  4. Loss-of-chance doctrine in some medical cases permits recovery for reduced survival probability under specified rules.
  5. Toxic and probabilistic injuries require reliable general and specific causation evidence.

Attack sequence

1Identify exact injury and counterfactual.

2Test but-for cause.

3If overdetermined, use multiple-sufficient-cause analysis.

4Consider burden-shifting doctrines.

5Keep actual and proximate cause separate.

Traps and exceptions

!Substantial factor is not a free-floating substitute whenever but-for proof is hard.

!Increasing risk does not always establish factual cause.

!Alternative liability requires all likely tortfeasors before the court under traditional doctrine.

WORKED APPLICATION

Two negligently set fires merge, and either alone would have destroyed the house at the same time.

Each fire is a multiple sufficient cause despite failure of literal but-for logic, so both actors can be factually responsible.

Essay-ready formulationActual causation normally uses but-for analysis but adapts for multiple sufficient causes and narrowly defined uncertainty doctrines.
08 · Causation

Proximate cause, intervening forces, and eggshell injuries

Proximate cause limits liability to harms within the risks that made conduct negligent, subject to intervening and plaintiff-vulnerability doctrines.

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Black-letter propositions

  1. Foreseeable type of harm and plaintiff generally remain within scope even when manner or extent is unusual.
  2. Responsive rescue, medical negligence, disease, and ordinary negligence are often foreseeable interventions.
  3. Extraordinary intentional or criminal acts can supersede unless the duty was designed to guard against them.
  4. The eggshell-plaintiff rule imposes liability for unforeseeable extent once the type of personal injury is foreseeable.
  5. Rescue doctrine treats danger as inviting rescue and can link rescuer injury to the original tortfeasor.

Attack sequence

1Define risks that made conduct negligent.

2Match actual harm to those risks.

3Classify intervention as responsive, coincidental, intentional, or extraordinary.

4Apply eggshell only to extent, not type.

5Analyze each plaintiff separately.

Traps and exceptions

!Unforeseeable severity does not cut off damages.

!Criminal conduct is not automatically superseding.

!A coincidental force can supersede when unrelated to the risk.

WORKED APPLICATION

A negligently injured patient receives ordinary negligent treatment that worsens the same injury.

Medical negligence is a foreseeable response, so the original actor remains liable for the aggravated harm, though the provider can also be liable.

Essay-ready formulationProximate cause covers harms within the negligent risk, ordinarily including rescue and medical response, and takes a physically vulnerable plaintiff as found.
09 · Damages and defenses

Compensatory damages, mitigation, comparative fault, and assumption of risk

Tort damages compensate proven losses, while plaintiff fault and consensual risk can reduce or bar recovery under the jurisdiction's system.

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Black-letter propositions

  1. Personal-injury damages include reasonable medical expense, lost earning capacity, pain and suffering, and future loss proved with reasonable certainty.
  2. The plaintiff must mitigate reasonably but need not undergo unduly risky treatment.
  3. Pure comparative fault reduces recovery by percentage; modified systems bar recovery at the stated threshold; contributory negligence can bar subject to exceptions.
  4. Express assumption of risk requires a valid agreement covering the risk and is limited by public policy.
  5. Implied assumption often merges with comparative fault and requires knowing voluntary encounter with a specific risk.
  6. Collateral-source and avoidable-consequences rules apply as specified.

Attack sequence

1List each past and future loss.

2Prove cause and certainty.

3Identify mitigation opportunity.

4Choose fault regime and allocate percentages.

5Analyze express and implied risk separately.

Traps and exceptions

!Eggshell damages differ from avoidable consequences.

!General awareness of danger is not necessarily informed assumption of the specific risk.

!A release may not cover gross or intentional wrongdoing.

WORKED APPLICATION

A plaintiff unreasonably refuses a safe routine procedure that would prevent half of future loss.

The plaintiff can recover initial harm but not the portion reasonably avoidable through the procedure, assuming safety and efficacy are proven.

Essay-ready formulationTort damages compensate caused and reasonably certain loss, reduced by avoidable consequences and the jurisdiction's comparative-fault and risk rules.
10 · Responsibility for others

Vicarious liability, independent contractors, and contribution

One person may answer for another's tort through employment, agency, enterprise, or joint-responsibility doctrines.

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Black-letter propositions

  1. An employer is vicariously liable for employee torts within scope, including work assigned or conduct intended partly to serve employer.
  2. Commutes and major personal frolics are usually outside scope; minor detours may remain within it.
  3. Intentional torts can be within scope when job-related force, friction, or employer purpose is present.
  4. Hiring parties generally are not vicariously liable for independent contractors, subject to nondelegable duties, peculiar risk, apparent agency, and negligent selection or supervision.
  5. Joint tortfeasor contribution and indemnity depend on comparative responsibility, agreements, vicarious status, and local law.

Attack sequence

1Classify employee or contractor.

2Identify tort and scope factors.

3Test contractor exceptions and direct negligence.

4Allocate joint liability, contribution, and indemnity.

Traps and exceptions

!Calling a worker contractor does not control the right-to-control test.

!An employee's forbidden act can still be within scope.

!Vicarious liability does not erase the employee's own liability.

WORKED APPLICATION

A delivery driver takes a two-block personal detour and negligently hits a pedestrian while returning to the route.

The minor detour likely remains within employment scope, making the employer vicariously liable along with the driver.

Essay-ready formulationVicarious liability depends on worker status and scope, while independent-contractor exceptions and direct employer negligence require separate analysis.
11 · Strict liability

Animals and abnormally dangerous activities

Strict liability attaches to specified animal risks and abnormally dangerous activities without requiring proof of negligent care, but cause and scope of risk remain essential.

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Black-letter propositions

  1. Possessors of wild animals are strictly liable for harm characteristic of dangerous propensity.
  2. Domestic-animal liability traditionally requires knowledge of the particular animal's dangerous tendency, subject to statutes.
  3. Trespassing livestock rules vary but often impose strict liability for physical intrusion.
  4. Abnormally dangerous activity considers high unavoidable risk, severe harm, uncommon usage, place appropriateness, and community value.
  5. Strict liability reaches only harm flowing from the characteristic risk and is subject to knowing assumption of risk and comparative-fault rules as provided.

Attack sequence

1Classify animal or activity.

2Identify characteristic danger and knowledge if required.

3Apply all activity factors.

4Connect harm to the strict-liability risk.

5Address defenses and damages.

Traps and exceptions

!Strict liability is not absolute liability for unrelated harms.

!Ordinary contributory negligence may not bar, while knowing encounter can.

!Common usage depends on the community and location.

WORKED APPLICATION

A blasting operation frightens a mink into killing its own young.

Even if blasting is abnormally dangerous, the unusual animal reaction may fall outside the characteristic risk that makes blasting subject to strict liability; negligence remains separate.

Essay-ready formulationStrict liability covers characteristic animal or abnormally dangerous risks but still requires legal causation and harm within the reason for strict treatment.
12 · Products

Manufacturing, design, warning, warranty, and defenses

Commercial suppliers can be strictly liable for a defective product causing foreseeable injury, with defect type and jurisdictional design test controlling.

