TORTS TOPIC OUTLINE1 1. INTRODUCTION. MBE.

Always remember that the bar exam is different from law school study. It is very basic, without the fine distinctions that form the basis of discussion in a law school class. It is also different from the practice of law. There is a bias in favor of areas that can actually be tested. One result is that intentional torts are heavily tested. Most Torts teachers spend little time on intentional torts; mine spent one week at the end of a two semester course. Defamation is heavily tested. Statutes are very important in the practice, and some Torts teachers spend a significant amount of time in that area. The MBE is almost completely Common Law. Negligence is about half of MBE Torts. MEE. We only have two past multi-state Torts essays. Both of them are straightforward. The issues they test are: negligence contributory/comparative negligence negligence per se child standard of care proximate cause causation res ipsa alternative causation theories strict products liability joint tortfeasors I suggest two approaches. First, there are only about seven Torts causes of actions; negligence, intentional torts, strict liability, products liability, defamation, nuisance, and privacy torts. Landowner liability used to be a major topic; the modern majority rule is that a landowner/occupier has a duty of reasonable care to people on the land, except trespassers. Organize your study so that you can instantly identify which tort is being tested and the answer will jump out at you on a MBE question, and you can get about half the points on any essay question by completely identifying elements of the tort(s) tested. The second approach uses what I call the spectrum of badness. On
1 Copyright 2007 Daniel Wilson. Unauthorized use is prohibited and will be reported to the appropriate licensing authority. This material is drawn from an analysis of released MBE questions, Colorado bar exam essays, various commercial outlines and David "Jake" Barnes, my torts teacher 1992--93. Revised 2009.

one end of the spectrum is the lowest level of badness in the Defendant, that is the strict liability torts. On the other end of the spectrum is the highest level of badness, intentional torts. In between is negligence. If you can identify the actor's mental state, again the answer will jump out at you. 2. NEGLIGENCE a. elements thereof. b. standards of care. The basic standard of care is referred to in shorthand as reasonable care. My definition, from Jake Barnes, is; An actor has a duty to take reasonable care to avoid creating an unreasonable risk of foreseeable types of harm to foreseeable others. The mental state of the actor is not very important. The standard is objective--what would the hypothetical reasonable person do, not what would this actor do. There are also several special standards of care. If the actor does not meet the standard of care we say he has breached this duty. Breach of the duty of reasonable care equals negligence. Then you must analyze if the negligence is the actual cause and proximate cause of a type of injury the law of negligence recognizes. There is no liability unless the Defendant breaches a duty. There is no liability for negligent acts unless the negligence is a cause of the injury. Even if negligence and causation are established some injuries are not compensable. i. reasonable person ii. physical handicap iii. child iv. professional. Restatement of Torts 2nd 299A v. statute vi. custom vii. emergency viii. common carriers/innkeepers c. ways of showing breach. i. failure to act reasonably ii. negligence per se iii. BPL d. res ipsa. Allows P to survive motion for directed verdict and get to the jury. e. causation--actual cause i. but for ii. substantial factor iii. market share iv. increased risk of harm, followed by the harm v. increased risk of harm, no harm yet vi. two tortfeasors, one harm

vii. enterprise liability f. proximate cause. The opposite of actual cause. There are many but for causes of any injury, but for policy reasons we cut off liability at a certain point. The main test is foreseeability, from Cardoza's decision in Palsgraf. i. Eggshell skull Plaintiff. Foreseeable type of harm. ii. intervening cause. Proximate Cause is frequently tested by intervening cause. An intervening cause is a force which takes effect after the original act of negligence, which is part of the causal chain. If the intervening cause is not foreseeable it becomes a superseding cause, relieving the original actor of liability for injuries that occur after the superseding cause. iii. negligence is always foreseeable. iv. criminal/intentional acts are foreseeable if their possible occurrence is what makes the original act negligent--leaving your keys in the car. v. rescue is foreseeable. g. joint and several liability i. indivisible harm ii. tortfeasors acting in concert iii. Summers v. Tice iv. contribution h. limitations on duty i. duty to rescue ii. emotional distress iii. pure economic loss iv. unborn child v. emotional distress caused by witnessing harm to another person--zone of danger vi. wrongful life i. contributory negligence i. There are some slight differences between negligence by the Defendant and contributory/comparative negligence by the Plaintiff, but for the bar exam they are the same. ii. last clear chance j. comparative i. pure ii. 50/50 iii. 49/51 k. Assumption of risk l. respondeat superior i. employees

ii. independent contractor iii. non-delegable duty iv. ultrahazardous activities m. wrongful death/ survivor statutes n. loss of consortium 3. INTENTIONAL TORTS i. Intentional torts are heavily tested but if you know the elements thoroughly the questions are easy. Intentional torts differ from negligence in two important ways. First, the actor's mental state. He must be acting with the intent to cause the particular harm (There is one exception. The mental state of recklessness suffices for intentional infliction of emotional distress.) Second, in contrast to the squishiness of negligence, the intentional torts have very specific elements. ii. intentional torts against the person a. battery 1 A volitional act done with the intent to cause a harmful or offensive contact with the person of another which causes the harmful or offensive contact, without consent. 2 Actor liable for unforeseeable injuries 3 nominal damages, emotional distress 4 transferred intent. two varieties. Intent for assault and harmful or offensive contact results. Actor intends to batter A and instead batters B. b. assault 1 A volitional act done with the intent to cause an imminent apprehension of a harmful or offensive contact which causes an imminent apprehension of a harmful or offensive contact with apparent ability to do so. 2 words alone 3 future threats c. IIED 1. A volitional act which is extreme and outrageous conduct done with the intent or recklessly to cause severe emotional distress. 2. Transferred intent only if the third person witnesses the conduct, is a close family member of the recipient of the behavior and the Defendant knows of the presence. d. false imprisonment 1. A volitional act done with the intent to imprison which causes imprisonment. 2. Plaintiff must be aware or suffer a harm. 3. Must be imprisoned within a confined space.

