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Torts Overview
Torts Overview
TORTS
OVERVIEW
I. IN BRIEF
A tort is a civil wrong committed against another. A tort may arise from the defendant’s
intentional conduct, negligent conduct, or conduct that creates liability in the absence of
fault (strict liability torts). A typical Torts essay question will involve multiple torts committed
by and against multiple parties. For each potential tort, first identify the prima facie case
elements of the tort and apply the elements to the facts provided. For those torts for which
the prima facie case is established, consider any defenses that are supported by the facts.
Finally, consider any supplemental rules that may apply, typically involving multiple parties
(e.g., vicarious liability and joint tortfeasor rules). A Torts MBE question may test on any of the
above issues.
2. Assault
3. False imprisonment
a. Defined: An intentional act or omission by the defendant that causes the plaintiff
to be confined or restrained to a bounded area
5. Trespass to land
b. The defendant need not have intended to commit a trespass, only to do the act
of entering onto land
6. Trespass to chattels
c. The defendant need not have intended to commit a trespass to the chattels,
only to do the act that causes interference with chattel
7. Conversion
b. The defendant need not have intended a conversion, only to do the act that
constitutes a conversion
c. The interference with the chattel is so serious as to require the defendant to pay
the full value of the chattel (in effect, a forced sale of the chattel)
TORTS OVERVIEW 3.
2. Both the tort intended and the tort committed must be battery, assault, false impris-
onment, trespass to land, or trespass to chattels
b. The plaintiff must have capacity to consent and the defendant must not exceed
the bounds of the consent
3. Necessity
A. Defamation
1. Apply the common law prima facie case: Defamatory language concerning the plain-
tiff published to a third person that causes damage to the plaintiff’s reputation
a. Damage will be presumed if the defamation is libel (in writing or other perma-
nent form) or if it is slander (spoken) within one of the four per se categories
(business or profession, loathsome disease, crime of moral turpitude, or unchas-
tity of a woman); otherwise, special (pecuniary) damages must be shown
2. Apply the constitutional rules if the plaintiff is a public official or figure, or if the
defamation involves a matter of public concern:
b. Public officials or figures must prove “actual malice,” i.e., that the statement was
made with knowledge of its falsity or reckless disregard of its truth or falsity
c. Private figures suing on a matter of public concern must show (i) at least negli-
gence as to truth or falsity, and (ii) actual injury (no presumed damages)
a. Truth (when the constitutional requirement of proof of falsity does not apply)
c. Qualified privilege for matters in the interest of the publisher and/or the recip-
ient (may be lost if the statement is outside the scope of the privilege or made
with actual malice)
a. Unauthorized use of the plaintiff’s picture or name for the defendant’s commer-
cial advantage
C. Misrepresentation
1. Intentional misrepresentation (fraud)
a. Defined: Misrepresentation by the defendant with scienter (knowledge of falsity
or reckless disregard as to truth/falsity) and intent to induce reliance, causation
(actual reliance on misrepresentation), justifiable reliance, and damages
b. The defendant generally has no duty to disclose material facts but may be liable
for active concealment
2. Negligent misrepresentation
a. Defined: Misrepresentation by the defendant in a business or professional
capacity, breach of duty to the plaintiff, causation (actual reliance on misrepre-
sentation), justifiable reliance, and damages
b. The defendant owes a duty only to those to whom the misrepresentation was
directed or those who the defendant knew would rely on it
E. Malicious Prosecution
1. Defined: Initiating a criminal proceeding against the plaintiff ending in plaintiff’s
favor, absence of probable cause for the prosecution, improper purpose (malice),
and damages
IV. NEGLIGENCE
3. The breach of duty was the actual and proximate cause of the plaintiff’s injury
B. Standards of Care
1. The general standard of care is a reasonable person (average mental ability but the
same physical characteristics as the defendant)
2. Professionals must exercise the knowledge and skill of a member of the profession
in good standing
3. Children must conform to standard of care of a child of like age, education, intel-
ligence, and experience (except the adult standard applies if the child is engaged in
an adult activity)
4. A landowner’s standard of care under traditional rules usually depends on the status
of the person injured on the property
a. Trespassers
b. Licensees
1) Licensees are those who come onto the land with express or implied
permission but for their own purpose (includes social guests)
2) The landowner’s duty is the same as for discovered trespassers except that
it applies to all dangerous artificial and natural conditions
c. Invitees
2) The landowner’s duty is the same as for licensees but with the additional
duty to reasonably inspect for dangerous conditions
d. Note that the ordinary reasonable care standard applies for active operations
on the property and for conditions on the land that injure children (the “attrac-
tive nuisance” doctrine)
5. A criminal statute may serve to establish a specific standard of care in place of the
general standard of ordinary care if:
a. The plaintiff is within the class that the statute was intended to protect
a. General basis of liability: The defendant breaches a duty to the plaintiff by creating a
risk of physical injury and the plaintiff suffers emotional distress as a result
1) The plaintiff must be within the “zone of danger” and ordinarily must suffer
physical symptoms from the distress
C. Breach of Duty
1. Whether the defendant breached the applicable duty of care is a question for the
trier of fact
2. Under res ipsa loquitur, the fact that an injury occurred may create an inference that
the defendant breached his duty. Three requirements:
8. TORTS OVERVIEW
a. The accident causing the injury is a type that would not have occurred absent
negligence
D. Causation
1. Actual cause
a. Usually established by the “but for” test—an act is the actual cause of an injury
when it would not have occurred but for the act
b. Joint causes—when two acts bring about an injury and either one alone would
have sufficed, either of the acts is an actual cause of the injury if it was a
“substantial factor” in bringing it about
c. Alternative causes—when two acts were negligent but it is not clear which was
the actual cause of the injury, the burden shifts to each of the negligent actors
to show that his negligent act was not the actual cause
2. Proximate cause
b. The defendant is liable for all harmful results that are the normal incidents of
and within the increased risk from the defendant’s actions
c. Indirect cause cases: An intervening force occurs after the defendant’s negli-
gent act and combines with it to cause the injury
E. Damages
1. The plaintiff must show actual harm or injury to complete the prima facie case
2. The plaintiff can recover economic damages (e.g., medical expenses) and noneco-
nomic damages (e.g., pain and suffering)
3. The extent or severity of the harm need not have been foreseen (the tortfeasor
takes his victim as he find him)
TORTS OVERVIEW 9.
F. Defenses to Negligence
1. Contributory negligence—the standard of care required of a plaintiff to avoid injury is
judged using a reasonable person standard
2. Comparative negligence—almost all states have rejected the rule that a plaintiff’s
contributory negligence will totally bar her recovery
V. STRICT LIABILITY
Imposes liability on a defendant for the plaintiff’s injury even though the defendant was
not negligent
B. Extent of Liability
1. The harm must result from the kind of danger that makes the animal or activity
abnormally dangerous
2. Most states apply their comparative fault rules to strict liability cases
10. TORTS OVERVIEW
A. General Principles
1. Liability for defective products may be brought under various theories of liability:
intent, negligence, strict liability, implied warranties of merchantability and fitness for
a particular purpose, and representation theories
a. A product has a manufacturing defect when it varies from the other products
in the manufacturing process and is dangerous beyond the expectation of the
ordinary consumer
b. A product has a design defect when all products of the line have dangerous
characteristics because of mechanical features, packaging, or inadequate
warnings, and a less dangerous modification or alternative was economically
feasible
a. Even a retailer who had no opportunity to inspect the product may be liable as a
commercial supplier
2. The defect must have existed when the product left the defendant’s control
VII. NUISANCE
A. Types of Nuisance Actions
1. A nuisance is a type of harm that may be based on intent, negligence, or strict
liability
TORTS OVERVIEW 11.
3. A public nuisance is an act that unreasonably interferes with the health, safety, or
property rights of the community
2. One who has just moved onto land adjacent to a nuisance may bring a nuisance
action; i.e., “coming to the nuisance” is not a defense
A. Vicarious Liability
1. The defendant may be vicariously liable for the tort of another based on the relation-
ship between the defendant and the tortfeasor
4. Automobile owner-driver—an automobile owner is not vicariously liable for the negli-
gence of the driver unless the state has adopted:
a. A permissive use statute (imposing liability for the torts of anyone driving with
permission), or
b. The family purpose doctrine (imposing liability for the torts of a family member
driving with permission)
5. Parent-child—a parent is not vicariously liable for a child’s torts at common law (but
statutes in many states impose limited liability for the child’s intentional torts)
12. TORTS OVERVIEW
6. Note that, regardless of whether vicarious liability applies, the defendant can be
liable for his own negligence, e.g., negligence in hiring the employee, supervising
the child, or entrusting the car to the driver
B. Multiple Defendants
1. Under the rule of joint and several liability, when two or more tortious acts combine
to proximately cause an indivisible injury to the plaintiff, each tortfeasor is jointly and
severally liable for the injury
a. The plaintiff can recover his entire damages from any one of the tortfeasors
b. Many states have abolished the rule for (i) those tortfeasors less at fault than the
plaintiff, or (ii) all tortfeasors for noneconomic damages
2. If joint and several liability applies, contribution allows a tortfeasor who paid more
than his share of the damages to recover the excess from other tortfeasors in
proportion to their fault
D. Tort Immunities
1. Intra-family tort immunities—the rule that one family member could not sue another
in tort for personal injury is abolished in most states, except that children generally
cannot sue their parents for their exercise of parental supervision