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Black-letter propositions

  1. Manufacturing defect means deviation from intended design.
  2. Design defect commonly uses consumer expectation, risk-utility, or a reasonable-alternative-design formulation.
  3. Warning defect requires inadequate warning of nonobvious foreseeable risk; sophisticated users, learned intermediaries, and obvious risks can matter.
  4. Commercial sellers in the distribution chain can be liable even without negligence; casual sellers generally are not.
  5. Defect must exist when leaving defendant control and cause injury during foreseeable use or misuse.
  6. Comparative fault, assumption, substantial alteration, federal preemption, and disclaimers have doctrine-specific effects.

Attack sequence

1Identify product, claimant, and each seller.

2Choose manufacturing, design, or warning theory.

3State test and defect evidence.

4Prove control-time defect and foreseeable use.

5Analyze cause, alteration, and defenses.

Traps and exceptions

!A safe alternative is not necessary for every design test unless the governing rule requires it.

!Product misuse can be foreseeable.

!Contract disclaimers generally cannot eliminate personal-injury strict tort liability.

WORKED APPLICATION

One bottle in a properly designed batch explodes because it was filled at triple pressure.

The individual unit deviated from design, supporting a manufacturing-defect claim if the defect existed when it left the supplier and caused injury.

Essay-ready formulationProducts liability requires a specific defect theory, commercial supplier, defect at distribution, foreseeable use, causation, and applicable defenses.
13 · Reputation and privacy

Defamation, privileges, and privacy torts

Defamation protects reputation through false defamatory statements of fact published with the required fault, while privacy torts protect seclusion, identity, and private life.

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Black-letter propositions

  1. Defamation requires defamatory factual meaning, reference to plaintiff, publication, falsity and fault where constitutionally required, and damage or actionable category.
  2. Public officials and public figures must prove actual malice, knowledge of falsity or reckless disregard, for relevant claims.
  3. Private plaintiffs generally need at least negligence for compensatory recovery on public concern and actual malice for presumed or punitive damages absent traditional exceptions.
  4. Truth is a defense; absolute and qualified privileges protect defined settings and interests.
  5. Privacy torts include intrusion on seclusion, public disclosure of private facts, false light, and appropriation of name or likeness, subject to newsworthiness and constitutional limits.

Attack sequence

1Identify exact statement or conduct and audience.

2Separate fact from protected opinion using context and verifiability.

3Classify plaintiff and public concern.

4Choose fault and damage rules.

5Apply privilege or privacy elements.

Traps and exceptions

!Repeating a rumor is publication and does not avoid liability.

!Actual malice does not mean spite.

!Public-record or newsworthy facts can defeat private-facts liability.

WORKED APPLICATION

A newspaper publishes a serious accusation about a mayor while consciously avoiding obvious proof that it is false.

The mayor is a public official and must prove actual malice. Purposeful avoidance of obvious truth can support reckless disregard if shown clearly and convincingly.

Essay-ready formulationDefamation analysis proceeds through factual meaning, publication, plaintiff status, public concern, constitutional fault, damages, and privilege.
14 · Land interference and economic torts

Nuisance, misrepresentation, and interference

Tort law also protects land use and economic interests through doctrine-specific fault, reliance, and privilege rules.

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Black-letter propositions

  1. Private nuisance is substantial and unreasonable interference with use and enjoyment, assessed through gravity, utility, locality, duration, and sensitivity.
  2. Public nuisance is unreasonable interference with a public right; a private plaintiff needs special injury for damages.
  3. Fraud requires material misrepresentation, scienter, intent to induce, justified reliance, actual reliance, and damages.
  4. Negligent misrepresentation commonly requires business-supplied false information, lack of reasonable care, justified reliance, and a limited foreseeable class.
  5. Intentional interference with contract requires knowledge, intentional improper inducement of breach, actual breach or disruption, and damages; prospective advantage has stricter wrongfulness requirements.

Attack sequence

1Identify protected land or economic interest.

2State exact false statement or interference.

3For nuisance, weigh gravity and utility and choose remedy.

4For misrepresentation, prove state of mind and reliance.

5For interference, analyze privilege and impropriety.

Traps and exceptions

!Abnormally sensitive land use may not support nuisance.

!Nonactionable opinion can become fraud when speaker implies hidden facts or superior knowledge.

!Competition can privilege prospective economic interference absent independently wrongful means.

WORKED APPLICATION

A factory's recurring night vibration prevents ordinary neighborhood sleep despite regulatory compliance.

Compliance is evidence but not dispositive. The substantial interference may be unreasonable after balancing gravity, locality, duration, utility, and feasible mitigation.

Essay-ready formulationNuisance and economic torts require their own protected interest, culpability, cause, reliance or interference, defenses, and tailored remedy.
15 · Duty

Unforeseeable plaintiffs and duties to control third parties

A defendant owes a duty of care to plaintiffs within the range of foreseeable risk, and owes no general duty to control another person unless a special relationship or a statute supplies one.

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Black-letter propositions

  1. Palsgraf holds that the risk reasonably to be perceived defines the duty to be obeyed, so a plaintiff outside the range of apprehension cannot sue for a breach of a duty owed to someone else.
  2. The Andrews dissent in Palsgraf treats duty as owed to the world at large, because everyone must refrain from acts that unreasonably threaten the safety of others, and uses proximate cause to limit liability.
  3. Absent a special relationship, a person owes no duty to control the conduct of another or to warn those the other endangers; the special relationship may be with the dangerous person or with the potential victim.
  4. Under Tarasoff, a therapist who determines, or under the standards of the profession should determine, that a patient presents a serious danger of violence to another must use reasonable care to protect the intended victim, and the steps may include warning the victim, notifying police, or others.
  5. Alcohol-provider liability comes mostly from statute: New York gives an injured person a claim against one who unlawfully sells liquor to an intoxicated person, while California bars claims against most social hosts but preserves claims against adults who knowingly serve a person under 21 at their residence.
  6. Some statutes make a parent answerable for a minor's willful misconduct, usually with a dollar cap; California's imputes the misconduct to the parent with custody and control, jointly and severally, up to $25,000 per tort as adjusted.

Attack sequence

1Ask first whether the plaintiff was within the range of foreseeable harm from the defendant's conduct.

2If a third person caused the harm, look for a special relationship with the wrongdoer or with the victim.

3Check for a dram shop, social host, or parental-liability statute before applying common-law duty.

4Test the scope of any duty: was the danger serious, and was the victim identified or readily identifiable?

Traps and exceptions

!A general duty to act reasonably does not create a duty to control someone else's conduct.

!That a crime was foreseeable does not by itself supply the relationship that creates a duty to prevent it.

!A statute can create or erase alcohol-provider liability whatever the common law would say.

WORKED APPLICATION

A guard helps a man board a moving train, and a package the man was carrying falls and explodes, injuring a woman standing far away on the platform.

Under the majority view in Palsgraf, the guard's conduct was not wrongful toward the woman because nothing suggested that the package endangered anyone standing so far off, so she cannot recover for a wrong done to the passenger. Under the dissent's approach, duty would run to her, and proximate cause would decide the case.

