California Bar Examination Torts Syllabus

Torts syllabus — full chapter and topic list

Expand any chapter to see its topics and sub-topics. This is the whole examinable outline for Torts in California Bar Examination, not a summary of it.

1. 1

   Intentional Torts and Defenses

   3 topics

   • Intentional Torts to the Person
     • Battery and assault
     • False imprisonment
     • Intentional infliction of emotional distress
   • Intentional Torts to Property
     • Trespass to land and chattels
     • Conversion
   • Defenses to Intentional Torts
     • Consent
     • Self-defense and defense of others
     • Defense of property and necessity
2. 2

   Negligence

   5 topics

   • Duty of Care and Standard of Care
     • Reasonable person standard and special duties
     • Duties to invitees, licensees, and trespassers
     • Affirmative duties to act and special relationships
   • Breach
     • Negligence per se
     • Res ipsa loquitur
   • Actual and Proximate Causation
     • But-for and substantial factor tests
     • Foreseeability and intervening/superseding causes
   • Damages and the Eggshell Plaintiff
   • Defenses to Negligence
     • California pure comparative negligence
     • Assumption of risk
3. 3

   Strict Liability and Products Liability

   4 topics

   • Abnormally Dangerous Activities
   • Liability for Animals
   • Products Liability Theories
     • Manufacturing defects
     • Design defects and the consumer expectation/risk-utility tests
     • Failure to warn
   • Defenses in Products Liability
4. 4

   Other Torts and Vicarious Liability

   6 topics

   • Defamation
     • Libel and slander, slander per se
     • Constitutional limits and public figures
   • Invasion of Privacy
   • Misrepresentation and Fraud
   • Nuisance (Private and Public)
   • Vicarious Liability and Joint Tortfeasors
     • Respondeat superior
     • Joint and several liability and contribution
   • Wrongful Death and Survival Actions

Torts flashcards for California Bar Examination

23 of 50 cards from the Torts deck — real questions with worked answers.

1. What are the elements of battery?

   (1) A volitional act by the defendant; (2) intent to cause a harmful or offensive contact (or imminent apprehension of it); (3) actual harmful or offensive contact with the plaintiff's person; and (4) causation. Contact is offensive if it would offend a reasonable person's sense of dignity. Includes contact with anything connected to the plaintiff (e.g., a held object).

2. What are the elements of assault?

   (1) An act by the defendant creating a reasonable apprehension in the plaintiff (2) of an imminent harmful or offensive contact, (3) intent to cause that apprehension or the contact, and (4) causation. Words alone are usually insufficient; apparent present ability suffices, and the plaintiff must be aware of the threat.

3. What are the elements of false imprisonment?

   (1) An act or omission by the defendant that confines or restrains the plaintiff to a bounded area, (2) intent to confine, (3) causation, and (4) the plaintiff is either aware of the confinement or harmed by it. There must be no reasonable means of escape; moral pressure or future threats are insufficient.

4. What are the elements of intentional infliction of emotional distress (IIED)?

   (1) Extreme and outrageous conduct (beyond all bounds of decency); (2) intent to cause severe emotional distress or recklessness as to it; (3) causation; and (4) severe emotional distress. IIED is the only intentional tort to the person requiring actual damages (severe distress); no physical injury is required.

5. What is the doctrine of transferred intent and to which torts does it apply?

   If a defendant intends to commit a tort against one person but instead injures another, or commits a different tort, the intent transfers. It applies among the five 'trespassory' torts: battery, assault, false imprisonment, trespass to land, and trespass to chattels. It does not apply to IIED or conversion.

6. What are the elements of trespass to land?

   (1) Physical invasion of the plaintiff's real property (by a person or tangible object), and (2) intent to enter that land (intent to trespass is not required; mistake is no defense). No actual damages are required. Intangible invasions (noise, odor, light) are generally addressed through nuisance, not trespass.

7. How does trespass to chattels differ from conversion?

   Both involve intentional interference with another's personal property. Trespass to chattels is a minor interference (slight damage or brief dispossession); damages equal the actual harm or rental value. Conversion is a serious interference so substantial it justifies requiring the defendant to pay full value; the remedy is the chattel's full market value (a forced sale).

8. What is the measure of damages for conversion?

   The plaintiff recovers the full fair market value of the chattel at the time of the conversion, effectively a forced sale to the defendant. Alternatively, the plaintiff may seek replevin (return of the specific chattel). This contrasts with trespass to chattels, where recovery is limited to actual damages.

