California Bar Examination Torts Syllabus

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.

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.

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.

What is proximate (legal) cause?

A limitation on liability for unforeseeable consequences. The defendant is liable only for harms that are the foreseeable result of the risk created (within the scope of the risk). Direct-cause cases generally find proximate cause unless the result is highly extraordinary; indirect cases turn on foreseeability of intervening forces and results.

Distinguish an intervening cause from a superseding cause.

An intervening cause arises after the defendant's act and contributes to the harm; if foreseeable (e.g., ordinary negligence, rescue, medical malpractice), it does not break the causal chain. A superseding cause is an unforeseeable intervening force (e.g., intentional crimes, acts of God) that breaks the chain and cuts off the defendant's liability.

What types of compensatory damages are recoverable in a negligence action?

The plaintiff may recover for past and future medical expenses, lost earnings and lost earning capacity, and pain and suffering (including emotional distress). Damages must be proven with reasonable certainty (not speculative) and must be causally linked to the injury. Personal-injury damages are generally not reduced to present value for past losses but future losses are.

What is the eggshell (thin-skull) plaintiff rule?

The defendant takes the plaintiff as he finds him: once liability is established, the defendant is liable for the full extent of harm even if the plaintiff's pre-existing condition or unusual vulnerability made the injury far greater than foreseeable. The extent of damages need not be foreseeable—only some harm must be.

When are punitive damages available in tort, and what is the constitutional limit?

Punitive damages require conduct that is willful, wanton, malicious, or in reckless disregard of others' rights—not mere negligence. They punish and deter. Due process limits the ratio of punitive to compensatory damages; the Supreme Court has indicated single-digit ratios are generally the constitutional ceiling.

What is the duty to mitigate (avoidable consequences) in tort?

A plaintiff cannot recover for damages that could have been avoided through reasonable effort (e.g., seeking medical treatment). Damages attributable to the plaintiff's failure to mitigate are not recoverable. In comparative-fault jurisdictions, failure to mitigate may instead reduce recovery proportionally.

What is contributory negligence and its effect?

A plaintiff's own failure to exercise reasonable care for his own safety. In the few pure contributory-negligence jurisdictions, it is a complete bar to recovery—any plaintiff fault, however slight, defeats the claim (subject to the last clear chance doctrine). Most states have replaced it with comparative negligence.

Distinguish pure from modified comparative negligence.

Pure comparative: the plaintiff recovers damages reduced by his own percentage of fault, even if 99% at fault. Modified comparative: the plaintiff recovers (reduced by fault) only if his fault is below the threshold—either 'not greater than 50%' or 'less than 50%' depending on the state; at/above it, recovery is barred. California follows pure comparative negligence.

What are express and implied assumption of risk?

Express assumption: the plaintiff agrees in advance (often by contract/waiver) to relieve the defendant of a duty; bars recovery unless the waiver is void (gross negligence, public interest, unconscionable). Implied assumption: the plaintiff voluntarily and knowingly encounters a known risk; in comparative-fault states it is often merged into the comparative analysis.

What is the last clear chance doctrine?

A plaintiff's rebuttal to contributory negligence: even if the plaintiff was negligent, the defendant is liable if the defendant had the last clear chance to avoid the harm but failed to do so. It applies in contributory-negligence jurisdictions; comparative-negligence states have largely abolished it.

What activities trigger strict liability as abnormally dangerous, and what factors are considered?

An activity is abnormally dangerous if it creates a foreseeable, highly significant risk that cannot be eliminated by reasonable care and is not a matter of common usage (e.g., blasting, toxic chemicals, explosives). The defendant is strictly liable for harm flowing from that risk regardless of precautions taken. Liability is limited to harm within the kind of risk that makes the activity dangerous.

What is the rule for strict liability for wild animals?

An owner/possessor of a wild animal (non-domesticated) is strictly liable for harm caused by the animal's dangerous propensities characteristic of that species (or known to the owner), even with utmost care. Strict liability does not extend to injuries unrelated to the animal's dangerous nature, and licensees/invitees—but not trespassers—are generally protected.

What is the rule for liability for domestic animals (the 'one-bite' rule)?

An owner of a domestic animal is liable for harm only if the owner knew or had reason to know of the animal's dangerous/vicious propensities abnormal for its class (knowledge often shown by a prior incident—the 'one-bite' rule). Absent such knowledge, liability requires negligence. Many jurisdictions impose strict liability for dog bites by statute.

What are the elements of a strict products liability claim?

(1) The defendant is a commercial supplier (manufacturer, distributor, retailer); (2) the product was defective when it left the defendant's control; (3) the defect existed without substantial alteration; (4) the defect caused the plaintiff's injury (actual and proximate cause); and (5) damages. Privity is not required; foreseeable users/bystanders may recover.