Essay-ready formulationState the general rule that no duty exists to control another, name the special relationship or statute that supplies one, then apply foreseeability and the seriousness of the danger to this plaintiff.
16 · Land occupiers

Owners and occupiers of land

A possessor's duty to people on the land depends on the traditional entrant category in most jurisdictions, on ordinary reasonable care in states that have abandoned the categories, and on special statutes and doctrines for children and recreational users.

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Black-letter propositions

  1. The traditional categories are trespasser, who enters without privilege, licensee, such as a social guest privileged by the possessor's consent, and invitee, a business visitor invited for a purpose connected with business dealings; each category carries its own duty.
  2. An invitee is owed ordinary care to avoid injury, which includes reasonable inspection and repair or warning; a licensee is generally owed a warning of known concealed dangers; a trespasser is owed only the duty to refrain from willful or wanton injury.
  3. Rowland v. Christian rejected the rigid categories in California and asks whether the possessor acted as a reasonable person in managing the property in view of the probability of injury; the entrant's status is relevant but not determinative.
  4. Under the attractive nuisance doctrine of Restatement (Second) of Torts section 339, a possessor is liable to trespassing children for an artificial condition if the possessor knows children are likely to trespass, knows the condition poses an unreasonable risk of death or serious harm, the children do not appreciate the risk, the burden of removing it is slight, and the possessor fails to use reasonable care.
  5. The doctrine is applied narrowly and usually excludes common features such as walls, fences, and gates; swimming pools are often outside it unless there is a hidden or latent danger, because children generally understand the risk of drowning.
  6. Recreational-use statutes protect landowners: California Civil Code section 846 says an owner owes no duty to keep premises safe for recreational entry or to warn of hazards, except for willful or malicious failure to guard or warn, entry for a consideration, or express invitation.

Attack sequence

1Identify who was hurt, why the person was on the land, and whether the jurisdiction keeps the entrant categories.

2State the duty owed to that category, or ordinary reasonable care if the jurisdiction abandoned the categories.

3If the plaintiff is a child trespasser, test each element of the attractive nuisance doctrine.

4Check for a recreational-use statute and for its exceptions before applying the common-law duty.

Traps and exceptions

!A social guest is a licensee under the traditional categories, not an invitee, because the visit has no business purpose.

!Common features such as fences and pools rarely qualify as attractive nuisances, and older children appreciate obvious risks.

!A recreational-use statute does not protect an owner who charges for entry or who willfully fails to warn of a known hazard.

WORKED APPLICATION

A contractor leaves a running excavator unlocked at a site next to a playground, knowing that children often cut through the fence, and a six-year-old climbs into the cab and is injured.

The contractor knew that children were likely to trespass, and a running machine poses an unreasonable risk of serious harm that a six-year-old would not appreciate. Locking or removing the key costs almost nothing, so each element of the attractive nuisance doctrine is met.

Essay-ready formulationName the plaintiff's entrant category, state the traditional duty owed, note whether the jurisdiction follows Rowland, and apply the attractive nuisance or recreational-use rule where the facts call for it.
17 · Intangible injuries

Emotional distress, wrongful death, survival, and loss of consortium

Negligence claims for purely emotional harm, for a death, and for loss of a family relationship each carry their own limits on who may sue and what may be recovered.

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Black-letter propositions

  1. States take three main approaches to negligent infliction of emotional distress: most allow it when the distress was reasonably foreseeable, some require the plaintiff to have been in the zone of danger, and a few require some physical injury.
  2. The zone of danger test, which the Supreme Court adopted for claims under the Federal Employers' Liability Act in Gottshall, limits recovery to plaintiffs who sustain a physical impact from the defendant's negligence or are placed in immediate risk of physical impact.
  3. Dillon v. Legg lets a bystander outside the zone of danger recover if distress was foreseeable, weighing whether she was near the scene, whether the shock came from sensory and contemporaneous observance, and whether she and the victim were closely related.
  4. Thing v. La Chusa narrows Dillon to a plaintiff who is closely related to the victim, is present at the scene when the injury-producing event occurs and is then aware that it is causing injury, and suffers serious distress beyond that of a disinterested witness.
  5. Wrongful death is a statutory claim brought by listed survivors, such as a spouse and children, or by the personal representative for them, for their own losses; a survival claim is the decedent's own cause of action, which passes to the estate.
  6. A spouse may recover for loss of consortium when the other spouse is injured, but a child generally cannot recover for loss of a parent's consortium or a parent for a child's, although survivors in a death case may recover for loss of society under the wrongful death statute.

Attack sequence

1Identify the claim: distress alone, death of the victim, or loss of a relationship after a nonfatal injury.

2For bystander distress, apply the jurisdiction's test: zone of danger, Dillon foreseeability, or Thing's three requirements.

3For a death, separate the survivors' wrongful death claim from the decedent's survival claim, and note who owns each.

4For consortium, ask who was hurt, who is suing, and whether the jurisdiction recognizes that relationship.

Traps and exceptions

!Being closely related to the victim is not enough by itself; most tests also require presence and contemporaneous perception.

!A wrongful death claim compensates survivors, while a survival claim recovers the decedent's own pre-death losses.

!Recognizing a spouse's consortium claim does not mean that children or parents may sue for consortium after a nonfatal injury.

WORKED APPLICATION

A mother in her kitchen hears a crash outside, runs to the street, and finds her child lying injured after a driver's negligence, but she did not see or hear the driver hit the child.

Under Thing v. La Chusa, the mother was not present at the scene when the injury-producing event occurred and was not then aware that it was causing injury, so she cannot recover as a bystander. The result is the same in a zone of danger state, because she was never at risk of impact.

Essay-ready formulationIdentify the type of claim, state the jurisdiction's test or the statute, and apply each requirement to the plaintiff's location, awareness, and relationship to the victim.
18 · Economic loss

Pure economic loss and negligent misrepresentation to third parties

Courts hesitate to award tort damages for losses that are purely financial, so recovery usually needs a contract, a special relationship, or an information supplier's intent to reach the plaintiff.

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Black-letter propositions

  1. As a general rule, a tort to the person or property of one party does not make the tortfeasor liable to another merely because the injured party was under a contract with that other; Robins Dry Dock denied charterers recovery for the loss of a ship's use caused by damage to its propeller.
  2. A commercial buyer whose defective product injures only itself, causing purely economic loss, has no tort claim in negligence or strict liability under East River; that claim is a warranty claim, and tort recovery is for damage to other property or for physical injury.
  3. Seely v. White Motor rests the line on the nature of the manufacturer's responsibility: a maker is liable in tort for physical injuries caused by defects but is liable for the level of a product's performance in the buyer's business only to the extent it agreed.
  4. Some courts allow recovery for economic loss without privity when a special relationship exists, weighing the extent the transaction was intended to affect the plaintiff, foreseeability, certainty of injury, closeness of the connection, moral blame, and the policy of preventing future harm.
  5. Courts take three approaches to negligent misrepresentation by auditors: near-privity under Ultramares and Credit Alliance, reasonable foreseeability of reliance, and Restatement (Second) of Torts section 552, which limits liability to a limited group the supplier intends to reach in a transaction it intends to influence.
  6. Fraud is treated more broadly than negligence: California allows an auditor to be liable to reasonably foreseeable third persons for intentional fraud, though it limits negligent misrepresentation liability to section 552 plaintiffs.

