Torts—Mini Outline

About half of MBE Torts is negligence, so that's where we start—duty, breach, causation, damages, defenses—then intentional torts, strict liability and products, and the dignitary torts.

1. Negligence

The framework is duty → breach → causation → damages, then defenses.

Duty

• A duty of reasonable care is owed to foreseeable plaintiffs in the "zone of danger" (Cardozo)—and to rescuers. The standard is the reasonably prudent person: no allowance for the defendant's own shortcomings, but held to any superior skill/knowledge. Children are held to a like-age/experience/intelligence standard unless engaged in an adult activity; professionals to the average member of their profession (physicians must also get informed consent).
• Premises liability: undiscovered trespasser—no duty; discovered/anticipated trespasser—warn of known, hidden, artificial death traps; licensee (social guest)—warn of known concealed dangers; invitee—reasonable inspection for concealed dangers. Attractive nuisance protects trespassing children from artificial dangers they can't appreciate.
• Affirmative duty to act: generally none, unless a special relationship exists, the defendant caused the peril, or the defendant began to rescue (and must not leave the plaintiff worse off).
• Negligence per se: borrow a criminal statute's standard when the plaintiff is in the protected class and suffered the type of harm the statute targets.
• NIED: the plaintiff must be in the zone of physical danger and suffer physical symptoms—or (bystander rule) be closely related, present, and personally observe the injury.

Breach

• Show what the defendant did unreasonably (risk-utility / Hand formula), or invoke res ipsa loquitur—the accident ordinarily doesn't happen without negligence and the instrumentality was in the defendant's exclusive control.

Causation

• Actual cause: "but for." Multiple sufficient causes → substantial-factor test; unidentifiable defendants → burden shifts (alternative liability).
• Proximate cause: liability only for foreseeable harms. Intervening forces that are foreseeable (negligent rescue, medical treatment, subsequent accidents) don't cut off liability; unforeseeable superseding causes do.

Damages & defenses

• Damages: actual injury required (not presumed); the eggshell-skull rule applies. Duty to mitigate; no punitive damages absent wanton conduct.
• Comparative fault: pure (recovery reduced by the plaintiff's %) or modified (barred above 50%). Assumption of risk and, in contributory-negligence states, last clear chance.

2. Intentional torts

• Battery—intentional harmful or offensive contact with the plaintiff's person (or anything connected). Assault—intentionally causing reasonable apprehension of an immediate battery (words alone rarely suffice). False imprisonment—intentional confinement to a bounded area with no reasonable escape, of which the plaintiff is aware.
• IIED—extreme and outrageous conduct causing severe distress (bystander recovery if a close relative, present, and the defendant knew it). Trespass to land—physical invasion (intent to enter, not to trespass). Trespass to chattels / conversion—interference with personal property; serious interference is conversion (pay full value).
• Transferred intent applies among assault, battery, false imprisonment, trespass to land, and trespass to chattels.
• Defenses: consent; protective privileges (self, others, property—reasonable force, no deadly force for property alone); public and private necessity (private necessity leaves the defendant liable for actual damage); discipline.

3. Strict liability

• Animals: wild animals—strict liability; domestic animals—only with knowledge of a dangerous propensity. Abnormally dangerous activities—foreseeable serious risk that can't be eliminated with reasonable care, and uncommon in the area.

4. Products liability

• Strict products liability: a commercial supplier sells a defective product (manufacturing, design, or warning defect) that reaches the user without substantial alteration and causes injury to a foreseeable user during a foreseeable use.
• Also available: negligence, and warranty theories (merchantability, fitness). Design defects use a risk-utility or reasonable-alternative-design test.

5. Defamation

• Elements: a defamatory statement of fact identifying the plaintiff, publication to a third party, and damages. Libel (permanent)—damages presumed; slander—special damages required unless slander per se (crime, loathsome disease, business/profession, unchastity).
• Constitutional overlay: for matters of public concern the plaintiff must prove falsity and fault—actual malice for public figures/officials, negligence for private figures.
• Defenses: truth, consent, and absolute/qualified privileges.

6. Privacy, misrepresentation & economic torts

• Privacy: appropriation, intrusion upon seclusion, false light, and public disclosure of private facts.
• Misrepresentation: intentional (fraud) requires a false material statement, scienter, intent to induce reliance, justifiable reliance, and damages; negligent misrepresentation is narrower.
• Others: tortious interference with contract/prospective advantage, and nuisance (unreasonable interference with the use and enjoyment of land).

7. Vicarious liability

• Respondeat superior: an employer is liable for an employee's torts within the scope of employment (intentional torts usually outside scope unless force is part of the job or it serves the employer). Generally no liability for independent contractors (exceptions: inherently dangerous work, non-delegable duties, invitees on business premises).
• Joint & several liability with contribution and indemnity among tortfeasors.