What are the three types of product defects?

(1) Manufacturing defect—the product departs from its intended design (one bad unit); (2) Design defect—the entire product line is unreasonably dangerous as designed; and (3) Warning/marketing defect—failure to provide adequate warnings or instructions about non-obvious dangers. Each can support strict liability.

What are the two tests for a design defect?

(1) Consumer-expectation test: the product is defective if it is more dangerous than an ordinary consumer would expect. (2) Risk-utility test: the product is defective if its risks outweigh its utility AND a reasonable alternative design existed that was economically and technologically feasible. Many jurisdictions require proof of a feasible alternative design.

What implied warranties protect product purchasers, and what do they cover?

Implied warranty of merchantability: goods sold by a merchant are fit for their ordinary purpose. Implied warranty of fitness for a particular purpose: when the seller knows the buyer's special purpose and the buyer relies on the seller's skill, the goods must fit that purpose. Breach is a no-fault claim; defenses include disclaimers, limitations, and notice requirements.

What defenses apply in products liability actions?

Comparative/contributory fault (depending on jurisdiction), assumption of risk, and product misuse that is unforeseeable. Foreseeable misuse does not bar recovery. In strict-liability claims, ordinary contributory negligence (mere failure to discover the defect) is generally not a defense, but knowingly using a defective product is. The state-of-the-art defense may apply to design/warning claims.

What are the elements of defamation?

(1) A defamatory statement (one that harms reputation); (2) of or concerning the plaintiff; (3) publication to a third party (intentionally or negligently); (4) damages to reputation; and (5) for matters of public concern, fault (negligence or actual malice) and falsity. The statement must be a false assertion of fact, not pure opinion.

Distinguish libel from slander, and identify the slander per se categories.

Libel is defamation in permanent/written form; general damages are presumed. Slander is spoken defamation requiring proof of special (pecuniary) damages—unless it is slander per se. Slander per se categories (damages presumed): statements imputing (1) a serious crime, (2) a loathsome disease, (3) unfitness for one's business/profession, or (4) sexual misconduct/unchastity.

What constitutional fault standards apply to defamation (NYT v. Sullivan and Gertz)?

Public officials/public figures must prove 'actual malice'—knowledge of falsity or reckless disregard for the truth (a subjective standard), and must also prove falsity. Private figures suing on matters of public concern need only prove negligence as to falsity to recover actual damages; actual malice is required for presumed or punitive damages.

What are the four invasion-of-privacy torts?

(1) Appropriation of the plaintiff's name or likeness for commercial advantage; (2) Intrusion upon seclusion (highly offensive to a reasonable person); (3) Public disclosure of private facts (highly offensive, not of legitimate public concern); and (4) False light (publicly attributing false views/conduct, highly offensive). Truth is no defense to intrusion or appropriation; the latter two require publicity.

What are the elements of intentional misrepresentation (fraud/deceit)?

(1) A false representation of a material fact; (2) scienter (knowledge of falsity or reckless disregard); (3) intent to induce reliance; (4) actual and justifiable reliance by the plaintiff; and (5) damages. Negligent misrepresentation, by contrast, requires only negligence as to truth and is generally limited to commercial settings with known/foreseeable plaintiffs.

Distinguish private nuisance from public nuisance.

Private nuisance: a substantial and unreasonable interference with another's use and enjoyment of land; recovery requires the plaintiff have a possessory interest. Public nuisance: an unreasonable interference with a right common to the general public; a private plaintiff may sue only by showing harm different in kind from that suffered by the public.

What is vicarious liability under respondeat superior, and how are independent contractors treated?

An employer is vicariously liable for torts committed by an employee within the scope of employment (including minor 'frolic/detour' deviations, but not major frolics or generally intentional torts unless job-related). A hiring party is generally NOT liable for an independent contractor's torts—except for non-delegable duties or inherently dangerous activities.

How does joint and several liability work, with contribution and indemnity?

Under joint and several liability, each of multiple tortfeasors causing a single indivisible injury is liable for the entire judgment; the plaintiff may collect the full amount from any one. Contribution lets a tortfeasor who pays more than its share recover the excess from others (often by comparative fault). Indemnity shifts the entire loss to a more culpable party (e.g., manufacturer to retailer).

Distinguish a wrongful death action from a survival action.

A wrongful death action is brought by the decedent's beneficiaries/estate to recover for THEIR losses from the death (loss of support, companionship, consortium). A survival action is brought by the estate for the claims the decedent could have brought had he lived (the decedent's own pre-death pain, suffering, and economic losses); it 'survives' the victim's death.