Attack sequence

1Ask whether the plaintiff's loss is purely financial, or whether it flows from injury to the plaintiff's own person or property.

2If the plaintiff and defendant had a contract, consider whether the claim is really warranty or contract rather than tort.

3For a stranger to the contract, test the special relationship factors, and note whether the jurisdiction adopts them.

4For a misstatement, identify the approach in force: near-privity, section 552, or foreseeability, and ask whether the plaintiff was in the intended group.

Traps and exceptions

!Damage to the defective product itself is economic loss, but damage to other property is ordinary property damage recoverable in tort.

!A negligent misstatement to a class of unknown investors usually does not create liability under section 552 or near-privity, though fraud may.

!Foreseeable financial harm alone does not create a tort duty to every affected business.

WORKED APPLICATION

A negligent contractor cuts a power line while working for a landlord, and the tenant of a neighboring building loses a week of restaurant sales because the power fails.

The tenant's loss is purely economic, and it has no contract with the contractor. A court that recognizes a special relationship would weigh whether the work was intended to affect the tenant, how foreseeable and certain the loss was, and how closely the conduct connected to it. A court that follows the general rule would deny the claim.

Essay-ready formulationClassify the loss as economic or physical, state the general no-recovery rule, then argue whether a contract, warranty, or special-relationship or section 552 exception applies.
19 · Apportionment

Joint and several liability, contribution, indemnity, and settlement

When several tortfeasors cause one injury, the plaintiff's fault, the rules on joint and several liability, contribution among defendants, and the effect of a settlement decide who pays how much.

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Black-letter propositions

  1. Under joint and several liability, each tortfeasor is liable for the whole indivisible injury, so the plaintiff may collect the full judgment from any one of them; the Multistate Bar Examination assumes joint and several liability and pure comparative fault unless the question says otherwise.
  2. A tortfeasor who pays more than her share may seek contribution from the others in proportion to their fault, which puts the risk of a co-defendant's insolvency on the defendants rather than on the plaintiff; a several-liability jurisdiction instead limits each defendant to its own share.
  3. Contribution is enforced only after a tortfeasor has paid more than her pro rata share and only for the excess, and California's statute denies contribution to a tortfeasor who intentionally injured the plaintiff and to one who is entitled to indemnity from another.
  4. Statutes can modify joint liability: California's Proposition 51 makes each defendant liable for non-economic damages only in proportion to its percentage of fault, while economic damages stay joint.
  5. A good-faith release of one tortfeasor does not discharge the others unless it says so, but it reduces the claim against them, in California by the amount stated or paid, whichever is greater, and in New York by the greatest of that amount or the released tortfeasor's equitable share; a good-faith settlement also bars contribution claims against the settling tortfeasor.
  6. Alternative liability under Summers v. Tice and market share liability under Sindell v. Abbott Laboratories shift the burden to defendants when the plaintiff cannot tell which one caused the harm, and market share liability, which only a handful of states recognize, apportions damages by each defendant's share of the market.

Attack sequence

1Reduce the plaintiff's damages by her own percentage of fault before any allocation among defendants.

2Decide whether the jurisdiction uses joint and several liability, several liability, or a hybrid that treats economic and non-economic damages differently.

3Compute each defendant's share and any contribution claim from the amount actually paid.

4For a settlement, identify whether the release was in good faith, which credit rule applies, and whether contribution against the settling party is barred.

Traps and exceptions

!A jury finding of a defendant's percentage matters for contribution even where the plaintiff may collect everything from one defendant.

!A settlement credit is a dollar figure or share taken off the judgment, not a percentage of fault assigned to the settling party unless the statute says so.

!An intentional tortfeasor generally cannot seek contribution from a negligent co-defendant.

WORKED APPLICATION

Two negligent drivers injure a passenger, and the jury finds the passenger 20 percent at fault, the first driver 50 percent, and the second 30 percent on $100,000 in damages.

The passenger's recovery is reduced to $80,000. In a joint and several jurisdiction she may collect all $80,000 from the first driver, who may then seek $30,000 from the second driver in contribution. In a several-only jurisdiction she may collect $50,000 from the first and $30,000 from the second.

Essay-ready formulationReduce damages by the plaintiff's fault, state whether liability is joint and several, allocate shares for contribution, and account for any settlement credit and good-faith bar.
20 · Defenses

Contributory negligence, last clear chance, and comparative fault variants

A plaintiff's own fault can bar recovery entirely, reduce it proportionally, or bar it only above a threshold, depending on which regime the jurisdiction follows.

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Black-letter propositions

  1. Under contributory negligence, a plaintiff who was negligent at all recovers nothing, even if only 1 percent at fault; Cornell lists Alabama, Maryland, North Carolina, Virginia and the District of Columbia as the jurisdictions that still follow it.
  2. Under last clear chance, a negligent plaintiff may still recover in a contributory negligence jurisdiction if the defendant was the only party able to avoid the harm by reasonable means and failed to do so.
  3. Pure comparative fault reduces the plaintiff's recovery by her percentage of fault and lets her recover even when she is more at fault than the defendant; New York's CPLR 1411 provides that culpable conduct attributable to the claimant does not bar recovery but diminishes damages proportionally.
  4. Modified comparative fault bars a plaintiff whose fault reaches a threshold: under a 50 percent bar she recovers only if her fault is below 50 percent, and under a 51 percent bar she recovers if her fault is not greater than the defendant's, as in New Jersey's statute, which compares her negligence with each defendant's or their combined negligence.
  5. Some statutes combine comparative fault with limits on joint liability: New Jersey lets a plaintiff collect the full amount from a defendant found 60 percent or more responsible and only that defendant's percentage from any defendant less than 60 percent responsible, while Florida enters judgment on each party's percentage of fault, bars a plaintiff more than 50 percent at fault in most negligence actions, and does not use joint and several liability.
  6. Assumption of risk may be express, usually a waiver, or implied; primary assumption of risk means the defendant owed no duty, as in ordinary sport, and secondary assumption of risk is analyzed as comparative fault, and many states have merged implied assumption of risk into comparative fault.

Attack sequence

1Identify the fault regime the question states or the jurisdiction uses before doing any arithmetic.

2Find the plaintiff's percentage of fault and compare it with the threshold, or with the defendants' combined fault where the statute says so.

3Check whether last clear chance is needed, which it is only in a contributory negligence jurisdiction.

4Separate express waivers, primary assumption of risk that defeats duty, and secondary assumption that reduces damages.

Traps and exceptions

!Last clear chance is an exception to contributory negligence, and comparative fault regimes do not need it.

!Under a 50 percent bar a plaintiff who is equally at fault recovers nothing, while under a 51 percent bar she recovers half.

!In a statute that compares the plaintiff with the defendants' combined negligence, do not compare her fault with each defendant separately.

WORKED APPLICATION

A driver, 30 percent at fault, is injured in a collision with a car whose driver is 70 percent at fault, and damages are $100,000.

