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
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.
elements of the tort(s) tested.
The second approach uses what I call the spectrum of badness. On
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.
v.
defect is the cause of the injury
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.