4. No cause of action if reasonable means of escape. 5. by threats e. substantial certainty f. defenses 1. consent 2. self-defense 3. defense of others 4. defense of property 5. arrest 6. unreasonable/reasonable mistake 7. implied consent in a medical emergency 8. shoplifter privilege ii. Intentional torts against property a. trespass to land 1. intentionally entering a piece of land without permission that turns out to be belong to the Plaintiff 2. wrongfully remaining, failure to remove 3. nominal damages 4. possessor has cause b. trespass to chattels 1. intentionally interfering with use and possession of chattel 2. damages is rental value c. conversion 1. interference with use and possession of chattel to such an extent that it is appropriate to award Plaintiff replacement value. 3. STRICT LIABILITY a. There are five strict liability situations. Remember that strict liability is on one end of the Spectrum of Badness. The Defendant will be liable even if he acted with all due care. The other point to be made here is this category does NOT include so-called strict products liability. Strict liability is tested frequently on the MBE. b. Artificial condition on the land. This is Rylands v. Fletcher. An artificial condition on the land that is safe unless it escapes. c. Abnormally dangerous activities. The outlines confuse Rylands with abnormally dangerous activities. Four categories: nuclear reactor, blowing things up or storing explosives, commercial pest control, and crop dusting. Probably for damage on ground caused by plane crash. Does not apply to toxic chemicals or gasoline tankers. d. trespassing cattle. Damage done to real property caused by trespassing herdable animals.

e. wild dangerous animals. A domesticated animal is one which is by custom devoted to the service of mankind in the community in question. A wild animal is one which is not domesticated. Zoos only liable if negligent. f. domesticated dangerous animals. Strict liability if owner knows or should know of dangerous propensity. So-called one bite rule. g. defenses. i. limited to scope of risk ii. assumption of risk iii. contributory neg not a defense 4. PRODUCTS LIABILITY a. Three theories of recovery--negligence, express and implied warranties and strict products liability. Products liability in negligence is like regular negligence except no requirement of privity. Warranties are covered in Sales. The rest of the discussion here is strict products liability. b. The beginning is three kinds of product defects i. manufacturing defect is a product that deviates from the blueprint or manufacturing process. ii. design defect. The product is made according to specifications but the design is itself defective. iii. warning/labeling. Two varieties. First a product that is safe if there is some adequate warning or labeling, but the product would be unreasonably dangerous without the warning. Second, an unavoidably dangerous product of high social utility, typically drugs. c. Restatement of Torts 2nd section 402A. i. defective condition unreasonably dangerous ii. reaches the consumer or user in an unchanged condition iii. seller is in the business iv. defect is the cause of the injury v. seller is strictly liable even though he used all reasonable care and even though not in privity with user d. Two tests of "defective condition unreasonably dangerous" i. consumer expectation test ii. risk/utility test e. Consumer expectation test works well for manufacturing defect, risk/utility test better for design defect. Only manufacturing defect is truly strict liability. f. State of the art. Applies to design defect. A designer is

imputed to have knowledge of safer alternative designs. Do we look at the state of knowledge at time design decision was made or now? Majority rule is to use state of art at time design decision was made, but we impute knowledge to designer if a reasonable amount of research would have found it. g. defenses. The question here is whether contributory negligence is a defense. The authorities are all over the place. If products liability is strict contributory negligence should not be a defense. Since only manufacturing defect is really strict unforeseeable misuse or foreseeable unreasonable misuse by user is often a defense in a design defect case. My suggestion--contributory/comparative negligence is not a defense. Foreseeable unreasonable misuse and unforeseeable misuse are not defenses in bar land. True assumption of the risk is. 5. NUISANCE. Forget public nuisance. Private nuisance is a substantial unreasonable interference with use and enjoyment of the land. Often appropriate when trespass does not lie because no physical invasion of land. 6. LANDOWNER LIABILITY. a. Duty to persons on the land is reasonable care except towards unknown trespassers. For the most part the C/L distinctions of trespasser, invitee and licensee are dead. Duty to unknown trespasser is to avoid wanton and willful conduct that puts the trespasser at risk. b. Duty to business invitee is to inspect, warn and take reasonable measures to make safe. c. Duty is owned by possessor. d. Attractive nuisance is dead. Occupier owes a duty of reasonable care to foreseeable children on the land. e. Duty of possessor to persons outside the land is reasonable care. 7. DEFAMATION a. Written defamation is libel. Spoken defamation is slander. b. Defamation is a false injury damaging statement that is published. c. I think the level of badness is negligence in knowledge of falseness and in publication. I think at C/L defamation was strict liability. d. Difference between libel and slander. Damages are assumed if defamation is libel and P need not show actual pecuniary harm. If its slander P must show pecuniary harm unless it is slander per se. e. Slander per se is crime of moral turpitude, loathsome disease,

unfit to engage in his trade or profession, unchaste woman. g. Absolute privilege for judicial proceedings, legislative proceedings h. Constitutional defamation 8. PRIVACY a. Rarely tested b. false light. Publishing false statements that would be highly offensive to a reasonable person. c. commercial appropriation. Use of P's name for commercial gain without permission. d. intrusion on solitude. D invades P's private space in a manner which would be highly offensive to a reasonable person. e. Publicity of private life. Public disclosure of non-public detail of P's private life where the effect would be highly offensive to a reasonable person.