In a contributory negligence jurisdiction the plaintiff recovers nothing unless last clear chance applies. In a pure or modified comparative jurisdiction she recovers $70,000, because her 30 percent is below every threshold. In a state that reduces damages by fault but bars a plaintiff more than 50 percent at fault, the outcome is the same.

Essay-ready formulationName the regime, apply the plaintiff's percentage of fault to the threshold, state the reduced recovery if any, and consider last clear chance and assumption of risk as separate doctrines.
21 · Products

Products liability: design tests, warranty theories, and federal preemption

A product claim can rest on negligence, strict liability, or the warranties of the Uniform Commercial Code, and federal law can displace some state claims against drug and device makers.

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Black-letter propositions

  1. MacPherson v. Buick held that a manufacturer who negligently makes a product that is dangerous if defective, knowing it will be used without inspection, is liable to the remote user without privity; Greenman then held that a manufacturer is strictly liable in tort when an article placed on the market, to be used without inspection, proves to have a defect that injures a human being.
  2. Barker v. Lull gives design defect two tests: the product fails if it does not perform as safely as an ordinary consumer would expect, or if, on balance, its benefits do not outweigh its risks, and on the risk-benefit test the burden shifts to the defendant once the plaintiff shows the design proximately caused injury.
  3. UCC section 2-313 creates an express warranty from any affirmation of fact or promise that becomes part of the basis of the bargain; section 2-314 implies a warranty of merchantability, including fitness for ordinary purposes, when the seller is a merchant, and serving food or drink for value is a sale; section 2-315 implies a warranty of fitness for a particular purpose when the seller knows the purpose and that the buyer relies on its judgment.
  4. Section 2-316 controls disclaimers: to exclude merchantability the language must mention merchantability and, in a writing, be conspicuous; a fitness disclaimer must be written and conspicuous; expressions like as is exclude all implied warranties; and a buyer who examined the goods as fully as desired has no implied warranty for defects the examination should have revealed.
  5. Section 2-318 has three alternatives on who may sue for breach of warranty: Alternative A covers the buyer's family, household and guests, Alternative B any natural person who may reasonably be expected to use, consume or be affected by the goods and is injured in person, and Alternative C any person, and the seller may not exclude the extension.
  6. Federal preemption can bar state claims: Riegel held the Medical Device Amendments bar common-law claims about the safety or effectiveness of a device with premarket approval; Wyeth v. Levine held FDA approval of a brand-name drug's label is not a complete defense to a failure-to-warn claim; Mensing and Bartlett preempted claims against generic manufacturers that turn on labeling; and Bruesewitz held the vaccine act preempts design-defect claims against vaccine makers.

Attack sequence

1Choose the theory: negligence, strict liability in tort, or a UCC warranty, and note that each has different elements and defendants.

2For design defect, apply the consumer expectations test and the risk-benefit test and note who bears the burden.

3For warranty, identify the type, whether it was effectively disclaimed under section 2-316, and whether the plaintiff is within the state's version of section 2-318.

4For drugs, devices and vaccines, ask whether a federal statute preempts the state claim before analyzing the defect.

Traps and exceptions

!Merchantability and fitness for a particular purpose are different warranties, and only the second depends on the buyer's reliance on the seller's skill.

!A disclaimer that never mentions merchantability, or that is inconspicuous, does not exclude the implied warranty of merchantability.

!Wyeth v. Levine, which allows a claim against a brand-name drug maker, does not control a claim against a generic manufacturer.

WORKED APPLICATION

A buyer tells a hardware clerk that she needs a ladder for roofing work and relies on the clerk's advice. The clerk sells her a light indoor ladder, which collapses under her weight on a steep roof.

The seller had reason to know the particular purpose and that the buyer relied on its skill, so an implied warranty of fitness for that purpose arose under section 2-315. The ladder may be merchantable for indoor use and still breach that warranty, and the seller's disclaimer, if any, must satisfy section 2-316.

Essay-ready formulationState the theory the facts fit, give the elements or the test, apply the section 2-316 disclaimer and section 2-318 beneficiary rules for a warranty claim, and check federal preemption for drug and device cases.
22 · Defamation

Defamation and the First Amendment: public figures, opinion, and privileges

A defamation claim needs a false, unprivileged publication that harms reputation, and the First Amendment sets the fault standard by who the plaintiff is and whether the speech concerns a public matter.

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Black-letter propositions

  1. A public official or public figure must prove actual malice, meaning knowledge that a statement was false or reckless disregard of whether it was false (New York Times v. Sullivan); reckless disregard requires that the defendant in fact entertained serious doubts, and failure to investigate alone does not show it.
  2. Gertz recognizes two kinds of public figures: those with pervasive fame or notoriety, who are public figures for all purposes, and those who voluntarily inject themselves or are drawn into a particular public controversy, who are public figures for a limited range of issues.
  3. A person is not a public figure merely because a matter is of public interest or because the defendant's own conduct publicized her: Time v. Firestone held that a socialite in a widely reported divorce was not one, and Hutchinson v. Proxmire held that receiving federal grants and responding to a defendant's attack did not make the plaintiff one.
  4. A private-figure plaintiff must show at least negligence under Gertz, and where the statement concerns a matter of public concern and the defendant is a media defendant, Hepps puts the burden on the plaintiff to prove falsity.
  5. Milkovich rejects a separate constitutional privilege for opinion; the test is whether the statement is provable as false, so that 'In my opinion Mayor Jones is a liar' is actionable, while a statement of opinion based on disclosed facts that implies no false fact, or rhetorical hyperbole, is not.
  6. Under statutes like California's, libel is a fixed-medium publication that exposes a person to hatred, contempt or ridicule, and libel that is defamatory only through extrinsic facts requires special damages; slander is actionable per se if it charges a crime, imputes a loathsome disease, or injures the person's office, profession, trade or business.
  7. Privileges: statements in legislative, judicial and other official proceedings are absolutely privileged, though California withholds the privilege from knowingly false reports to law enforcement, and a communication made without malice to an interested person is conditionally privileged, so knowledge of falsity defeats the privilege.
  8. A public figure cannot recover for intentional infliction of emotional distress from a parody without showing a false statement of fact made with actual malice (Hustler v. Falwell).

Attack sequence

1Classify the plaintiff as an official, a public figure for all purposes, a limited-purpose public figure, or a private figure.

2Decide whether the statement concerns a matter of public concern and whether it can be proved false.

3Apply the fault standard the classification requires and identify the burden and the level of proof.

4Check for an absolute or qualified privilege and for a retraction or special-damages statute.

Traps and exceptions

!A person does not become a public figure because the defendant or the press paid attention to her.

!Labeling a statement an opinion does not protect it if it implies a provably false fact.

!Actual malice is about the defendant's state of mind about truth, not ill will or a failure to investigate.

WORKED APPLICATION

A newspaper falsely reports that a scientist who received a federal research grant wasted public money. The scientist has never taken part in any public debate about research funding.

Receiving a federal grant and being reported in local news does not make the scientist a public figure, and a defendant cannot create a public figure by publicizing her. She is a private figure who need show only the negligence Gertz requires, and if the matter is one of public concern she must also prove the statement false.