9. How does consent operate as a defense to intentional torts, and what voids it?

   Valid consent (express or implied by custom/conduct) bars liability. Consent is invalid if obtained by fraud or duress, given by someone lacking capacity (minors, intoxicated, incompetent), or if the defendant exceeds the scope of consent. Consent to a criminal act is a defense in most jurisdictions.

10. What are the rules for self-defense as a defense to intentional torts?

    A person may use reasonable force to defend against an imminent or actual threat. Force must be proportional; deadly force is permitted only when facing a threat of serious bodily harm or death. Many jurisdictions impose no duty to retreat (especially in one's home); the defense extends to reasonable mistakes about the threat.

11. What force may be used in defense of property?

    Reasonable, non-deadly force may be used to prevent a tortious interference with property, after a request to desist (unless futile). Deadly force or deadly mechanical devices (e.g., spring guns) may never be used solely to protect property. The defense is not available against someone with a privilege (e.g., necessity).

12. Compare public and private necessity as defenses.

    Public necessity (acting for the public good in an emergency) is an absolute/complete defense—no liability for resulting damage. Private necessity (acting to protect one's own interests) is a qualified defense: the actor is not liable for the trespass itself but must pay for any actual damage caused to the property.

13. Under Palsgraf, who is a foreseeable plaintiff, and how do the Cardozo and Andrews views differ?

    A duty of care is owed only to foreseeable plaintiffs within the zone of danger. Cardozo (majority): duty runs only to those foreseeably endangered by the defendant's conduct. Andrews (dissent): a duty is owed to everyone if the defendant's conduct creates a risk to anyone, treating foreseeability as a proximate-cause question.

14. What is the general standard of care in negligence?

    The reasonably prudent person under the same or similar circumstances—an objective standard. The defendant's own mental shortcomings or inexperience are not considered, but physical disabilities (e.g., blindness) are factored in, and superior knowledge/skill the defendant actually possesses is taken into account.

15. What standards of care apply to children and to professionals?

    A child is held to the conduct of a reasonable child of like age, intelligence, and experience (a subjective standard)—except children engaged in adult/inherently dangerous activities, who are held to the adult standard. Professionals must exercise the knowledge and skill of an average member of their profession in good standing.

16. When does a person have an affirmative duty to act or rescue?

    There is no general duty to act. Exceptions creating a duty: a special relationship (parent-child, common carrier-passenger, innkeeper-guest, employer-employee); the defendant created the peril; the defendant voluntarily undertook to act (must do so reasonably—Good Samaritan); or by contract or statute.

17. What duties does a land possessor owe to trespassers, licensees, and invitees?

    Trespassers (unknown): no duty except to refrain from willful/wanton harm; known/anticipated trespassers: warn of hidden, artificial, highly dangerous conditions. Licensees (social guests): warn of known concealed dangers. Invitees (business/public visitors): duty to inspect and make safe, plus warn of known and reasonably discoverable dangers.

18. What are the elements of negligence per se?

    A statute's standard replaces the common-law duty/breach when: (1) the plaintiff is within the class the statute was meant to protect, and (2) the harm is of the type the statute was meant to prevent. Violation establishes duty and breach (a presumption of negligence); plaintiff must still prove causation and damages. Excused violations may not apply.

19. What constitutes a breach of duty in negligence?

    Breach occurs when the defendant's conduct falls below the applicable standard of care. The plaintiff must identify the specific wrongful conduct and show it was unreasonable, then prove the breach factually and legally caused the injury. Breach can be shown by custom, statute (negligence per se), or res ipsa loquitur.

20. What is the Hand Formula for determining breach?

    Judge Learned Hand's formula: a defendant breaches when the burden of taking precautions (B) is less than the probability of harm (P) multiplied by the gravity of the loss (L)—i.e., breach if B < P × L. It is a cost-benefit analysis of whether reasonable care required the untaken precaution.

21. What are the elements of res ipsa loquitur and its effect?

    Allows an inference of breach when: (1) the accident is of a type that ordinarily does not occur absent negligence, and (2) the instrumentality was within the defendant's exclusive control (and the plaintiff did not contribute). Effect: establishes a permissible inference of negligence, defeating a directed verdict for the defendant.

22. What is the test for actual (factual) cause?

    The 'but-for' test: the injury would not have occurred but for the defendant's conduct. The defendant's act must be a necessary condition of the harm. When the but-for test fails due to multiple sufficient causes, courts apply the substantial factor test instead.

23. How is actual cause proven with multiple defendants or concurrent causes?

    Substantial factor test: where two or more causes combine and each alone would have caused the harm, each is a cause if it was a substantial factor. Alternative liability (Summers v. Tice): when two defendants are negligent but only one caused the harm, the burden shifts to each to prove they did not cause it.

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