Essay-ready formulationClassify the plaintiff, state the fault and burden rules the classification requires, decide whether the statement is provable as false, and end with privilege or damages rules.
23 · Privacy

Privacy torts, false light, and the right of publicity

Privacy law protects against intrusion, disclosure of private facts, false light and commercial use of a person's identity, and the First Amendment limits liability for publishing truthful information and matters of public concern.

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Black-letter propositions

  1. Invasion of privacy is an umbrella for four claims: intrusion on seclusion, public disclosure of private facts, false light, and appropriation of a person's name or likeness; all rest on an unwelcome or unauthorized intrusion on private life.
  2. Appropriation is a statutory claim in states like California: a person who knowingly uses another's name, voice, signature, photograph or likeness on products or in advertising or selling without prior consent is liable for the greater of $750 or actual damages plus attributable profits, and punitive damages and attorney's fees are available.
  3. A use in connection with news, public affairs, sports broadcasts or accounts, or a political campaign does not require consent under California's statute, and the presence of paid advertising in the medium does not by itself make a use commercial.
  4. The Supreme Court held in Zacchini that the First Amendment does not immunize the news media from liability for broadcasting a performer's entire act without consent.
  5. Time v. Hill held that the Constitution precludes applying a false-light style statute to false reports of matters of public interest absent proof that the defendant published with knowledge of falsity or in reckless disregard of the truth.
  6. A state may not impose liability for truthful publication of information from public records or lawfully obtained on a matter of public significance unless a state interest of the highest order requires it: Cox Broadcasting protected a victim's name taken from open court records, and Florida Star protected a name lawfully obtained from a police report.
  7. Bartnicki held that a stranger's illegal interception of a communication does not remove the First Amendment shield from publication of that communication on a matter of public concern by someone who did not take part in the interception.
  8. California also makes a person liable for physical invasion of privacy, by entering land without permission to capture an image or recording of a private, personal or familial activity in a manner offensive to a reasonable person, and for constructive invasion using a device to capture what could not otherwise be captured.

Attack sequence

1Name which of the four privacy claims is at issue and state its elements.

2Ask whether the information came from a public record or was lawfully obtained and whether it concerns a public matter.

3For false light or a false report, ask whether the matter is of public interest and whether the defendant acted with knowledge or reckless disregard.

4For commercial use, check the consent requirement and the exception for news, public affairs and political uses.

Traps and exceptions

!A truthful publication can still support an intrusion claim if the information was gathered by an offensive intrusion, but publication of lawfully obtained truthful information on a public matter is protected.

!Advertising in a magazine article does not make the article an appropriation unless the use of the person's likeness is directly tied to the advertising.

!The right of publicity does not protect a person from news use of a name or likeness.

WORKED APPLICATION

A gym prints a local yoga instructor's photograph on a flyer advertising a new class package, without asking her, after she posted the photo online.

The gym used her likeness for advertising without her prior consent, so a statute like California's makes it liable for the greater of $750 or her actual damages plus profits attributable to the use, and attorney's fees to a prevailing plaintiff. Posting the photo online does not amount to consent to commercial use.

Essay-ready formulationIdentify the privacy claim, state its elements or the statutory rule, then test the constitutional limits: public record, lawful acquisition, public concern, and actual malice for false reports.
24 · Business torts

Interference with business relations, malicious prosecution, and abuse of process

A defendant who wrongfully and intentionally disrupts a plaintiff's contracts or business prospects, or who misuses legal process, can be liable in tort, but each claim has its own elements and protects legitimate competition and access to the courts.

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Black-letter propositions

  1. Intentional interference with contractual relations requires a valid contract between the plaintiff and a third party, the defendant's knowledge of it, the defendant's intentional acts designed to induce a breach or disruption, an actual breach or disruption, and resulting damage; a stranger to the contract may be liable.
  2. Interference with prospective economic advantage protects the same interest in stable economic relationships but does not require a legally binding contract, and in California the plaintiff must also prove that the defendant's conduct was wrongful by some measure other than the interference itself.
  3. A plaintiff need not always prove an actual breach: interference that makes performance of the contract more costly or burdensome may be enough, and inducing a party to terminate a contract according to its own terms may be actionable.
  4. When the interference consists of inducing another to sue on a colorable claim, the plaintiff must allege that the litigation was brought without probable cause and ended in the plaintiff's favor, so the interference claim cannot sidestep the requirements of malicious prosecution.
  5. Malicious prosecution requires that the prior action was commenced by or at the direction of the defendant and pursued to a legal termination in the plaintiff's favor, was brought without probable cause, and was initiated with malice; probable cause is judged objectively, and a legally tenable prior action defeats the claim however little research preceded it.
  6. Abuse of process requires that the defendant misused legal process, for example to extort, harass or threaten the plaintiff, and it may lie even when the underlying action was properly brought.

Attack sequence

1Identify the plaintiff's interest: an existing contract, a business expectancy, or freedom from a baseless or misused lawsuit.

2For interference, check knowledge, intent to disrupt, a breach or disruption, damage, and for prospective advantage, a wrongful act.

3For a lawsuit-based claim, ask whether the prior action ended in the plaintiff's favor and whether it was objectively tenable.

4Separate malicious prosecution, which attacks the filing of a baseless suit, from abuse of process, which attacks the misuse of process for an improper end.

Traps and exceptions

!Ordinary competition is not enough for interference with prospective advantage; the defendant's conduct must be wrongful by some other measure.

!A malicious prosecution claim cannot be brought while the underlying action is still pending, because favorable termination is an element.

!A lawsuit that had probable cause cannot support malicious prosecution even if the plaintiff filed it for a bad motive; abuse of process may still be available.

WORKED APPLICATION

A rival electrician knows that a homeowner has signed a contract to have Dana rewire her house. The rival lies to the homeowner that Dana is unlicensed, and the homeowner cancels the contract.

Dana can show a valid contract, the rival's knowledge of it, intentional acts designed to induce a breach, an actual disruption, and damage. The lie is a wrongful act independent of the interference itself, so the claim for interference with contractual relations should succeed, and Dana may also have a claim for defamation.

Essay-ready formulationName the interference tort that fits, list its elements, apply them to each act of the defendant, and address any privilege for competition or any lawsuit-based limit on the claim.
25 · Liability for others

Employee status, nondelegable duties, and statutory owner liability

Beyond ordinary respondeat superior, liability for another's tort turns on whether the worker is an employee, on duties that cannot be delegated, on the hirer's own negligence, and on statutes that make owners answerable for permissive users.

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Black-letter propositions

  1. Respondeat superior makes an employer liable for an employee's torts within the scope of employment, without regard to the employer's care; it does not apply to independent contractors, and courts weigh factors such as control over the details of the work, whether the worker has a distinct business, who supplies tools, and whether pay is by the job or by time.
  2. Jurisdictions test scope with a benefits test, under which an employer is liable for harm from an employee's after-hours activity on its premises that it permitted and that conceivably benefits it, or a characteristics test, under which the employer is liable if the conduct is characteristic of the job.
  3. A person who hires an independent contractor is usually not vicariously liable for the contractor's torts, but remains liable for the hirer's own negligence in selecting the contractor and for harm caused by orders or directions the hirer negligently gave.
  4. Some duties are nondelegable, so the hirer stays liable for the contractor's negligence: inherently dangerous activities, duties arising from a relationship with a specific plaintiff or the public, a storekeeper's or landowner's duty to keep premises open to the public reasonably safe for invitees, and in a minority of jurisdictions duties to comply with state safety statutes.
  5. Under the peculiar risk doctrine, a person who hires a contractor for inherently dangerous work can be liable when the contractor's negligence injures others, but California, in Privette, refuses to extend the doctrine to the contractor's own employees, who have workers' compensation.
  6. Statutes can impose liability on an owner for permissive users: California's Vehicle Code makes an owner liable for negligent operation by anyone using the vehicle with the owner's permission, limits liability that does not arise from an agency or employment relationship to $15,000 per person, $30,000 per accident and $5,000 for property, excludes punitive damages for the driver's conduct, and lets the owner recover from the operator what the owner pays.

Attack sequence

1Classify the actor as an employee or an independent contractor using the control factors, and note who supplied tools and how pay was set.

2If an employee, ask whether the tort was within the scope of employment under the jurisdiction's test.

3If a contractor, look for the hirer's own negligence, an inherently dangerous activity, or another nondelegable duty.

4For vehicle owners, check whether a permissive-use statute applies and what cap it sets.

Traps and exceptions

!A worker's own label as an independent contractor does not control; the substance of control and the other factors do.

!A nondelegable duty makes the hirer liable for the contractor's negligence, which is different from the hirer's own negligence in choosing the contractor.

!An owner's statutory liability for a permissive driver is often capped and does not reach punitive damages.

WORKED APPLICATION

A store hires a cleaning company to mop its floors, and the company's worker leaves a wet spot without a warning sign. A customer slips and is injured.

The store owes its customers, who are invitees, a duty to keep the premises reasonably safe, and that duty is nondelegable. The store therefore answers for the cleaning company's negligence even though the company is an independent contractor and the store did nothing wrong in choosing it.

Essay-ready formulationClassify the worker, apply the scope test if an employee, and if a contractor, identify the hirer's own negligence or the nondelegable duty or statute that nonetheless makes the defendant liable.
26 · Privileges

Privileges of authority and necessity: arrest, merchants, family defense, and incomplete privilege

Conduct that would be a battery, false imprisonment or trespass may be privileged when the law authorizes it, but each privilege has limits on who may act, what force is allowed, and what must still be paid.

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Black-letter propositions

  1. A private person's power to arrest is narrower than a police officer's; California Penal Code section 837 allows a private person to arrest for a public offense committed or attempted in his presence, for a felony that was in fact committed even if not in his presence, and for a felony he has reasonable cause to think the arrested person committed once a felony has in fact been committed.
  2. A merchant may detain a person for a reasonable time, in a reasonable manner, to investigate when the merchant has probable cause to believe the person took or tried to take merchandise, and may use a reasonable amount of nondeadly force to protect himself and prevent escape; detention that is unreasonable in length or manner is false imprisonment.
  3. A person may use necessary force to protect the person or property of oneself or of a family member or other listed person, but deadly force may not be used to protect property alone, and a spring gun or similar device is not privileged where the owner could not use the same force in person (Katko v. Briney).
  4. California Penal Code section 692 allows lawful resistance to the commission of a public offense by the party about to be injured or by other parties, so a bystander may act to prevent a crime.
  5. Public necessity is a complete privilege to interfere with private property to protect the community from a greater harm, and the actor is not liable for damages.
  6. Private necessity privileges an entry or use of another's property to protect oneself or one's property from serious harm, but it is an incomplete privilege: the actor must pay for actual damage, is not liable for nominal or punitive damages, and the owner may not eject the actor while the emergency lasts.
  7. A parent's privilege to discipline a child reaches only reasonable force; California's child-cruelty statute, for example, punishes willful infliction of cruel or inhuman corporal punishment or an injury resulting in a traumatic condition.

Attack sequence

1Identify who acted and what authority the law gives that person: officer, merchant, private citizen, owner, family member, or parent.

2Check whether the facts satisfy the privilege's trigger, such as a public offense in the actor's presence or probable cause of theft.

3Test the force and the duration: was it reasonable, nondeadly if property was the only interest, and no longer than needed?

4For necessity, decide whether the harm avoided was public or private, then ask what damages the actor still owes.

Traps and exceptions

!A private citizen who arrests on a reasonable but mistaken belief that a felony occurred may lose the privilege if no felony in fact occurred.

!A merchant's privilege is limited by reasonable time and manner, and it does not permit deadly force or a lengthy confinement to extract a confession.

!Private necessity excuses the entry but not the damage; public necessity excuses both.

WORKED APPLICATION

During a blizzard, a hiker forces open an unoccupied cabin to survive, burns some of the owner's furniture for heat, and leaves the next morning.

The hiker's entry is privileged by private necessity, since the risk to his life was serious and no less harmful choice existed. The privilege is incomplete, so he must pay for the furniture and any damage to the cabin, but the owner cannot recover punitive or nominal damages for the entry itself.

Essay-ready formulationName the privilege, state its trigger and limits, apply each to the actor's conduct, and finish with the damages the actor still owes if the privilege is incomplete.
27 · Negligence

Negligent infliction of emotional distress: bystander recovery, the zone-of-danger test, and the impact rule

A plaintiff who is not physically injured may recover for negligently inflicted emotional distress only within limits, and jurisdictions use tests such as the zone of danger, under which a person in immediate risk of physical harm may recover, and the bystander tests, which require a close family relationship, presence at the scene, and awareness of the injury as it occurs.

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Black-letter propositions

  1. In the absence of physical injury or impact to the plaintiff, damages for emotional distress are recoverable in California by a bystander only if the plaintiff is closely related to the injury victim, is present at the scene of the injury-producing event at the time it occurs and is then aware that it is causing injury to the victim, and suffers emotional distress beyond that anticipated in a disinterested witness.
  2. A mother who did not see or hear the accident that injured her child, and who learned of it from another child and then came to the scene, cannot recover under the California bystander rule because she was not present when the accident occurred.
  3. In New Jersey a bystander plaintiff must show the death or serious physical injury of another caused by the defendant's negligence, a marital or intimate familial relationship with the injured person, observation of the death or injury at the scene of the accident, and resulting severe emotional distress.
  4. Observing the death or serious injury of another while it occurs is an essential element of the New Jersey claim, and the risk of severe emotional distress is present when the plaintiff observes the accident at the scene, so a plaintiff who watched a child suffer and die can recover although she was never at risk of physical harm herself.
  5. Courts limit recovery for negligent infliction of emotional distress through tests such as the physical impact test, the zone of danger test, and the relative bystander test, in part because an emotional injury is easier to fake than a physical injury.
  6. Under the zone of danger test, recovery for emotional injury is limited to plaintiffs who either sustain a physical impact as a result of the defendant's negligence or are placed in immediate risk of physical harm by that negligence, so those within the zone of danger of physical impact can recover for fright and those outside it cannot.
  7. The zone of danger test was adopted for claims by railroad employees under the Federal Employers' Liability Act as the common-law test with historical support and continuing vitality, and it was followed by 14 jurisdictions at the time.
  8. The relative bystander test, first stated in Dillon v. Legg, rejected the zone of danger test and asked whether the defendant could reasonably have foreseen the plaintiff's distress, considering proximity, direct observation, and the closeness of the relationship.
  9. A defendant's duty to avoid creating a stressful work environment for employees is not recognized under the zone of danger test for emotional injury claims by railroad employees.
  10. Proximity to the accident scene bears on the closeness of the emotional bond and the likelihood of witnessing the event, but a plaintiff who must observe the accident necessarily satisfies a requirement of proximity.

Attack sequence

1Identify the jurisdiction's test: impact, zone of danger, or bystander.

2For a bystander claim, check the family relationship, presence at the scene, and awareness of the injury as it occurs.

3For a zone-of-danger claim, ask whether the plaintiff was in immediate risk of physical harm from the defendant's conduct.

4Ask whether the plaintiff suffered emotional distress beyond that of a disinterested witness.

5State the result and mention the alternative approach of another jurisdiction.

Traps and exceptions

!Arriving at the scene after the accident does not satisfy the California presence-and-awareness requirement.

!A bystander in New Jersey need not have been at risk of harm but must observe the death or serious injury.

!The zone of danger test requires immediate risk of physical harm to the plaintiff, and a bystander watching a relative outside the zone cannot recover under it.

!Tests for negligent infliction of emotional distress differ among states, so the rule to apply depends on the jurisdiction.

WORKED APPLICATION

A mother, in her kitchen, hears a crash outside and runs out to find her child lying injured on the road after a driver struck him. She did not see the impact and was never in the path of the car.

Under the California rule, the mother was not present at the scene when the injury-producing event occurred and was not then aware it was injuring her child, so she cannot recover for bystander distress, and she was outside the zone of danger under that test.

Essay-ready formulationIdentify the test, list its elements, and apply them to the plaintiff's location, awareness, and relationship, noting where jurisdictions differ.
28 · Negligence and misrepresentation

Duty to aid a companion, voluntary rescue, and fraudulent misrepresentation and concealment

There is generally no duty to help a person in peril, but a duty arises from a special relationship such as companions on a common undertaking and a person who does aid must use reasonable care, and fraud requires a false representation or concealment of a material fact made with intent to deceive that does deceive and causes damage, with a seller's known hidden defect treated as actionable concealment.

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Black-letter propositions

  1. Courts have been slow to recognize a duty to render aid to a person in peril, and where such a duty has been found it has been predicated on a special relationship between the parties.
  2. If a defendant with a special relationship knew or should have known of the other person's peril, the defendant is required to render reasonable care under all the circumstances.
  3. Companions on a social venture, engaged in a common undertaking, have a special relationship, and implicit in the undertaking is the understanding that one will render assistance to the other when he is in peril if he can do so without endangering himself.
  4. A companion who knew or should have known that the other was badly injured and unconscious in his car and that no one would find him before morning had an affirmative duty to obtain medical assistance or at least to notify someone of the person's condition and whereabouts.
  5. A person who voluntarily comes to the aid of another must exercise reasonable care, and a jury may find that a person who failed to use reasonable care after voluntarily aiding a victim was a proximate cause of the victim's death.
  6. The essential elements of actionable fraud are a false representation or concealment of a material fact, reasonably calculated to deceive, made with intent to deceive, which does in fact deceive, resulting in damage to the injured party.
  7. A subsisting or ascertainable fact, as distinguished from a matter of opinion or a representation relating to future prospects, must be misrepresented for fraud, and the misrepresentation must generally be definite and specific, with the specificity required depending on the tendency of the statements to deceive under the circumstances.
  8. A vague statement that a business is profitable may be treated as one of fact where the speaker had peculiar knowledge of the facts and knew that the business had lost money, but where the listener knows the speaker lacks knowledge, the statement is obviously a guess or opinion and is not actionable fraud.
  9. Whether a positive representation that a business was a gold mine and a going concern was intended and received as an expression of opinion or as a statement of a material fact may be a question for the jury.
  10. Where a home seller knows of facts materially affecting the value of the property that are not readily observable and are not known to the buyer, the seller has a duty to disclose them, because the distinction between concealment and affirmative representation is tenuous when the nondisclosure is calculated to induce a false belief.

Attack sequence

1For a duty to aid, look for a special relationship such as a common undertaking, and ask whether the defendant knew or should have known of the peril.

2Ask whether the defendant could help without endangering himself.

3If the defendant did aid the plaintiff, ask whether he used reasonable care.

4For fraud, work through the five elements and ask whether the statement was fact or opinion.

5For a seller's silence, ask whether the defect was known, material, and not readily observable.

Traps and exceptions

!A stranger has no general duty to aid, and a duty comes from a special relationship or a voluntary undertaking.

!A statement of opinion or of future prospects is generally not a misrepresentation of fact, unless the speaker has peculiar knowledge that makes it one.

!A vague statement can be treated as fact when the speaker has superior knowledge that contradicts it.

!Concealment of a known hidden defect can be as actionable as an affirmative statement.

WORKED APPLICATION

Two friends spend the evening together, and one is badly beaten and falls unconscious in the back seat of the other's car. The friend drives home, cannot rouse him, leaves him in the car, and does nothing. The injured man dies.

The friends were companions on a common undertaking, so the friend had an affirmative duty to get help or notify someone because he knew or should have known of the peril and could help safely, and his failure to do so may make him liable for the death.

Essay-ready formulationIdentify whether a special relationship creates a duty, apply the reasonable-care standard for aid, and for a misrepresentation claim state the fraud elements and address fact versus opinion and concealment.
QUICK ANSWERS

What NCBE lists for Torts

What does the intentional torts category include?+

Harms to the person and property interests, with defenses to claims for physical harms such as consent and privileges and immunities.

What negligence topics does NCBE list?+

The duty question, the standard of care, proof of fault including res ipsa loquitur, causation, limitations on liability, liability for acts of others, and defenses.

What causation topics are in the outline?+

But-for and substantial causes, harms traceable to multiple causes, and apportionment among multiple tortfeasors, including joint and several liability.

What limitations on liability are listed?+

Remote or unforeseeable causes, proximate and superseding causes, claims against owners and occupiers of land, mental distress without physical harm, and pure economic loss.

Which defenses does the negligence category list?+

Contributory fault including contributory negligence, last clear chance and the forms of comparative negligence, and assumption of risk, under the defenses heading.

What does the strict liability category include?+

Common law strict liability, including abnormally dangerous activities, and products liability claims against manufacturers and other defendants, with defenses.

What does the other torts category include?+

Nuisance, defamation and invasion of privacy, misrepresentation, and intentional interference with business relations, each with defenses.

What liability for acts of others is listed?+

Employees and other agents, and independent contractors and nondelegable duties. NCBE lists them under liability for acts of others within negligence.

SOURCE DESK

Official NCBE sources

NCBE: MBE subject matter outline↗NCBE: preparing for the MBE↗

Governing text

Torts rules are stated most fully in the American Law Institute's Restatements of Torts, which the Institute publishes. Restatements of the Law (American Law Institute) ↗